Independent Contractor Agreement with Clima Tech Corporation for MPD Station Retro-CommissioningAGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES
MERIDIAN POLICE STATION RETRO-COMMISSIONING
PROJECT # 6007-10189
THIS AGREEMENT FOR INDEPENDENT CONTRACTOR SERVICES is made
this `~~ day of February, 2012, 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 Clima-
Tech Corporation ,hereinafter referred to as "CONTRACTOR",whose business
address is 875 W McGregor Ct. #180, Boise, ID 83705 and whose Public Works
Contractor License # is C-10307-AA-4.
INTRODUCTION
Whereas, the City has a need for services involving Meridian Police Station
Retro-Commissioning; 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 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
$120,000.00.
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 Citywill 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 Davis Bacon Act requirements of the EECBG Grant, weekly
certified payroll reports must 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
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Project No. 6007-10189
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)
August 15, 2012 or (c) 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 TIME FOR EXECUTING CONTRACT AND LIQUIDATED
DAMAGES
Upon receipt of a Notice to Proceed, the Contractor shall have until
August 15, 2012 to complete the work as described herein.
Contractor shall be liable to the City for 100% of the Contract value
for any delay beyond this date. 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.
3.5 WORK SCHEDULE:
hours of 6 a.m. - 4 p.m.,
authorization is received
parties.
All work must be completed between the
Monday -Thursday, unless prior
in writing and mutually agreed upon by both
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
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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.
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 riot 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: Contractor must warrant the project per the ISPWC and the City
of Meridian Supplemental Specifications & Drawings to the ISPWC, which
by this reference are made a part hereof.
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
City of Meridian
Purchasing Manager
33 E Broadway Ave
Meridian, ID 83642
208-888-4433
CONTRACTOR
Clima-Tech Corp.
Attn: Marcus Bonn
875 McGregor Ct., #180
Boise, ID 8370
Phone: 208-377-9755
Email: marcusb@clima-tech.com
Idaho Public Works License #
C-10307-AA-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.
Meridian Police Station Retro-commissioning Projecl
Project No. 6007-10189
page 6 of 16
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 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,
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Project No. 6007-10189
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 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.
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.
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
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Project No. 6007-10169
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. Approval Required: This Agreement shall not become effective or binding
until approved by the City of Meridian.
27. EECBG GRANT REQUIREMENTS: This project is being funded by an
Energy Efficiency and Conservation 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.
28. Background Checks: As part of the requirements of this contract and
before performing any work or being admitted to secure areas of the
Police Department, the contractor, subcontractors, and all employees
working on this project will be required to pass a criminal background
check.
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Project No. 6007-10189
CITY OF MERIDIAN
BY:
TAMMY de WEERD, MAYOR
Dated:
Approved by
Attest:
JAYCEE L. HOLMAN, CITY CLERK
Purchasing Approval
BY:
KEITH ATT , P casing Manager
Meridian Police Station Retro-commissioning Project
Project No. 6007-10189
CLIMA-TECH CORPORATION
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page 10 of 16
CITY OF MERIDIAN
TAMMY de W ~ D, MAYOR
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Approved by Council:
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Meridian Police Station Retro-commissioning Project
Project No. 6007-10189
rtm~nt Approval
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page 10 of 16
Attachment A
SCOPE OF WORK
REFER TO REQUEST FOR PROPOSAL TO RFP POL-12-6007-10189
ALL ADDENDUMS, ATTACHMENTS, AND EXHIBITS included in the
Request for Proposal Package # POL-12-6007-10189, are by this
reference made a part hereof.
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Project No. 6007-10189
Attachment B
MILESTONE /PAYMENT SCHEDULE
A. Total and complete compensation for this Agreement shall not exceed $120,000.00.
Contract includes furnishing all labor, materials, equipment, and incidentals as required for the
MERIDIAN POLICE STATION RETRO-COMMISSIONING per RFP-POL-1 2-6007-1 0 1 89
TASK DESCRIPTION AMOUNT
A• Project Initialization -Permits & Bonds $8,900.00
B• Project Initialization-Retro-CommissioningCoordination $6,000.00
C• HDR Retro-Commissioning Contract $7,000.00
D• Lighting Occupancy Sensor and Exterior Lighting Control -Sub Contract $11,600.00
E• Project Initialization -Initial Controls Construction Drawings $4,000.00
F• Control System Materials Delivered and Stored $23,000.00
G• Control System Installation $29,800.00
H• Control System Software Engineering $1,800.00
I• Control System Commissioning $7,100.00
~• Mechanical Systems Work (see notes below) $18,100.00
K• Project Close-Out Operation and Maintenance Manuals $2,700.00
TOTAL $120,000.00
Pricing includes all costs, including Travel and Expenses.
Monthly Billings will be based on percentage of each Milestone/rask completion.
Mechanical System Work Includes:
Rooftop Equipment Checkout
Economizer Repairs (up to 5 total)
Fire Damper Repairs (up to 5 total)
Adjust Branch Circuit Air Flow
Add Exhauster Ducting from Main Floor RR
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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Project No. 6007-10189
ATTACHMENT C
HUD - 4010
Federal Labor Standards Provisions U.S. Department of Housing and Urban Development
Ot1jCe Ot LabOr R01atI0nS Previous editions are obsolete farm 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 fol lowing Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable
to such Federal assistance.
