Independent Contractor Agreement with Haemker for 8th Street Park Picnic Shelter InstallAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
8TH STREET PARK PICNIC SHELTER INSTALLATION
PROJECT # 6003.53
THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made this
15�% day of August, 2014, and entered into by and between the City of Meridian, a
municipal corporation organized under the laws of the State of Idaho, hereinafter referred
to as "CITY", 33 East Broadway Avenue, Meridian, Idaho 83642, and Haemker
Construction, Inc, hereinafter referred to as "CONTRACTOR", whose business address is
2414 E. Railroad St., Nampa, ID 83687 and whose Public Works Contractor License # is
C -13663-B-3-4.
INTRODUCTION
Whereas, the City has a need for services involving 8TH STREET PARK
PICNIC SHELTER INSTALLATION; and
WHEREAS, the Contractor is specially trained, experienced and competent
to perform and has agreed to provide such services;
NOW, THEREFORE, in consideration of the mutual promises, covenants,
terms and conditions hereinafter contained, the parties agree as follows:
TERMS AND CONDITIONS
1. Scope of Work:
1.1 CONTRACTOR shall perform and furnish to the City upon execution of this
Agreement and receipt of the City's written notice to proceed, all services and work,
and comply in all respects, as specified in the document titled "Scope of Work" a
copy of which is attached hereto as Attachment "A" and incorporated herein by this
reference, together with any amendments that may be agreed to in writing by the
parties.
1.2 All documents, drawings and written work product prepared or produced by
the Contractor under this Agreement, including without limitation electronic data
files, are the property of the Contractor; provided, however, the City shall have the
right to reproduce, publish and use all such work, or any part thereof, in any
manner and for any purposes whatsoever and to authorize others to do so. If any
such work is copyrightable, the Contractor may copyright the same, except that, as
to any work which is copyrighted by the Contractor, the City reserves a royalty -free,
non-exclusive, and irrevocable license to reproduce, publish and use such work, or
any part thereof, and to authorize others to do so.
1.3 The Contractor shall provide services and work under this Agreement
consistent with the requirements and standards established by applicable federal,
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state and city laws, ordinances, regulations and resolutions. The Contractor
represents and warrants that it will perform its work in accordance with generally
accepted industry standards and practices for the profession or professions that
are used in performance of this Agreement and that are in effect at the time of
performance of this Agreement. Except for that representation and any
representations made or contained in any proposal submitted by the Contractor
and any reports or opinions prepared or issued as part of the work performed by
the Contractor under this Agreement, Contractor makes no other warranties, either
express or implied, as part of this Agreement.
1.4 Services and work provided by the Contractor at the City's request under this
Agreement will be performed in a timely manner in accordance with a Schedule of
Work, which the parties hereto shall agree to. The Schedule of Work may be
revised from time to time upon mutual written consent of the parties.
2. Consideration
2.1 The Contractor shall be compensated on a Not -To -Exceed basis as provided
in Attachment B "Payment Schedule" attached hereto and by reference made a
part hereof for the Not -To -Exceed amount of $21,246.51.
2.2 The Contractor shall provide the City with a monthly statement and
supporting invoices, as the work warrants, of fees earned and costs incurred for
services provided during the billing period, which the City will pay within 30 days of
receipt of a correct invoice and approval by the City. The City will not withhold any
Federal or State income taxes or Social Security Tax from any payment made by
City to Contractor under the terms and conditions of this Agreement. Payment of
all taxes and other assessments on such sums is the sole responsibility of
Contractor.
2.3 Per the requirements of the CDBG Grant weekly certified payroll reports be
submitted to the City of Meridian.
2.4 Except as expressly provided in this Agreement, Contractor shall not be
entitled to receive from the City any additional consideration, compensation, salary,
wages, or other type of remuneration for services rendered under this Agreement
including, but not limited to, meals, lodging, transportation, drawings, renderings or
mockups. Specifically, Contractor shall not be entitled by virtue of this Agreement
to consideration in the form of overtime, health insurance benefits, retirement
benefits, paid holidays or other paid leaves of absence of any type or kind
whatsoever.
