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HomeMy WebLinkAbout11-13-2018 Item 14 Approval of a Community Workforce Agreement for the Water Resource Recovery Facility Project Meeting Date: 11/13/2018 FROM: Derek Johnson, City Manager J. Christine Dietrick, City Attorney Carrie Mattingly, Utilities Director Justin Pickard, Water Systems Consulting, Inc., WRRF Project Assistant Program Manager SUBJECT: APPROVAL OF A COMMUNITY WORKFORCE AGREEMENT (FORMERLY KNOWN AS PROJECT LABOR AGREEMENT) FOR THE WATER RESOURCE RECOVERY FACILITY PROJECT RECOMMENDATION Authorize the City Manager to enter into a Community Workforce Agreement (CWA) in a final form approved by the City Attorney (substantially in the form provided as Attachment A) with The Tri-Counties Building and Construction Trades Council, AFL-CIO and The Signatory Craft Councils and Unions for the Water Resource Recovery Facility Project (WRRF). DISCUSSION Report in Brief The purpose of this item is for Council to consider the tentative agreement negotiated between City and Trades Council negotiating teams and, if acceptable, authorize the City Manager to enter into a Community Workforce Agreement for the proposed Water Resource Recovery Facility, subject to final approval as to form by the City Attorney. The agreement outlines basic terms related to union activities, project labor procurement and referral protocols, work stoppage, wages and benefits, management rights, dispute resolution, covered employees, and other terms identified in Articles 1-20 of the CWA and the related attachments. The CWA was negotiated by negotiating teams representing the City and the Tri-Counties Building and Construction Trades Council, AFL-CIO and the Signatory Councils and Unions, following direction from the City Council on July 10, 2018. The fiscal impacts of a CWA on construction costs is not precisely quantifiable. Contradictory literature is readily and publicly available that asserts that CWAs both increase and decrease project costs. Existing public contracting laws and the terms of the City’s state funding require the City to monitor and report on certain labor compliance programs. Thus, this report outlines those estimated costs and additional incremental costs that staff believes can reasonably be anticipated to ensure compliance with the CWA. Those incremental costs for administering the technical requirements of the CWA are estimated to range from approximately $179,709 and $274,306. . Packet Pg. 403 Item 14 Background A Project Labor Agreement, or PLA, is a pre-hire collective bargaining agreement between a project owner and the construction trades. The agreement establishes the terms and conditions of employment for the covered project. It is also commonly known as a community workforce agreement, project stabilization agreement, or a community partnership agreement. For purposes of this report and consistent with the title of the proposed agreement, hereinafter the tentative agreement that is the subject of this report shall be referred to as a Community Workforce Agreement, or CWA. On July 10, 2018, City Council held a study session to gain understanding of the considerations associated with Project Labor Agreements on public works projects (See Attachment B for July 10 Council Agenda Report). During the study session, City Council discussed the potential benefits, risks, and costs of a Project Labor Agreement on the Water Resource Recovery Facility (WRRF) Project (see Table 1) and heard extensive public testimony. Table 1: Potential Risks, Costs & Benefits of Options Current City Contract Modified City Contract With Local Hire Preference CWA Benefits No schedule impact Local worker participation goals established No schedule impact Broad discretion for other workforce goals Local worker participation goals established and monitored and potential of increased local worker participation and training Provides authority for union contractors to prefer local workers, which otherwise would not be permitted Work stoppages prohibited Costs No additional cost Local hire program administration cost Potential for increased construction cost Contract language development cost Negotiation costs PLA administration costs Potential for increased construction cost Risks Potential for reduced local worker participation Potential for work stoppage Potential for work stoppage Potential for prolonged bid review & award Union contractors cannot prefer local workers absent a PLA, notwithstanding established goals Potential delay to Construction Management procurement Potential for reduced non-union local contractor participation Potential construction schedule delay Packet Pg. 404 Item 14 At the conclusion of deliberations, by consensus, the City Council provided the following direction to staff: 1. Proceed with the negotiation of a CWA for inclusion with the bid package for the WRRF, including local hiring preference components. a. CWA shall be negotiated by October 12, 2018 to incorporate the CWA agreement and requirements into the WRRF bid documents and return to the City Council for approval, maintaining the established project bidding schedule. b. If a CWA is not negotiated by October 12, 2018, proceed with incorporating enhanced local hire outreach requirements into WRRF bid documents and return to the City Council for approval. (A draft of those provisions is included with this report as Attachment C) c. Pursue contract provisions that do not adversely affect project quality or schedule and do not significantly increase costs. NEGOTIATIONS Preparation On July 11, 2018, the City Attorney commenced communications with Ray Van der Nat, the attorney for the Tri-Counties Building and Construction Trades Council (Trades Council), which represents 33 craft unions in San Luis Obispo, Santa Barbara, and Ventura Counties. The City Attorney also began the process to select and retain outside legal counsel to assist the City in its negotiations. After conducting interviews, Mike Vlaming of Vlaming Associates was selected and retained as the City’s CWA legal counsel/lead negotiator on July 18, 2018. Other negotiating team members were City Attorney Dietrick, Utilities Director Mattingly, and WRRF Project Assistant Program Manager Pickard, with the support and direction of the City Manager. The negotiating team worked to further define negotiation parameters and priorities and developed a negotiations plan to achieve tentative agreement no later than October 12, 2018. Key Provisions The negotiating team engaged with Trades Council representatives on August 10, 2018 in a half- day in-person negotiating session. The draft agreement proposed by the Trades Council was reviewed and City Council direction was discussed. City bargaining objectives, public input received related to the Council study session, and input conveyed to staff and the City Council by local contractors and contractors’ association representatives was shared. Following the initial in-person meeting, the City’s negotiating team developed the first in a series of four proposals and counter-proposals that were exchanged before reaching tentative agreement on the substantive terms and conditions of a CWA, on October 11, 2018. Packet Pg. 405 Item 14 Local Worker Participation. Pursuant to Council direction, the City’s primary objective in negotiating a CWA with the Trades Council was to agree on terms calculated to maximize employment opportunities on the WRRF Project for local residents and local contractors who employ local workers. Without a CWA, unions must follow their standard referral procedures, which typically require the unions to refer workers to projects based on the order in which they registered with the union out-of-work list (i.e., first come, first