A. 1, (i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and
not less often lhart once a week, and without subsequent deduction or rehate on any acccunt (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 lids fringe henefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the
wage determination o11he Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual
relationship which may he alleged to exist between the contractor and such laborers and mechanics. Conlribu}ions made or costs
reasonably anticipated for bona fide fringe benefits under Section I(b)(2) of the Davis-Bacon Acton 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 far mare than a weekly pedod (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
classilicaticn 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 partormed. The wage determination (including any additional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii)
and the Davis-Bacon poster (W H-1321) shall be pasted 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 [he 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 pedormed by the classification requested is not pedormed 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) II the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD
ar 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 Budge[ 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 [he 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.)
(tl) 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
pedormed 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) II the contractor does no[ make payments to a trustee or other third parson, 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 suh)ect to Davis-Bacon prevailing wage requirements, which is held
by the same prime contractor so much of the accmed 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 lull 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 maybe 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,
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Project No. 6007-10189
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 Ac[ 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 benelits or cash equivalents thereof of
the types described in Section I(b)(2)(B) of the Davis-bacon Acl), 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 [he 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 malntaln records which show that the commitment to provide such benelits 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 al the registration cl
apprenticeship programs and certification of trainee programs, the registration of the apprentices and Trainees, and the ratios and
wage rates prescrihed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers
1215-0140 and 1215-0017.)
(II) (a) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls [o HUD or its
designee it the agency is a party co 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 maybe, tor. transmission to HUD or its designee. The payrolls submitted shall set out
accurately and completely all 01 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 o1 the employee's socialsecurity number). The required
weekly payroll information maybe submitted in any form desired. Optional Form WH-347 is available far this purpose from the Wage
and Hour Division Web site at httpl/www.dot.gov/esa/whd/forms/wh347instr.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 it
the agency is a party to the contract, but it the agency is no[ such a party, the contractor will submit the payrolls to the applicant
sponsor, or owner, as the case may be, for Transmission [o HUD or its designee, the contractor, or [he Wage and Hour Division of the
Department of Labor for purposes of an investiga9on 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 pdme
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 [he payment o11he persons employed under the contract and shall certify the following:
(1) Tha[ 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 tieing 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 bean paid the full
weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or Indirectly
Irom [he full wages earned, other than permissible deductions as se[ forth in 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and Iringe 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 workinghours on the jab. If the contractor or subconlraclor fails to submit the required records or to
make them available, HUD or its designee may, after written notice }o 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. Funhermore, failure to submit
the required records upon request or to make such records available may be grounds far debarment action pursuant to 29 CFR 5.12.
4. Apprentices end Trainees.
(i) Apprentices. Apprentices will ba permitted to work at less than the predetermined rate for the work They pedormed when they are
employed pursuant to and individually registered in a bona tide apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Ollice 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 [o journeymen on [he 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 addi}ion, any
apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than
[he applicable wage rate on [he wage determination for the work actually pedormed. 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 a[ 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 benelits in
accordance with the provisions of the apprenticeship program. If [he apprenticeship program does no[ specify fringe henefits,
apprentices must be paid the full amount of fringe benelits 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 [he even[ the Office of Apprenticeship Training, Employer and Lobar Services, or a State
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Project No. 6007-10189
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.
(if) 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',[o 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 [he 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 rata 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 no[ mention fringe benefits,
trainees shall be paid the full amount of fdnge benelils listed on the wage determination unless the Administrator of [he Wage and
Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage race on the
wage determination which provides for less than full fringe benefits far 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 pedormed. 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 pedormed. In the event the Employment and Training Administration withdraws
approval of a training program, the contractor will no longer be permitted to utilize trainees a[ less than the applicable predetermined
rate for the work performed until an acceptable program Is approved.
(ifl) 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 wish 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
t t 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 con4actor and a subcontractor as provided in 29 CFR 5.12.
lt. Compliance with Davis-Bacon and Related Ac[ 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 adsing 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 wntractor (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 [o be awarded HUD contracts or participate in HUD programs pursuant to 24
CFR Part 24.
(ii) No part of This contract shall 6e subcontracted [o any person or firm ineligible for award of a Government contract by virtue of
Section 3(a) of the Davis-Bacon Actor 29 CFR 5.12(a)(1) or tc be awarded HUD conlmcts or participate in HUD programs pursuant
ro 24 CFR Part 24.
(iii) The penally 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, Title 18, U.S.C., "Federal Housing Administration transactions", provides in part: "Whoever, far the purpose of .
..influencing in any way the action of such Administration..... makes, utters or publishes any statement knowing the same tc 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 he Instituted any
proceeding or has testified or is about to testily in any proceeding under or relating to the labor standards applicable under [his
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 conlrac[ 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 [o the United Slates (in the case of work done under contract for the District of Columbia
or a territory, to such District or ro 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 au[horizedrepresen[ative 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 conlrac[ or any other Federal contract with
the same prime contract, or any other Federally-assisted conlrac[ subject to [he Contract Work Hours and Safety Standards Act
which is held by the same prime contractor such sums as maybe determined to be necessary to satisfy any liabilities of such
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Project No. 6007-10169
contractor or subcontractor for unpaid wages and liquids}ed 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 fler 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 fo work In surroundings or under working conditions which are unsanitary, hazardous, or
dangerous [o his health and safely 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 tc 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
Stet 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) rel. Handhook 1344.1
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