3. Term:
3.1 This agreement shall become effective upon execution by both parties, and
shall expire upon (a) completion of the agreed upon work, (b) or unless sooner
terminated as provided in Sections 3.2, 3.3, and Section 4 below or unless some
other method or time of termination is listed in Attachment A.
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3.2 Should Contractor default in the performance of this Agreement or materially
breach any of its provisions, City, at City's option, may terminate this Agreement by
giving written notification to Contractor.
3.3 Should City fail to pay Contractor all or any part of the compensation set forth
in Attachment B of this Agreement on the date due, Contractor, at the Contractor's
option, may terminate this Agreement if the failure is not remedied by the City
within thirty (30) days from the date payment is due.
3.4 TIME FOR EXECUTING CONTRACT AND LIQUIDATED DAMAGES
Upon receipt of a Notice to Proceed, the Contractor shall have 30(thirty)
calendar days to complete the work as described herein. Contractor shall be
liable to the City for any delay beyond this time period in the amount of
$250.00 (two hundred fifty dollars) per calendar day. Such payment shall be
construed to be liquidated damages by the Contractor in lieu of any claim or
damage because of such delay and not be construed as a penalty.
4. Termination:
4.1 If, through any cause, CONTRACTOR, its officers, employees, or agents fails
to fulfill in a timely and proper manner its obligations under this Agreement, violates
any of the covenants, agreements, or stipulations of this Agreement, falsifies any
record or document required to be prepared under this agreement, engages in
fraud, dishonesty, or any other act of misconduct in the performance of this
contract, or if the City Council determines that termination of this Agreement is in
the best interest of CITY, the CITY shall thereupon have the right to terminate this
Agreement by giving written notice to CONTRACTOR of such termination and
specifying the effective date thereof at least fifteen (15) days before the effective
date of such termination. CONTRACTOR may terminate this agreement at any
time by giving at least sixty (60) days notice to CITY.
In the event of any termination of this Agreement, all finished or unfinished
documents, data, and reports prepared by CONTRACTOR under this Agreement
shall, at the option of the CITY, become its property, and CONTRACTOR shall be
entitled to receive just and equitable compensation for any work satisfactorily
complete hereunder.
4.2 Notwithstanding the above, CONTRACTOR shall not be relieved of liability to
the CITY for damages sustained by the CITY by virtue of any breach of this
Agreement by CONTRACTOR, and the CITY may withhold any payments to
CONTRACTOR for the purposes of set-off until such time as the exact amount of
damages due the CITY from CONTRACTOR is determined. This provision shall
survive the termination of this agreement and shall not relieve CONTRACTOR of
its liability to the CITY for damages.
5. Independent Contractor:
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5.1 In all matters pertaining to this agreement, CONTRACTOR shall be acting as
an independent contractor, and neither CONTRACTOR nor any officer, employee
or agent of CONTRACTOR will be deemed an employee of CITY. Except as
expressly provided in Attachment A, Contractor has no authority or responsibility to
exercise any rights or power vested in the City and therefore has no authority to
bind or incur any obligation on behalf of the City. The selection and designation of
the personnel of the CITY in the performance of this agreement shall be made by
the CITY.
5.2 Contractor, its agents, officers, and employees are and at all times during the
term of this Agreement shall represent and conduct themselves as independent
contractors and not as employees of the City.
5.3 Contractor shall determine the method, details and means of performing the
work and services to be provided by Contractor under this Agreement. Contractor
shall be responsible to City only for the requirements and results specified in this
Agreement and, except as expressly provided in this Agreement, shall not be
subjected to City's control with respect to the physical action or activities of
Contractor in fulfillment of this Agreement. If in the performance of this Agreement
any third persons are employed by Contractor, such persons shall be entirely and
exclusively under the direction and supervision and control of the Contractor.