served), without consideration of local residency. Thus, absent a CWA, if the low bidder on the project is a union signatory contractor, that contractor and affiliated trades unions would have no legal ability to implement local hire preferences, notwithstanding any contractual enhanced outreach or local hire provisions the City might include in its bid documents. Contractors could enhance outreach efforts to encourage local workers to add their names to the relevant union out of work list from which signatory contractors are required to procure workers. However, the union would be required to make referrals based on which workers registered first and the contractors would be required to accept referrals from the union out-of-work list on a “first-in, first-out” basis, without regard to worker residence location. A CWA allows signatory unions to modify their normal worker referral procedures by giving preference to targeted work groups, including local residents, regardless of their position on the out-of-work list. In other words, under the terms of a CWA like the one recommended here, the union hall has the legal authority and commits to prioritize local workers for employment on the City’s project. Non-union shops are not normally required to procure labor from the out of work list and could implement means to directly recruit and prefer local workers to work on the project, but employment of such workers cannot be mandated absent a CWA. Non-union workers can be referred to the WRRF Project by registering with the union hiring hall and by paying the applicable representation fees during the course of their employment on the project. Representation or “window fees” may or may not differ from union membership dues, depending on trade and the requirements of each local. However, it is important to note that non-union workers are not required actually to join a union to be eligible for employment on the WRRF Project, they are not precluded from working for non-union contractors or on other non- union projects, and discrimination in referral or hiring of workers on any public works project based on union membership is legally prohibited. In other words, under a CWA, the union hall serves as the point of contact and conduit for labor procurement through which all workers are referred to the covered project, but workers do not have to become union members. In recognition of the Council direction, the initial draft CWA proposed by the Trades Council included provisions for preferential hiring of local workers, which is not traditionally a standard provision. In the final tentative agreement, a goal of 30% of the total construction labor hours worked on the WRRF Project has been established for local workers. A tiered system will be utilized for the referral of local workers, with preference given to City of San Luis Obispo residents first (Tier 1), San Luis Obispo County residents second (Tier 2), Santa Barbara and Monterey Counties residents third (Tier 3), and Ventura County residents fourth (Tier 4). Unions cannot refer workers in lower tiers to the WRRF Project until their best efforts have been made to fulfill the 30% local worker goal from the highest tier (i.e., Tier 1). In the event the 30% local worker goal has been met, unions will continue to refer workers to the WRRF Project using the Packet Pg. 406 Item 14 tiered system to further increase participation on the project by local residents. At the request of the Trades Council, the City’s negotiating team ultimately agreed to recommend expanding the definition of local workers beyond the focus areas initially identified by the Council to include Ventura County residents. Staff felt this was a reasonable concession to advance negotiations on higher priority issues discussed below. The Trades Council represents craft unions in Ventura County along with those located in San Luis Obispo and Santa Barbara Counties, and inclusion of Ventura County aligns the CWA tiers with the Trades Council’s regional representation area, which was necessary to obtain approval of the CWA from the Trades Council’s affiliates. The local worker hiring preference will be administered on the City’s behalf by the Community Workforce Coordinator in cooperation with the unions, WRRF Project contractors, and subcontractors. Contractors and subcontractors will be required to prepare and submit manpower utilization plans detailing the schedule for the hiring of local residents to meet the local worker participation goal. The Community Workforce Coordinator will coordinate with the unions to determine the number of local residents available to meet the needs of the contractor and subcontractors based on the manpower utilization plans. Local worker participation will be monitored and reported on a monthly basis by compiling data from the certified payroll reports prepared by the contractor and subcontractors. The Community Workforce Coordinator will actively work with the contractor, subcontractors, and unions to meet the local worker participation goal. Core Employees. Utilization of core employees by non-union and local area contractors was a key focus of negotiations with the Trades Council. The CWA designates the trade unions as the exclusive source of craft labor on the WRRF Project and union referral systems must be used exclusively by the general contractor and subcontractors of all tiers to obtain craft labor. The draft CWA initially proposed by the Trades Council did not include provisions allowing non- union contractors to employ their key personnel, or “core employees”, on the WRRF Project without utilizing the union referral system. The proposed CWA provides for specific exclusions that are narrowly focused on maintaining core workers for construction management, inspection, and materials testing. Procurement of a construction manager was underway and authorized by Council prior to direction received on July 10, 2018, and the selected construction management team includes a local subconsultant, thus also furthering the goal of advancing the local hiring objective. This issue is discussed extensively in the next sections of this report. Local Area Contractors As detailed in the July 10, 2018 Council Agenda Report, the negotiating team recognized the absence of core worker provisions could disproportionately impact specialty subcontractors with a small workforce, who generally rely more heavily on their core employees to effectively perform their subcontracted scope of work, as compared to larger contractors. Specialty subcontractors (e.g., roofers, glaziers, tile installers, sheet metal workers, landscapers, etc.) have a smaller role relative to the overall scope of the WRRF Project, provide fewer employees and less craft hours, and are more likely to be local contractors. Staff received input from local area contractors and non-union contractor representatives that the inability of a local, non-union contractor to utilize its core workforce could present a barrier to local contractor, and therefore Packet Pg. 407 Item 14 local employee, participation on the WRRF Project. To address this concern and minimize barriers to local contractor participation, the negotiating team proposed terms allowing local area contractors – companies whose principal place of business has been located within the City or County of San Luis Obispo for at least one year – the ability to directly employ three of their core workers before being required to use the union referral system. After employing three initial core workers, local area contractors can continue employing core workers on a one-to-one ratio with union referrals until a maximum of seven core workers have been employed. After seven core workers have been employed, any additional