Independent Contractor Agreement with Haemker Construction for Neos Play Equipment and associated Concrete Flatwork at Centennial ParkAGREEMENT
FOR
INDEPENDENT CONTRACTOR SERVICES
NEOS Play Equipment Installation and Concrete Flatwork
THIS AGREEMENT FOR PROFESSIONAL SERVICES is made this
17th day of Ma_, 2010, 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 _622 S Powerline Rd, 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 Installation of
NEOS Play Equipment and associated Concrete Flatwork at Centennial Park; 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
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
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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, 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 provide 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
$5,879.00.
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 no 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,
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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)
September 30, 2010 or (c) unless sooner terminated as provided below or
unless some other method or time of termination is listed in Attachment A.
This Agreement shall terminate automatically on the occurrence of (a)
bankruptcy or insolvency of either party, or (b) sale of Contractors
business.
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 par 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 until
June 5, 2010 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 $300.00 (three hundred 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
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4. Termination:
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.
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.
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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:
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 tortuous 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
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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.
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.
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.
6.4 All insurance coverages for subcontractors shall be subject to all of
the insurance and indemnity requirements stated herein.
6.5 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 Publics
Works of 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
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Project # 6003.10106.b
Haemker Construction
Attn: Jim Hamker
622 S Powerline Rd
Nampa, ID 83686 _
20$ 467-7480
Idaho Public Works License #: C-13663-8-3-4
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.
9. 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.
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.
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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.
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.
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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.
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 MERIDI =
BY:
KE AT , PURCHASING MANAGER
Dated: 5— '--1 —16
Approved as to Form
CITY ATTORNEY
YHAE ER CONSTRUCTION
Y: JIM HAEMKER
Dated:diel.;L-vo
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Project # 6003.10106.b
Department AfrproZ
BY:
NAME: �Alk' k'[�► J
TITLE:"`'
Dated: Z> - Zq" f v
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Project # 6003.10106.b
Attachment A
SCOPE OF WORK
The installation of Neos play equipment and concrete flatwork. Refer to Invitation for bid
PKS-10-10606.b. All addendums, attachments, maps and exhibits included in the
Invitation to Bid Package # PKS-10-10106.b, are by this reference made a part hereof.
Project overview — The following project is for installation of a Neos 360 manufactured
by Playworld Systems and concrete flatwork per plans dated 4-28-10 (see attached
plans). The Neos 360 play equipment will be provided by The City of Meridian Parks
and Recreation. This project is funded through a grant received by H.U.D. Community
Development Block Grant program. Contractor shall pay prevailing wage as defined
under the category "building construction" as it applies to work in ADA County.
Contractor shall conform to all H.U.D. guidelines concerning but not limited to wages,
reporting and safety as defined by H.U.D (see attached HUD guidelines).
General specifications —
• Excavate affected area to a depth of 8" below grade and install 4" of road
base, compact road base to a minimum compaction of 95%.
• Contractor shall remove from site excavated soil.
• Provide and install a 1 "conduit at a depth of 18" from the location of the
interface panel up into the irrigation enclosure on the south side of the site.
Install a 1" conduit at a depth of 18" below the concrete slab from the
interface panel to post locations 1 and 8.
• Contractor shall form, provide and finish concrete flatwork per plans, concrete
shall be 4,000 psi concrete poured at a 4" depth.
• Contractor shall pick up Neos system from the parks maintenance facility and
transport to the site.
• Install Neos play equipment per manufacturers instructions provided (See
attached instructions).
• Irrigation repairs and modification is not part of this contract.
• Wiring the interface panel to the irrigation controller is not part of this contract
(complete all other wiring per manufacturers instructions).
• Contractor shall at their own expense protect work in progress from damage
due to acts of vandalism or inclement weather.
• Contractor shall completely restore areas affected by excavation and conduit
trenching.
• Contractor shall pay the use tax to the State of Idaho on $17,329.00, provide
documentation prior to project closeout.
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Attachment B
MILESTONE 1 PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed
$5,879.00.
PRICING INCLUDES ALL LABOR, MATERIALS, EQUIPMENT, AND INCIDENTALS
AS REQUIRED FOR NEOS PLAY EQUIPMENT INSTALLATION AND CONCRETE
FLATWORK , PER THE SCOPE (ATTACHMENT A), SPECIFICATIONS AND PLANS
DATED 5-7-2010
TASK
DESCRIPTION
DATE
AMOUNT
A.
Install NEOS Play Equipment and associated concrete
flatwork per BID No. PKS-1 0-101 06.b
$5,879.00
TOTAL
$ 59879.00
Travel expenses will be paid at no more than the City of Meridian's Travel and
Expense Reimbursement Policy.
This project is funded through a grant received by HUD Community Development
Block Grant Program. Contractor shall pay prevailing wage as defined under the
category "building construction" as it applies to work in Ada County.
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ATTACHMENT C
HUD FORM 1040
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Federal Labor Standards Provisions
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 1(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 -
1321) 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.
(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:
U.S. Department of Housing
and Urban Development
Office of Labor Relations
(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
form HUD -4010 (0612009)
Previous editions are obsolete Page 1 of 5 ref. Handbook 1344.1
(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.
(i) 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 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.
(ti) 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
Previous editions are obsolete form HUD -4010 (0612009)
Page 3 of 5 ref. Handbook 1344.1
(3) 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 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 taborer 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 M.
(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 (0612009)
Page 5 of 5 ref. Handbook 1344.1