6. Indemnification and Insurance:
6.1 CONTRACTOR shall indemnify and save and hold harmless CITY from and
for any and all losses, claims, actions, judgments for damages, or injury to persons
or property and losses and expenses and other costs including litigation costs and
attorney's fees, arising out of, resulting from, or in connection with the performance
of this Agreement by the CONTRACTOR, its servants, agents, officers,
employees, guests, and business invitees, and not caused by or arising out of the
tortious conduct of CITY or its employees. CONTRACTOR shall maintain, and
specifically agrees that it will maintain, throughout the term of this Agreement,
liability insurance, in which the CITY shall be named an additional insured in the
minimum amounts as follow: General Liability One Million Dollars ($1,000,000) per
incident or occurrence, Automobile Liability Insurance One Million Dollars
($1,000,000) per incident or occurrence and Workers' Compensation Insurance, in
the statutory limits as required by law.. The limits of insurance shall not be deemed
a limitation of the covenants to indemnify and save and hold harmless CITY; and if
CITY becomes liable for an amount in excess of the insurance limits, herein
provided, CONTRACTOR covenants and agrees to indemnify and save and hold
harmless CITY from and for all such losses, claims, actions, or judgments for
damages or injury to persons or property and other costs, including litigation costs
and attorneys' fees, arising out of, resulting from , or in connection with the
performance of this Agreement by the Contractor or Contractor's officers, employs,
agents, representatives or subcontractors and resulting in or attributable to
personal injury, death, or damage or destruction to tangible or intangible property,
including use of. CONTRACTOR shall provide CITY with a Certificate of
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Insurance, or other proof of insurance evidencing CONTRACTOR'S compliance
with the requirements of this paragraph and file such proof of insurance with the
CITY at least ten (10) days prior to the date Contractor begins performance of it's
obligations under this Agreement. In the event the insurance minimums are
changed, CONTRACTOR shall immediately submit proof of compliance with the
changed limits. Evidence of all insurance shall be submitted to the City Purchasing
Agent with a copy to Meridian City Accounting, 33 East Broadway Avenue,
Meridian, Idaho 83642.
6.2 Any deductibles, self-insured retention, or named insureds must be declared
in writing and approved by the City. At the option of the City, either: the insurer
shall reduce or eliminate such deductibles, self-insured retentions or named
insureds; or the Contractor shall provide a bond, cash or letter of credit
guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
6.3 To the extent of the indemnity in this contract, Contractor's Insurance
coverage shall be primary insurance regarding the City's elected officers, officials,
employees and volunteers. Any insurance or self-insurance maintained by the City
or the City's elected officers, officials, employees and volunteers shall be excess of
the Contractor's insurance and shall not contribute with Contractor's insurance
except as to the extent of City's negligence.
6.4 The Contractor's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
6.5 All insurance coverages for subcontractors shall be subject to all of the
insurance and indemnity requirements stated herein.
6.6 The limits of insurance described herein shall not limit the liability of the
Contractor and Contractor's agents, representatives, employees or subcontractors.
7. Bonds: Payment and Performance Bonds are required on all Public Works
Improvement Projects per the ISPWC and the City of Meridian Supplemental
Specifications & Drawings to the ISPWC, which by this reference are made a part
hereof.
8. Warranty: All construction and equipment provided under this agreement shall be
warranted for 2 years from the date of the City of Meridian acceptance per the
ISPWC and the Meridian Supplemental Specifications & Drawings to the ISPWC
and any modifications, which by this reference are made a part hereof.
All items found to be defective during a warranty inspection and subsequently
corrected will require an additional two (2) year warranty from the date of City's
acceptance of the corrected work.
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9. Notices: Any and all notices required to be given by either of the parties hereto,
unless otherwise stated in this agreement, shall be in writing and be deemed
communicated when mailed in the United States mail, certified, return receipt
requested, addressed as follows:
CITY CONTRACTOR
City of Meridian Haemker Construction, Inc
Purchasing Manager Attn: Linda Haemker
33 E Broadway Ave 2414 E. Railroad St
Meridian, ID 83642 Nampa, ID 83687
208-888-4433 Phone: 208-467-7480
Email: linda@haemkerconstruction.com
Idaho Public Works License #C -13663-B-3-4
Either party may change their address for the purpose of this paragraph by giving
written notice of such change to the other in the manner herein provided.