employees must be obtained through the standard union referral system. Staff believes this provision will increase the ability of local, non-union contractors to participate in the WRRF Project by utilizing their core workforce and will increase employment opportunities for local residents. Non-Union Contractors In addition to local area contractors, the absence of core worker provisions impacts the ability of non-union contractors to participate in the WRRF Project. Non-union contractors generally rely on their core workforce in key oversight positions, typically as forepersons, just as union contractors rely on their key personnel to effectively deliver complex construction projects. The inability of non-union contractors to utilize their key workforce could present significant risk associated with labor uncertainty, and staff received input that such barriers could deter non- union contractors from participating on the WRRF Project, which could minimize competition in the bidding pool and adversely impact project costs. Staff also negotiated a provision allowing non-union contractors the ability to employ up to five core workers on the WRRF Project. Core workers can be employed on a one-to-one ratio with union referrals, with the first employee being a core worker, the second employee a union referral, and the third employee a core worker. This alternating process continues until a maximum of five core employees is reached. Staff received input that such provisions increase the likelihood of non-union contractors participating in the WRRF Project by being able to utilize at least a portion of their familiar core workforce, regardless of the location of their principal place of business. Construction Inspection. Quality assurance of the WRRF Project improvements is an essential function performed by the City’s construction manager and its inspection staff to ensure the facility is constructed in accordance with the contract documents. Construction inspectors, field soils testers, and other personnel performing quality assurance and quality control functions are covered crafts under a CWA, subject to the core worker limitations and union referral procedures set forth in the agreement. The draft CWA initially proposed by the Trades Council included broadly written language including construction inspectors, field soils testers, materials testers, and anyone performing quality control or quality assurance work as covered crafts under the CWA. Exemption of the construction manager, its inspection staff, and its field soils and materials testing subconsultant was one of the key negotiating objectives identified by the City Council, as procurement of a construction manager for the WRRF Project was underway when City Council Packet Pg. 408 Item 14 directed staff to initiate CWA negotiations. The City’s request for proposals for construction management services did not reference the potential inclusion of a CWA in the professional services agreement, and the addition of a CWA during the procurement process would have delayed the selection process and significantly impacted the WRRF Project schedule. In addition, the firm ultimately selected by the City to provide construction management services for the WRRF Project included a local, non-union subconsultant to provide specialty inspection and materials testing services who was unwilling to agree to the terms and conditions of a CWA. Thus, inclusion of that subconsultant under the agreement risked losing participation of a local firm and its local employees and compromising the efficient delivery and quality of the professional services to the project. After significant and lengthy negotiation, the parties reached tentative agreement on the recommended provisions that exempt the services under contract with the City’s previously retained construction manager as part of a packaged proposal that includes a concession of an equivalent benefits provision initially proposed by the City’s negotiating team and detailed in a subsequent section of this report. Apprentices. The draft CWA initially proposed by the Trades Council included provisions designating union-sponsored apprenticeship programs as the sole source of apprentices on the WRRF Project. Local, non-union contractor representatives expressed concern with this typical CWA provision in a discussion with the City Attorney and Utilities staff prior to the start of negotiations with the Trades Council. In its initial counter-proposal, the City’s negotiating team drafted language allowing apprentices from any state and Federal Department of Labor-approved apprenticeship programs to participate in the WRRF Project. The City’s proposed inclusion of non-union affiliated apprenticeship programs was of significant concern to the Trades Council and its affiliates, as apprentice positions provide valuable training opportunities for union apprentices and further the unions’ primary goal of increasing employment opportunities for union members. After exchanging several proposals and counter- proposals, the City’s negotiating team agreed to accept apprenticeship programs limited to those sponsored by unions. Staff tentatively accepted the provision both to advance negotiations and as a practical consideration in recognition of the very few local, non-union apprenticeship programs capable of referring apprentices of sufficient numbers to meet Labor Code Requirements. Benefits. CWAs require all contractors, regardless of union affiliation, to pay fringe benefit contributions directly to union trust funds on behalf of their employees for the duration of the employees’ time spent working on the covered project. Local, non-union contractor representatives expressed concern with the administrative burden of changing their standard business practices to meet this requirement and noted that the payment of fringe benefits to union trusts could result in additional costs. Additional costs could potentially be incurred as a result of double payment of fringe benefits while non-union employers transition benefit coverage from the employer-provided plan to the union-provided plan. To address this concern, the City’s negotiating team proposed a provision that would allow local, non-union contractors the ability to demonstrate to the City’s Community Workforce Coordinator and the unions that it provides its construction craft employees with company-paid health care and/or retirement benefits of equivalent value to the health care and retirement Packet Pg. 409 Item 14 benefits provided by the union trust funds. The Trades Council and its affiliates were opposed to the inclusion of this provision in the CWA, for a number of practical and administrative concerns, including long-term record keeping associated with later claims for union benefits. The City’s negotiating team ultimately agreed to the inclusion of this provision to advance negotiations on the utilization of core employees by local contractors and the exclusion of inspection and quality assurance staff from the CWA as detailed in the preceding sections of the report. Summary The final, negotiated CWA represents significant concessions by both the City and the Trades Council; however, the agreement meets City Council’s primary objectives of maximizing employment of local workers and opportunities for local contractors without adversely impacting the quality, schedule, or cost of the WRRF Project. The City Attorney’s office, Utilities staff, and the WRRF Project Program Management Team will actively work with the WRRF Project contractors, the Trades Council, and the affiliated unions to successfully implement the agreement and meet the local worker participation goals. ENVIRONMENTAL REVIEW There is no project subject to environmental