Independent Contractor Services Agreement with Alloway Electric for NW 8th Street Pedestrian LightingAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
NW 8T" STREET PEDESTRIAN LIGHTING
PROJECT # 6003-10248A
THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made
this 15T14 day of August , 2011, 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 Alloway
Electric, hereinafter referred to as "CONTRACTOR", whose business address is 502 E
4 �h St., Boise, ID 83714 and whose Public Works Contractor License # is C -12494-A-4.
INTRODUCTION
Whereas, the City has a need for services involving NW 8th Street
Pedestrian Lighting; 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.
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1.3 The Contractor shall provide services and work under this Agreement
consistent with the requirements and standards established by applicable
federal, 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 Lump Sum basis as
provided in Attachment B "Payment Schedule" attached hereto and by
reference made a part hereof for the Not -To -Exceed amount of
$29,010.94.
2.2 The Contractor shall provide the City with a monthly statement, 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 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.
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3. `Germ:
3.1 This agreement shall become effective upon execution by both
parties, and shall expire upon (a) completion of the agreed upon work, (b)
unless sooner terminated as provided below or unless some other method or
time of termination is listed in Attachment A.
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 This Agreement shall terminate automatically on the occurrence of
any of the following events:
a. Bankruptcy of insolvency of either party;
b. Sale of Contractor's business; or
C. Death of Contractor
3.5 TIME FOR EXECUTING CONTRACT AND LIQUIDATED
DAMAGES
Upon receipt of a Notice to Proceed, the Contractor shall have 60
(sixty) 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 five hundred dollars ($500.00) 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
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termination. CONTRACTOR may terminate this agreement at any time by
giving at least sixty (60) days notice to CITY.
4.2 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.
4.3 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:
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.
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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 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.
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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.
8. 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 of Meridian
Purchasing Manager
33 E. Broadway Avenue
Meridian, Idaho 83642
Alloway Electric
Attn: Michael L Johnson
502 E 45 Street
Boise, ID 83714
208-344-2508
Idaho Public Works License #: C -12494-A-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.
9. Attorney Fees: Should any litigation be commenced between the parties
hereto concerning this Agreement, the prevailing party shall be entitled, in
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Project # 6003-10248a
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.
10. 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.
11. 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.
12. 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.
13. Reports and Information:
13.1 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.
13.2 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 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.
14. 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.
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15. 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.
16. 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.
17. 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.
18. 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.
19. Waiver of Default: Waiver of default by either party 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.
20. 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.
21. 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.
22. Order of Precedence: The order or precedence shall be the contract
agreement, the invitation for Bid document, then the winning bidders
submitted bid document.
23. 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.
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24. Approval Required: This Agreement shall not become effective or binding
until approved by the City of Meridian.
25. CDGB 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.
CITY OF MERIDIAN
BY: "�Y/
eith Watts, Purchasing Manager
Dated: 8,/5/J
Department Approval
BY:
NAME:
TITLE: ,'� C
a�
Dated:
NW 81h Street Pedestrian Lighting Project
Project # 6003-10248a
ALLOWAY ELECTRIC
Ae,,VJe,0Vt-
BY: Michael ohnson
Dated: // AyAvaf" 020%
Approved as to Form
CITY ATTORNEY
page 9 of 16
Attachment A
SCOPE OF WORK
REFER TO INVITATION TO BID PW -1 1-6003-10248a
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Invitation to Bid Package # PW -11-6003-10248a are by this reference
made a part hereof.
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Attachment B
MILESTONE 1 PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$29,016.94.
Travel expenses will be paid at no more than the City of Meridian's Travel and
Expense Reimbursement Policy.
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Project # 6003-10248a
PRICING SCHEDULE
Contract includes furnishing all labor, materials, equipment, and incidentals as required for the
NW 81h Street Pedestrian Lighting Project per
IFB PW -1 1-6003-10248a, including Add
Alternate Bid Items 1 A and 2A.
Base Bid ......... $22,701.55
Bid Alt. 1 A.........$4,417.39
Bid Alt. 2A.........$1,898.00
Total Bid Schedule ...................$29,016.94
CONTRACT TOTAL ....................... $29.01fi.94
ITEM PRICING BELOW WILL BE USED FOR CHANGE ORDER PRICING ONLY.
Item No.
Item Description
Unit
Unit Price
1.
Install 1" Conduit and Wire
LF
$10.32
2.
Install Type 1 Pole
EA
$1,330.33
3.
Modify Existing Pole
LS
$1,950.00
4.
Bore 1" Conduit and Wire
LF
$39.00
1a}
Install 1" Conduit & Wire
LF
$26.76
(Add Alternate)
2a*
Install Type 1 Pole
EA
$1,898.00
(Add Alternate)
Travel expenses will be paid at no more than the City of Meridian's Travel and
Expense Reimbursement Policy.
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Attachment C
HUD FORM 4010
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Federal Labor Standards Provisions U.S. Department of Housing and Urban Development
Office of Labor Relation Previous editions are obsolete form HUD -4010 (OW009) 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 Davls-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)(i)(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 -1321) shall be posted at all limes 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.
(ii) (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 tide 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.)
(e) 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-Baoon 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
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.
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Project # 6003-10248a
3. (1) 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)(N) 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.)
(11) (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 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 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 fuIt 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 httpYAvww.dol.gov/esa/whd/form&Wh347instr.hlm 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)(ii), the appropriate
information is being maintained under 29 GFR 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 Stales 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.
(1) 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
Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in
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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.
(li) 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 opportunfty. 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.
8. 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(x)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24
CFR Part 24.
(lf) 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.
(fif) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.G. 1001, Additionally, U.S. Criminal
Code, Section 1 01 0, Title 18, U.S.C., "Federal Housing Administration transactions", provides in part: "Whoever, for the purpose of .
.. influencing in anyway 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
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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
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 (a) 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) ret. Handbook 1344.1
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