10. Attorney Fees: Should any litigation be commenced between the parties hereto
concerning this Agreement, the prevailing party shall be entitled, in addition to any
other relief as may be granted, to court costs and reasonable attorneys' fees as
determined by a Court of competent jurisdiction. This provision shall be deemed to
be a separate contract between the parties and shall survive any default,
termination or forfeiture of this Agreement.
11. Time is of the Essence: The parties hereto acknowledge and agree that time is
strictly of the essence with respect to each and every term, condition and provision
hereof, and that the failure to timely perform any of the obligations hereunder shall
constitute a breach of, and a default under, this Agreement by the party so failing to
perform.
12. Assignment: It is expressly agreed and understood by the parties hereto, that
CONTRACTOR shall not have the right to assign, transfer, hypothecate or sell any
of its rights under this Agreement except upon the prior express written consent of
CITY.
13. Discrimination Prohibited: In performing the Work required herein,
CONTRACTOR shall not unlawfully discriminate in violation of any federal, state or
local law, rule or regulation against any person on the basis of race, color, religion,
sex, national origin or ancestry, age or disability.
14. Reports and Information:
14.1 At such times and in such forms as the CITY may require, there shall be
furnished to the CITY such statements, records, reports, data and information as
the CITY may request pertaining to matters covered by this Agreement.
14.2 Contractor shall maintain all writings, documents and records prepared or
compiled in connection with the performance of this Agreement for a minimum of
four (4) years from the termination or completion of this or Agreement. This
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includes any handwriting, typewriting, printing, photo static, photographic and every
other means of recording upon any tangible thing, any form of communication or
representation including letters, words, pictures, sounds or symbols or any
combination thereof.
15. Audits and Inspections: At any time during normal business hours and as often
as the CITY may deem necessary, there shall be made available to the CITY for
examination all of CONTRACTOR'S records with respect to all matters covered by
this Agreement. CONTRACTOR shall permit the CITY to audit, examine, and make
excerpts or transcripts from such records, and to make audits of all contracts,
invoices, materials, payrolls, records of personnel, conditions of employment and
other data relating to all matters covered by this Agreement.
16. Publication, Reproduction and Use of Material: No material produced in whole
or in part under this Agreement shall be subject to copyright in the United States or
in any other country. The CITY shall have unrestricted authority to publish, disclose
and otherwise use, in whole or in part, any reports, data or other materials prepared
under this Agreement.
17. Compliance with Laws: In performing the scope of work required hereunder,
CONTRACTOR shall comply with all applicable laws, ordinances, and codes of
Federal, State, and local governments.
18. Changes: The CITY may, from time to time, request changes in the Scope of Work
to be performed hereunder. Such changes, including any increase or decrease in
the amount of CONTRACTOR'S compensation, which are mutually agreed upon by
and between the CITY and CONTRACTOR, shall be incorporated in written
amendments which shall be executed with the same formalities as this Agreement.
19. Construction and Severability: If any part of this Agreement is held to be invalid or
unenforceable, such holding will not affect the validity or enforceability of any other
part of this Agreement so long as the remainder of the Agreement is reasonably
capable of completion.
20. Waiver of Default: Waiver of default by either parry to this Agreement shall not be
deemed to be waiver of any subsequent default. Waiver or breach of any provision
of this Agreement shall not be deemed to be a waiver of any other or subsequent
breach, and shall not be construed to be a modification of the terms of this
Agreement unless this Agreement is modified as provided above.
21. Advice of Attorney: Each party warrants and represents that in executing this
Agreement. It has received independent legal advice from its attorney's or the
opportunity to seek such advice.
22. Entire Agreement: This Agreement contains the entire agreement of the parties
and supersedes any and all other agreements or understandings, oral of written,
whether previous to the execution hereof or contemporaneous herewith.
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23. Order of Precedence: The order or precedence shall be the contract agreement,
the Invitation for Bid document, then the winning bidders submitted bid document.