review associated with the approval of a Community Workforce Agreement. Nothing related to the approval of a CWA affects otherwise applicable environmental review of the WRRF project, which is in compliance with all applicable requirements. The WRRF project itself was analyzed under a separate Environmental Impact Report which was certified by the City Council on August 16, 2016. FISCAL IMPACT The total cost for CWA administration and labor compliance program implementation is estimated to cost between $325,339 and $498,444. The cost estimate assumes that the Community Workforce Coordinator, who is responsible for administering the CWA on behalf of the City, will also serve as the administrator of the WRRF labor compliance program, which is required to satisfy outside funding requirements. The scope of CWA administration and labor compliance program implementation overlaps (e.g., certified payroll review, verification of fringe benefit payments, monitoring of apprentice utilization, etc.), and cost efficiencies can be realized by combining the two roles. If the City decides not to move forward with a CWA, a labor compliance program will still be required at a cost of approximately $145,630 to $224,138. The additional costs of CWA administration over and above the costs of labor compliance are estimated to range between $179,709 and $274,306. The costs of standard labor compliance program implementation and CWA administration are shown in Table 2. Packet Pg. 410 Item 14 Table 2. CWA and Labor Compliance Implementation and Administration Cost Estimate TASK LABOR COMPLIANCE PROGRAM CWA ADMINISTRATION ADDITIONAL COST OF CWA ADMINISTRATION RESOURCE Low High Low High Low High Utilities Department $7,347 $8,266 $10,217 $12,743 $2,870 $4,477 City Attorney $526 $1,053 $3,422 $6,054 $2,895 $5,001 Outside Counsel $0 $0 $6,300 $11,100 $6,300 $11,100 Design Engineer $0 $0 $0 $0 $0 $0 Program Management $15,616 $19,520 $53,680 $78,568 $38,064 $59,048 Community Workforce Coordinator $0 $0 $251,720 $389,980 $251,720 $389,980 Labor Compliance Coordinator $122,140 $195,300 $0 $0 $(122,140) $(195,300) SUBTOTAL $145,630 $224,138 $325,339 $498,444 $179,709 $274,306 The costs to date for outside counsel CWA negotiation support are approximately $20,000 and those services are anticipated to conclude well under the approved contract cap of $40,000. The City also incurred additional program management costs of approximately $14,000 associated with the negotiations of the CWA. ALTERNATIVES Elect not to enter into the CWA with the Tri Counties Building and Construction Trades Council. The City Council may choose not to approve execution of the CWA at this time. Council may select this alternative if it believes that additional negotiations with the Trades Council are warranted or if a CWA would not benefit the WRRF Project. Elect to require enhanced local outreach by the WRRF Project bidders in lieu of a CWA. The City Council may choose to implement an enhanced local outreach program in lieu of a CWA, whereby bidders on the WRRF Project would be required to perform targeted outreach to local contractors to increase participation on the WRRF Project by local contractors and local workers. Attachment C includes enhance outreach contract provisions. Attachments: a - SLO WRRF Project Agreement b - 07-10-2018 Item 13 - WRRF Project Labor Agreement Eval c - Local Contractor Good Faith Outreach Requirements_20180907 Packet Pg. 411 Item 14 COMMUNITY WORKFORCE AGREEMENT BY AND BETWEEN THE CITY OF SAN LUIS OBISPO AND THE TRI COUNTIES BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO AND THE SIGNATORY CRAFT COUNCILS AND UNIONS FOR THE WATER RESOURCE RECOVERY FACILITY PROJECT Packet Pg. 412 Item 14 City of San Luis Obispo 2 Community Workforce Agreement TABLE OF CONTENTS Page ARTICLE 1 INTENT AND PURPOSE 5 ARTICLE 2 SCOPE OF AGREEMENT 6 ARTICLE 3 UNION RECOGNITION AND EMPLOYMENT 10 ARTICLE 4 UNION ACCESS AND STEWARDS 15 ARTICLE 5 WAGES AND BENEFITS 16 ARTICLE 6 WORK STOPPAGES AND LOCKOUTS 17 ARTICLE 7 WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES 21 ARTICLE 8 MANAGEMENT RIGHTS 22 ARTICLE 9 SETTLEMENT OF GRIEVANCES AND DISPUTES 24 ARTICLE 10 REGULATORY COMPLIANCE 26 ARTICLE 11 SAFETY AND PROTECTION OF PERSON AND PROPERTY 27 ARTICLE 12 TRAVEL AND SUBSISTENCE 27 ARTICLE 13 APPRENTICES 27 ARTICLE 14 PRE-JOB CONFERENCES 28 ARTICLE 15 LABOR/MANAGEMENT COOPERATION 29 ARTICLE 16 SAVINGS AND SEPARABILITY 29 ARTICLE 17 WAIVER 30 ARTICLE 18 AMENDMENTS 30 ARTICLE 19 ENTIRE AGREEMENT 30 ARTICLE 20 DURATION OF THE AGREEMENT 31 ATTACHMENT A – LETTER OF ASSENT 34 ATTACHMENT B – LOCAL RESIDENT ZIP CODES 35 ATTACHMENT C – CRAFT EMPLOYEE REQUEST FORM 36 ATTACHMENT D – DRUG AND ALCOHOL TESTING POLICY 38 Packet Pg. 413 Item 14 City of San Luis Obispo 3 Community Workforce Agreement CITY OF SAN LUIS OBISPO WATER RESOURCE RECOVERY FACILITY PROJECT COMMUNITY WORKFORCE AGREEMENT This Community Workforce Agreement (hereinafter, “Agreement”) is entered into by and between the City of San Luis Obispo and its successors or assigns, (“City”), the Tri Counties Building & Construction Trades Council, AFL-CIO (the “Council”), and the signatory Craft Councils and Unions signing this Agreement (hereinafter together with the Council, collectively, the “Unions”). This Agreement establishes the labor relations guidelines and procedures for the City and for the Contractors and craft employees represented by the Unions and engaged in Project Work. The City, Council and Unions are hereinafter referred to herein, as the context may require, as “Party” or “Parties.” The Parties to this Agreement understand that if this Agreement is acceptable to the City, the policy of the City will be for the Project Work to be contracted exclusively to Contractors who agree to execute and be bound by the terms of this Agreement, directly or through the Letter of Assent (a form of which is attached as “Attachment A”), and to require each of its subcontractors, of whatever tier, to become bound. The City shall include, directly or by incorporation by reference, the requirements of this Agreement in the advertisement of and/or specifications for each and every contract for Project Work to be awarded by the City. The City shall actively administer and enforce the obligations of this Agreement to ensure that the benefits envisioned from it flow to all signatory Parties, the Contractors and crafts persons working under it, and the residents of the City. The City shall therefore designate a “Community Workforce Coordinator,” either from its own staff or an independent contractor acting on behalf of the City, who will, with the support of the Contractors and Unions, monitor compliance with this Agreement; assist, as the authorized representative of the City, in developing and implementing the programs referenced herein, all of which are critical to fulfilling the intent and purposes of the Parties and this Agreement; and to otherwise implement and administer this Agreement. The term “Apprentice” as used in this Agreement shall mean those employees registered and participating in Joint Labor/Apprenticeship Programs approved by the Division of Apprenticeship Standards, Department of Industrial Relations of the State of California, and the Federal Department of Labor to the extent required by any Project funding source. The term “Contractor” as used in this Agreement includes any individual, firm, partnership, or corporation, or combination thereof, including joint ventures, which as an Independent Contractor has entered into a contract with the City with respect to the Project Work, or with another Contractor as a subcontractor of whatever tier utilized by such Contractors for Project Work. The term “Joint Labor/Apprenticeship Program” or “Approved Apprenticeship Programs,” as used in this Agreement means a joint Union and Contractor administered apprenticeship program certified by the Division of Apprenticeship Standards, Department of Industrial Relations of the State of California, and the Federal Department of Labor to the extent required by any Project funding source. Packet Pg. 414 Item 14 City of San Luis Obispo 4 Community Workforce Agreement The term “Local Area Resident” as used in this Agreement means a qualified person whose principal residence is located within the territory covered by the zip codes contained in Appendix B to this Agreement in priority order. The term “Local Area Contractor” as used in this Agreement means a construction contracting entity whose principal place of business is located within the territory of Tier 1 or Tier 2 contained in Appendix B to this Agreement and has so located and continuously operated for a period of at least one (1) year prior to the award of Project Work. The term “Letter of Assent” as used in this Agreement means the document that each Contractor (of any tier) must sign and submit to the Community Workforce Coordinator and the Council, before beginning any Project Work, which formally binds them to adhere to all applicable forms, requirements and conditions of this Agreement, in the form of the letter attached hereto as Attachment A. The term “Project” or “Project Work” as used in this Agreement means the City’s construction, abatement, demolition, renovation, rehabilitation, upgrade and improvement work, and new construction as described in Section 2.2 of this Agreement and as contracted out by the City. The terms “Master Labor Agreements” or “MLAs,” as used in this Agreement, means the local collective bargaining agreements of the signatory Unions having jurisdiction over the Project Work and which have signed this Agreement. The term “Subscription Agreement” means the contract between a Contractor and a Union’s Labor/Management Trust Fund(s) that allows the Contractor to make the appropriate fringe benefit contributions in accordance with the terms of MLA. The Union and all Contractors agree to abide by the terms and conditions of this Agreement and agree that this Agreement represents the complete understanding of the Parties. No Contractor is or will be required to sign or otherwise become a party to any other collective bargaining agreement with a signatory Union as a condition of performing work within the scope of this Agreement. The Parties agree that this Agreement will be made available to, and will fully apply to, any successful bidder for Project Work, without regard to whether that successful bidder performs work at other sites on either a union or non-union basis. This Agreement shall not apply to any work of any Contractor other than that on Project Work specifically covered by this Agreement. The use of masculine or feminine gender or titles in this Agreement should be construed as including both genders and not as gender limitations unless the Agreement clearly requires a different construction. Further, the use of Article titles and/or Section headings are for information only and carry no legal significance. Packet Pg. 415 Item 14 City of San Luis Obispo 5 Community Workforce Agreement ARTICLE 1 INTENT AND PURPOSE Section 1.1 Identification and Retention of Skilled Labor and Employment of Local Area Residents: The construction and capital improvement work scheduled to be performed by the City will require large numbers of craft personnel and other supporting workers. The parties understand and intend to use the opportunities provided by the extensive amount of work to be covered by this Agreement to identify and promote, through cooperative efforts, programs and procedures (which may include, for example, programs to prepare persons for entrance into formal apprenticeship programs, or outreach programs to the community describing opportunities available as a result of the Project), the interest and involvement of Local Area Residents in the construction industry; assist them in entering the construction trades, and through utilization of the approved apprenticeship programs, provide training opportunities for those Local Area Residents and other individuals wishing to pursue a career in construction. Further, with assistance of the Community Workforce Coordinator, the City, the Contractors, the Unions and their affiliated regional and national organizations, will work jointly to develop and implement procedures promptly for the identification of craft needs, the scheduling of work to facilitate the utilization of available craft workers, and to secure the services of craft workers in sufficient numbers to meet the high demands of the Project Work to be undertaken. Section 1.2 Encouragement of Local Area Contractors: The Project will provide many opportunities for local contractors and suppliers to participate, and the parties therefore agree that they will cooperate with all efforts of the City, the Community Workforce Coordinator, and other organizations retained by the City for the purpose of encouraging and assisting the participation of such businesses in Project Work. The parties shall ensure that the provisions of this Agreement do not inadvertently establish impediments to the participation of Local Area Contractors and Local Area Residents. Section 1.3 Project Cooperation: The parties recognize that the construction to take place under this Agreement involves unique and special circumstances which dictate the need for the parties to develop specific procedures to promote high quality, rapid and uninterrupted construction methods, and practices. The smooth operation and cost effective, successful and timely completion of the work is vitally important to the City. The parties therefore agree that maximum cooperation among all parties involved is required; and that with construction work of this magnitude, with multiple contractors and crafts performing work on multiple sites over an extended period of time, all parties agree to work in a spirit of harmony and cooperation, and with an overriding commitment to maintain the continuity and timely completion of Project Work. Section 1.4 Workers' Compensation Carve-out: Further, the parties recognize the potential which the Project may provide for the implementation of a cost-effective workers' compensation system as permitted by California Labor Code, Section 3201.5, as revised. Should the City request, the Union parties agree to meet and negotiate in good faith with representatives of the City for the development, and subsequent implementation, of an effective program involving improved and revised dispute resolution and medical care procedures for the delivery of workers’ compensation benefits and medical coverage as permitted by the Code. Packet Pg. 416 Item 14 City of San Luis Obispo 6 Community Workforce Agreement Section 1.5 Peaceful Resolution of All Disputes: In recognition of the special needs of the Project and to maintain a spirit of harmony, labor-management peace and stability during the term of this Community Workforce Agreement, the parties agree to establish effective and binding methods for the settlement of all misunderstandings, disputes and grievances; and in recognition of such methods and procedures, the unions agree not to engage in any strike, slowdowns, interruptions, or disruption of Project Work, and the contractors agree not to engage in any lockout, or any other action impairing or impeding the Project Work. Section 1.6 Binding Agreement on Parties and Inclusion of Local Area Residents and Businesses: By executing this Agreement, the City, Council, Unions and Contractors agree to be bound by each and all of the provisions of this