24. Public Records Act: Pursuant to Idaho Code Section 9-335, et seq., information or
documents received from the Contractor may be open to public inspection and copying
unless exempt from disclosure. The Contractor shall clearly designate individual
documents as "exempt" on each page of such documents and shall indicate the basis for
such exemption. The CITY will not accept the marking of an entire document as exempt.
In addition, the CITY will not accept a legend or statement on one (1) page that all, or
substantially all, of the document is exempt from disclosure. The Contractor shall
indemnify and defend the CITY against all liability, claims, damages, losses, expenses,
actions, attorney fees and suits whatsoever for honoring such a designation or for the
Contractor's failure to designate individual documents as exempt. The Contractor's
failure to designate as exempt any document or portion of a document that is released
by the CITY shall constitute a complete waiver of any and all claims for damages caused
by any such release.
25. Applicable Law: This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Idaho, and the ordinances of the City of
Meridian.
26. CDBG GRANT REQUIREMENTS: This project is being funded by a Community
Development Block Grant. The Davis -Bacon Act applies to this project and it is the
responsibility of the Contractor to comply in all aspects of the law. This contract, will be
subject to HUD -4010 Federal Labor Standards Provisions attached hereto as
"Attachment C" and made a part hereof. Paragraph 2 on page 2 of 5 of HUD -4010
states that the City may withhold payment to Contractor for failure to pay wages when
due. Davis -Bacon requires wages to be paid not less often than once a week. All
subcontractors and any lower tier subcontractors are subject to the same Davis -Bacon
Wage requirements as the general contractor.
27. Approval Required: This Agreement shall not become effective or binding until
approved by the City of Meridian.
CITY OF MERIDIAN HAEMKER CONSTRUCTION, INC
BY:
KEI A , Purchasing Manager
Dated: S(Z
8TH STREET PARK PICNIC SHELTER INSTALLATION
Project 6003.53
BY;.c�� s _
LINDA HAEMKER, Vice President
Dated: 00/ /"nz
Depaent proval
BY: /�
Jay Gib s, Parks Project Manager
Dated::
page 8 of 14
Attachment A
SCOPE OF WORK
REFER TO INVITATION TO BID PKS-14-6003.53
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Invitation to Bid Package # PKS-14-6003.53, are by this reference
made a part hereof.
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Attachment B
MILESTONE / PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$21,246.51.
MILESTONE DATES/SCHEDULE
Milestone 1
Final Completion
30 days from NTP
PRICING SCHEDULE
Contract includes furnishing all labor, materials, equipment, and incidentals as required for the
8TH STREET PARK PICNIC SHELTER INSTALLATION per IFB PKS-14-6003.53
Total Bid Schedule 1 ...................$21,246.51
CONTRACT TOTAL ....................... 21 246.51
CONTRACT IS A NOT TO EXCEED AMOUNT. LINE ITEM PRICING BELOW WILL BE USED FOR INVOICE
VERIFICATION AND ANY ADDITIONAL INCREASES OR DECREASES IN WORK REQUESTED BY CITY.
Bid Schedule
Item
No.
Description
Qnty
Unit
Unit Price
Provide all labor, and equipment to erect picnic shelter
1
per sealed drawings and calculations provided by
1
LS
$7,527
Superior Recreational Products (includes concrete
footings) and sheet 1-1.1
2
Provide all labor, materials and equipment to install
250
SF
$1,750
concrete sidewalk per detail 1, sheet 1-1.2
3
Provide all labor, materials and equipment to install
900
SF
$5,400
concrete pad per sheet 1-1.1
Provide all labor, materials and equipment to install 1"
4
electrical conduit from shelter footing to restroom building
62
LF
$800
stub -out
5
Provide all labor, materials and equipment to install new
810
SF
$2,430
sod
6
Provide all labor, materials and equipment for erosion
1
LS
$500
sediment control plan
7
State of Idaho Use Tax (6% of $18,849.24)
1
LS
$1,130.95
8
Provide all bonds
1
LS
$708.56
Travel expenses, if applicable, will be paid at no more than the City of Meridian's
Travel and Expense Reimbursement Policy.