Agreement, and pledge that they will work together to adopt, develop, and implement processes and procedures which are inclusive of the residents and businesses of the City. ARTICLE 2 SCOPE OF AGREEMENT Section 2.1 General: This Agreement shall only apply to work which is contracted out by the City, as specified in Section 2.2 of this Article, performed by those Contractor(s) of whatever tier that have contracts awarded for such work. Section 2.2 Specific: The Project is defined and limited to: 2.2.1 All construction, abatement, demolition, renovation, rehabilitation, upgrade and improvement work and new construction to be performed pursuant to or under a contract with the City for the Water Resource Recovery Facility Project (City Spec. Number 91620) as finally approved and constructed, and all subcontracts flowing from this contract (“Project Work”), except that work performed under the contract with the City’s construction manager shall be excluded from the scope of this Agreement; and 2.2.2 The Parties understand that the City may at any time, and at its sole discretion, determine to build segments of the Project under this Agreement which were not currently proposed, or to modify or not to build any one or more particular segments proposed to be covered. It is understood by the Parties that the City may at any time, and at its sole discretion, add additional projects under this Agreement not otherwise covered by this Agreement. Section 2.3 Exclusions: Items specifically excluded from the Scope of this Agreement include the following: 2.3.1 Work of non-manual employees, including but not limited to: superintendents; administrators; supervisors; time keepers; mail carriers; clerks; office workers; messengers; guards; safety personnel; emergency medical and first aid technicians; and other professional, engineering, administrative, supervisory and management employees; 2.3.2 Equipment and machinery operated by the City; Packet Pg. 417 Item 14 City of San Luis Obispo 7 Community Workforce Agreement 2.3.3 All off-site manufacture and handling of materials, equipment, or machinery; provided, however, that lay down or storage areas for equipment or material and manufacturing (prefabrication) sites, dedicated solely to the Project or Project Work, and the movement of materials or goods between locations on a Project site are within the scope of this Agreement; 2.3.4 All employees of the City, Community Workforce Coordinator, design teams (including, but not limited to, architects engineers and master planners), or any other consultants for the City (including, but not limited to, project managers and construction managers and their employees not engaged in Project Work) and their sub-consultants, and other employees of professional service organizations, not performing manual labor within the scope of this Agreement. 2.3.5 Any work performed on or near or leading to or into a site of work covered by this Agreement and undertaken by state, county, city, California Polytechnic University, or other governmental bodies, or their Contractors or consultants; or by public utilities, or their Contractors or consultants; and/or by the City or its Contractors or consultants (for work that is not within the scope of this Agreement); 2.3.6 Off-site maintenance of leased equipment and on-site supervision of such work; 2.3.7 Work required to be performed by the manufacturer’s personnel and/or personnel certified by the manufacturer, subject to the conditions provided in this section. Certain equipment and systems of a highly technical and specialized nature may have to be installed at the Project. The nature of such equipment and systems, together with requirements of manufacturer’s warranty, may dictate that it be prefabricated, pre-piped, and/or pre-wired. The Unions agree to install such material, equipment and systems without incident, or allow such installation to be performed by the manufacturer’s employees or a contractor designated by the manufacturer where the Unions are unable to perform such work. If a warranty on the manufacturer’s specialty or technical equipment or systems purchased by the City requires that the installation and/or programming of such specialty or technical equipment or system be performed by the manufacturer’s own personnel or a contractor certified by the manufacturer, and there are no Union signatory contractors certified or authorized by the manufacturer to install and/or perform such work, then such installation and or programming shall not be covered under this Agreement. The General Contractor shall notify the Unions at the pre-job conference of the use of this provision and shall provide copies of the written warranty that require that the work be performed by the manufacturer’s own personnel or a contractor certified by the manufacturer, to the affected Union. When the warranty does not require installation or programming by the manufacturer’s own personnel or a contractor certified by the manufacturer, the Unions agree to perform and install such work under the supervision and direction of the manufacturer’s representative; 2.3.8 Non-construction support services contracted by the City, Community Workforce Coordinator, or Contractor in connection with this Project; 2.3.9 Off-site laboratory work for testing; Packet Pg. 418 Item 14 City of San Luis Obispo 8 Community Workforce Agreement 2.3.10 The movement and placement of free-standing furniture owned or controlled by the Owner; however, the installation of office furniture that is attached to the realty shall be covered by this Agreement. 2.4 After installation by the Contractor(s) and upon notice of completion, it is understood the City reserves the right to perform start-up, operation, repair, maintenance or revision of equipment or systems with persons of the City’s choice. If required, the service representative may make a final check to protect the terms of a manufacturer’s guarantee or warranty prior to start-up of a piece of equipment. Section 2.5 Awarding of Contracts: 2.5.1 The City and/or the Contractors, as appropriate, have the absolute right to award contracts or subcontracts on this Project to any Contractor notwithstanding the existence or non- existence of any agreements between such Contractor and any Union parties, provided only that such Contractor is ready, willing and able to execute and comply with this Community Workforce Agreement should such Contractor be awarded work covered by this Agreement. 2.5.2 Subject to section 2.6, below, it is agreed that all Contractors and subcontractors of whatever tier, who have been awarded contracts for work covered by this Agreement, shall be required to accept and be bound to the terms and conditions of this Community Workforce Agreement, and shall evidence their acceptance by the execution of the Letter of Assent set forth in Attachment “A” hereto, prior to the commencement of work. At the time that any Contractor enters into a subcontract with any subcontractor of any tier providing for the performance on the construction contract, the Contractor shall provide a copy of this Agreement to said subcontractor and shall require the subcontractor, as a part of accepting the award of a construction subcontract, to agree in writing in the form of a Letter of Assent to be bound by each and every provision of this Agreement prior to the commencement of work on the Project. No Contractor or subcontractor shall commence Project Work without having first provided a copy of the Letter of Assent as executed by it to the Community Workforce Coordinator and to the Council forty-eight (48) hours before the commencement of Project Work, or within forty- eight (48) hours after the award of Project Work to that Contractor (or subcontractor), whichever occurs later. Section 2.6 Coverage Exception: This Agreement shall not apply if the City receives funding or assistance from any Federal, State, local or other public entity for the Construction Contract if a requirement, condition or other term of receiving that funding or assistance, at the time of the awarding of the contract, is that the City not require bidders, contractors, subcontractors or other persons or entities to enter into an agreement with one or more labor organizations or enter into an agreement that contains any of the terms set forth herein. The City agrees that it will make every effort to establish the enforcement of this Agreement with any governmental agency or granting authority. Packet Pg. 419 Item 14 City of San Luis Obispo 9 Community Workforce Agreement Section 2.7 Master Labor Agreements: 2.7.1 The provisions of this Agreement, including the Master Labor Agreements (hereinafter “MLAs”), as such may be changed from time-to-time and which are incorporated herein by reference, shall apply to the work covered by this Agreement. This Agreement is not intended to supersede the MLAs between any of the Employers performing construction work on the Project and a Union signatory thereto except to the extent the provisions of this Agreement are inconsistent with such MLAs, in which event the provisions of this Agreement shall apply. However, such does not apply to work performed under the National Cooling Tower Agreement, the National Stack Agreement, the National Transit Division Agreement (NTD), work within the jurisdiction of the International Union of Elevator Constructors, and all instrument calibration and loop checking work performed under the terms of the UA/IBEW Joint National Agreement for Instrument and Control Systems Technicians except that Articles dealing with Work Stoppages and Lock-Outs, Work Assignments and Jurisdictional Disputes, and Settlement of Grievances and Disputes shall apply to such work. Where a subject is covered by the provisions of an MLA and not covered by this Agreement, the provisions of the MLA shall apply. It is specifically agreed that no later agreement shall be deemed to have precedence over this Agreement unless signed by all Parties signatory hereto who are then currently employed or represented at the Project. Any dispute as to the applicable source between this Agreement and any MLA for determining the wages, hours or working conditions of employees on this Project shall be resolved under the procedures established in Article 9. 2.7.2 It is understood that this Agreement, together with the referenced MLAs, constitutes a self-contained, stand-alone agreement and by virtue of having become bound to this Community Workforce Agreement, the Contractor will not be obligated to sign any other local, area or national collective bargaining agreement as a condition of performing work within the scope of this Agreement (provided, however, that the Contractor may be required to sign an uniformly applied, non-discriminatory “Subscription Agreement” at the request of the trustees or administrator of a trust fund established pursuant to Section 302 of the Labor Management Relations Act, and to which such Contractor is bound to make contributions under this Agreement, provided that such Subscription Agreement does not purport to bind the Contractor beyond the terms and conditions of this Agreement and/or expand its obligation to make contributions pursuant thereto). It shall be the responsibility of the prime Contractor to have each of its subcontractors sign such Subscription Agreement, to the extent required by this Agreement, with the appropriate Craft Union prior to the subcontractor beginning Project Work. Section 2.8 Binding Signatories Only: This Agreement shall only be binding on the signatory Parties hereto, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such Party. Section 2.9 Other City Work: This Agreement shall be limited to the construction work within the Scope of this Agreement including, specifically, site preparation and related demolition work, and new construction and major rehabilitation work referenced in Section 2.2 above. Nothing contained herein shall be interpreted to prohibit, restrict, or interfere with the performance of any other operation, work or function not covered by this Agreement, which may Packet Pg. 420 Item 14 City of San Luis Obispo 10 Community Workforce Agreement be performed by City employees or contracted for by the City for its own account, on its property or in and around a Project site. Section 2.10 Separate Liability: It is understood that the liability of the Contractor(s) and the liability of the separate Unions under this Agreement shall be several and not joint. The Unions agree that this Agreement does not have the effect of creating any joint employment status between or among the City or Community Workforce Coordinator and/or any Contractor. Section 2.11 Completed Project Work: As areas, phases, portions, sections or segments of Project Work are accepted by the City, this Agreement shall have no further force or effect on such items or areas except where the Contractor is directed by the City or its representatives to engage in repairs, modification, check-out and/or warranties functions required by its contract(s) with the City. ARTICLE 3 UNION RECOGNITION AND EMPLOYMENT Section 3.1 Recognition: The Contractor recognizes the Council and the Unions as the exclusive bargaining representative for the employees engaged in Project Work. Section 3.2 Contractor Selection of Employees: The Contractor shall have the right to determine the competency of all employees, the duties of such employees within their craft jurisdiction, and shall have the sole responsibility for selecting employees to be laid off. The Contractor shall also have the right to reject any applicant referred by a Union for any reason, subject to any reporting pay required under the appropriate MLA; provided, however, that such right is exercised in good faith and not for the purpose of avoiding the Contractor’s commitment to employ qualified workers through the procedures endorsed in this Agreement. Section 3.3 Referral Procedures: 3.3.1 For signatory Unions now having a job referral system contained in a MLA, the Contractor agrees to comply with such system and it shall be used exclusively by such Contractor, except as modified by this Agreement. Such job referral system will be operated in a nondiscriminatory manner and in full compliance with federal, state, and local laws and regulations which require equal employment opportunities and non-discrimination. All of the foregoing hiring procedures, including related practices affecting apprenticeship, shall be operated so as to consider the goals of the City to encourage employment of Local Area Residents and participation of Local Area Contractors on the Project, and to facilitate the ability of all Contractors to meet their employment needs. 3.3.2 The Unions will exert their best efforts to recruit and refer sufficient numbers of skilled craft workers to fulfill the labor requirements of the Contractor, including specific employment obligations to which the Contractor may be legally and/or contractually obligated; and to refer apprentices as requested to develop a larger, skilled workforce. The Unions will work with their affiliated regional and national unions, and jointly with the Community Workforce Coordinator and others designated by the City, to identify and refer competent craft Packet Pg. 421 Item 14 City of San Luis Obispo 11 Community Workforce Agreement persons as needed for Project Work, and to identify and hire individuals, giving preference to Local Area Residents, for entrance into approved apprenticeship programs, or participation in other identified programs and procedures to assist individuals in qualifying and becoming eligible for such apprenticeship programs, all maintained to increase the available supply of skilled craft personnel. 