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Attachment C
HUD — 4010
Federal Labor Standards Provisions U.S. Department of Housing and Urban Development
Office of Labor Relations Previous editions are obsolete form HUD -4010 (06/2009) ref. Handbook 1344.1
Applicability The Project or Program to which the construction work covered by this contract pertains is being assisted by the United
States of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable
to such Federal assistance.
A.1. (1) Minimum Wages. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and
not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are
permitted by regulations Issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and
bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the
wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs
reasonably anticipated for bona fide fringe benefits under Section I(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics
are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular
contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or
programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the
classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics
performing work in more than one classification may be compensated at the rate specified for each classification for the time actually
worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work
is performed. The wage determination (Including any additional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii)
and the Davis -Bacon poster (WH -1 321) shall be posted at all times by the contractor and its subcontractors at the site of the work in
a prominent and accessible, place where it can be easily seen by the workers.
(il) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the
contract shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage
rate and fringe benefits therefor only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in
the wage determination.
(b) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD
or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a
report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative,
will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee
or will notify HUD or its designee within the 30 -day period that additional time is necessary. (Approved by the Office of Management
and Budget under OMB control number 1215-0140.)
(c) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and HUD or Its
designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where
appropriate), HUD or its designee shall refer the questions, including the views of all Interested parties and the recommendation of
HUD or its designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a
determination within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30 -day period
that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.)
(d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii)(b) or (c) of this
paragraph, shall be paid to all workers performing work In the classification under this contract from the first day on which work is
performed in the classification.
(III) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which
is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another
bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of
any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or
program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of
the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for
the meeting of obligations under the plan or program. (Approved by the Office of Management and Budget under OMB Control
Number 1215-0140.)
2. Withholding. HUD or its designee shall upon its own action or upon written request of an authorized representative of the
Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the
same prime contractor, or any other Federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held
by the same prime contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees and helpers, employed by the contractor or any subcontractor the full amount of wages
required by the contract In the event of failure to pay any laborer or mechanic, Including any apprentice, trainee or helper, employed
or working on the site of the work, all or part of the wages required by the contract, HUD or Its designee may, after written notice to
8TH STREET PARK PICNIC SHELTER INSTALLATION page 11 of 14
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the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment,
advance, or guarantee of funds until such violations have ceased. HUD or its designee may, after written notice to the contractor,
disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are
due. The Comptroller General shall make such disbursements in the case of direct Davis-Bacon Act contracts.
3. (i) Payrolls and basic records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course
of the work preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such
records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly
rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of
the types described in Section I(b)(2)(B) of the Davis-bacon Act), daily and weekly number of hours worked, deductions made and
actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section
I(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is
enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the
laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of
apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and
wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers
1215-0140 and 1215-0017.)
(If) (a) The contractor shall submit weekly for each week In which any contract work is performed a copy of all payrolls to HUD or its
designee if the agency is a party to the contract, but if the agency is not such a parry, the contractor will submit the payrolls to the
applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out
accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i) except that full social security
numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an
individually Identifying number for each employee (e.g., the last four digits of the employee's social security number). The required
weekly payroll information may be submitted In any form desired. Optional Form WH-347 is available for this purpose from the Wage
and Hour Division Web site at httpY www.dol.gov/esaAvhd/forma4vh347instr.htm or its successor site. The prime contractor is
responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full
social security number and current address of each covered worker, and shall provide them upon request to HUD or its designee if
the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant
sponsor, or owner, as the case may be, for transmission to HUD or its designee, the contractor, or the Wage and Hour Division of the
Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of
this subparagraph for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime
contractor for its own records, without weekly submission to HUD or its designee. (Approved by the Office of Management and
Budget under OMB Control Number 1215-0149.)
(b) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or
her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the Information required to be provided under 29 CFR 5.5 (a) (3)(0), the appropriate
information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete;(2) That each laborer or
mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full
weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly
from the full wages earned, other than permissible deductions as set forth In 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for
the classification of work performed, as specified in the applicable wage determination incorporated into the contract.
(c) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the
requirement for submission of the "Statement of Compliance" required by subparagraph A.3.(ii)(b).
(d) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under
Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(III) The contractor or subcontractor shall make the records required under subparagraph A.3.(i) available for inspection, copying, or
transcription by authorized representatives of HUD or Its designee or the Department of Labor, and shall permit such representatives
to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to
make them available, HUD or its designee may, after written notice to the contractor, sponsor, applicant or owner, take such action as
may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit
the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and Trainees.
(f) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State
Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as
an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the
Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible
for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft
classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program.
Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid
not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than
the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction
on a project In a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the
journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice
must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a
percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in
accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the
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Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in
accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be
permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is
approved.
(il) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the
work performed unless they are employed pursuant ',to and individually registered in a program which has received prior approval,
evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to
journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of
progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be
paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits,
trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and
Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the
wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee
rate who is not registered and participating In a training plan approved by the Employment and Training Administration shall be paid
not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any trainee performing
work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate
on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws
approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined
rate for the work performed until an acceptable program is approved.
(III) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under 29 CFR Part 5 shall be in
conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.
5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR Part 3 which are
incorporated by reference in this contract
6. Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs 1 through
11 in this paragraph A and such other clauses as HUD or its designee may by appropriate instructions require, and a copy of the
applicable prevailing wage decision, and also a clause requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all
the contract clauses in this paragraph.
7. Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract
and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
S. Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis -Bacon and Related
Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract
9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject
to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department
of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or
any of its subcontractors) and HUD or its designee, the U.S. Department of Labor, or the employees or their representatives.
10. (i) Certification of Eligibility. By entering Into this contract the contractor certifies that neither it (nor he or she) nor any person or
firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of Section
3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24
CFR Part 24.
(li) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of
Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant
to 24 CFR Part 24.
(Iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal
Code, Section 1 01 0, Tide 18, U.S.C., "Federal Housing Administration transactions", provides in part: "Whoever, for the purpose of .
.. influencing in any way the action of such Administration..... makes, utters or publishes any statement knowing the same to be
false..... shall be fined not more than $5,000 or imprisoned not more than two years, or both."
11. Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor
standards provisions of this Contract are applicable shall be discharged or in any other manner discriminated against by the
Contractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any
proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this
Contract to his employer.
B. Contract Work Hours and Safety Standards Act. The provisions of this paragraph B are applicable where the amount of the
prime contract exceeds $100,000. As used in this paragraph, the terms "laborers" and "mechanics" include watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve
the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which the
individual is employed on such work to work in excess of 40 hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such
workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subparagraph
(1) of this paragraph, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such
contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia
or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to
each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph
(1) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of
the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph (1) of
this paragraph. Withholding for unpaid wages and liquidated damages. HUD or its designee shall upon its own action or upon
written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys
payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with
the same prime contract, or any other Federally -assisted contract subject to the Contract Work Hours and Safety Standards Act
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Project 6003.53
which is held by the same prime contractor such sums as may be determined to be necessary to satisfy any liabilities of such
contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this
paragraph.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph (1) through
(4) of this paragraph and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The
prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in
subparagraphs (1) through (4) of this paragraph.
C. Health and Safety. The provisions of this paragraph C are applicable where the amount of the prime contract exceeds $100,000.
(1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or
dangerous to his health and safety as determined under construction safety and health standards promulgated by the Secretary of
Labor by regulation.
(2) The Contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 and failure to
comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, (Public Law 91-54, 83
Stat 96). 40 USC 3701 et seq.
(3) The contractor shall include the provisions of this paragraph in every subcontract so that such provisions will be binding on each
subcontractor. The contractor shall take such action with respect to any subcontractor as the Secretary of Housing and Urban
Development or the Secretary of Labor shall direct as a means of enforcing such provisions.
Previous editions are obsolete. Form HUD -4010 (06-2009) ref. Handbook 1344.1
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