3.3.3 The Union shall not knowingly refer an employee currently employed by a Contractor on Project Work to any other Contractor. 3.3.4 Core Workers: As the initial workers on the Project, a Local Area Contractor, which is not currently working under a Master Labor Agreement, that is awarded work on the Project may directly employ up to a maximum of three (3) members of its regular, local, experienced work force, where the employees so designated as “Core Workers” meet the following qualifications: (a) Possess any license required by state or Federal law for the Project work to be performed; (b) Have worked at least two thousand (2,000) hours in the applicable trade or craft; (c) Have been employed by the Contractor for at least sixty (60) working days of the one hundred (100) working days immediately preceding the award of the Project Work to the Contractor; (d) Are Local Area Residents; (e) Have the ability to safely perform the basic functions of the applicable craft or trade. After directly employing up to three (3) Core Workers, the Local Area Contractor shall thereafter be subject to the procedures for Union referral of Project workers below. The Local Area Contractor, upon request by the Community Workforce Coordinator, shall provide the necessary documentation to support the qualification of an employee as a Core Worker. If additional workers are needed following the hiring of workers pursuant to the provisions above, then the Local Area Contractor shall request and the Union shall refer a worker from its referral list. Local Area Contractors may then directly employ one (1) additional of their qualified “Core Workers” that is referred pursuant to the referral procedures referenced in this section 3, after which one (1) worker shall be referred from the Union referral list. This alternating procedure of referral shall continue until a maximum of seven (7) qualified “Core Workers” have been directly employed by or referred to the Contractor. All additional workers shall be requested and referred pursuant to otherwise applicable Union referral list procedures and the local hire provisions of this Agreement. On layoffs, the Contractor shall reverse the alternating process. The Contractor shall notify the appropriate Union utilizing the Craft Request Form (Attachment “C”) and each of the additional workers utilized under the procedures in this paragraph shall register with the Union’s hiring hall before commencing work on the Project. If Packet Pg. 422 Item 14 City of San Luis Obispo 12 Community Workforce Agreement there is any question regarding a worker’s eligibility under this section 3.3.4, the Contractor shall provide satisfactory proof of such at a Union’s request. The provisions of this section 3.3.4 shall only apply to Local Area Contractors and workers who are not working under the terms of a Master Labor Agreement at the time of their transfer to work covered under this Agreement. All other Contractors not currently signatory to a Master Labor Agreement that is awarded work on the Project may directly employ one Core Worker (as defined below) that is referred pursuant to the referral procedures referenced in this Section 3 after which one (1) worker shall be referred from the Union referral list. This alternating procedure of referral shall continue until a maximum of five (5) qualified “Core Workers” have been directly employed by or referred to the Contractor. All additional workers shall be requested and referred pursuant to otherwise applicable Union referral list procedures and the local hire provisions of this Agreement. On layoffs, the Contractor shall reverse the alternating process. The Contractor shall notify the appropriate Union utilizing the Craft Request Form (Attachment “C”) and each of the additional workers utilized under the procedures in this paragraph shall register with the Union’s hiring hall before commencing work on the Project. If there is any question regarding a worker’s eligibility under this section 3.3.4, the Contractor shall provide satisfactory proof of such at a Union’s request. “Core Workers” are those employees who meet the following qualifications: (a) Possesses any license required by state or Federal law for the Project work to be performed; (b) Have worked at least two thousand (2,000) hours in the applicable trade or craft; (c) Have been employed by the Contractor for at least sixty (60) working days of the one hundred (100) working days immediately preceding the award of the Project Work to the Contractor; and (d) Have the ability to safely perform the basic functions of the applicable craft or trade. The Core Workers shall present to and be dispatched through the applicable Union referral procedures. 3.3.4.1 Prior to each Contractor performing any work on the Project, each Contractor shall provide a list of its “Core Workers” to the Community Workforce Coordinator and the Council. Failure to do so will prohibit the Contractor from using any “Core Workers”. Upon request by any Party to this Agreement, the Contractor hiring any “Core Worker” shall provide satisfactory proof (e.g., payroll records, quarterly tax records, driver’s license, voter registration, postal address and such other documentation) evidencing the “Core Worker’s” qualification as a core employee to the Community Workforce Coordinator and the Council. Section 3.4 Non-Discrimination in Referral, Employment, and Contracting: The Unions and Contractors agree that they will not discriminate against any employee or applicant for employment in hiring and dispatching on the basis of race, color, religion, sex, gender, national origin, age, membership in a labor organization, sexual orientation, political affiliation, marital status, or disability. The Parties shall jointly endeavor to assure that these commitments are fully met, and that any provisions of this Agreement which may appear to interfere within a local and Packet Pg. 423 Item 14 City of San Luis Obispo 13 Community Workforce Agreement small business enterprises successfully bidding for work within the scope of this Agreement shall be carefully reviewed, and adjustments made as may be appropriate and agreed upon among the Parties, to ensure full compliance with the spirit and letter of the City’s policies and commitment to its goals for the significant utilization of local and small businesses as direct Contractors or suppliers for Project Work. Section 3.5 Employment of Local Area Residents: 3.5.1 The Unions and Contractors agree that, to the maximum extent allowed by law, and as long as they possess the requisite skills and qualifications, the Unions will exert their best efforts to recruit sufficient numbers of skilled craft Local Area Residents as defined herein, to fulfill the requirements of the Contractors and shall refer on a priority basis all available, qualified Local Area Resident workers. In recognition of the fact that the City and the communities surrounding Project Work will be impacted by the construction of the Project, the parties agree to support the hiring of Local Area Resident workers, as well as Veterans. Towards that end, the Unions agree that they will exert their best efforts to encourage and provide referrals and utilization of qualified workers in accordance with the following priority: 3.5.1.1 First, Local Area Residents residing in those first-tier zip codes which cover the City of San Luis Obispo (Tier 1), as reflected on the attached list of zip codes as reflected on Attachment “B”; 3.5.1.2 If the Unions cannot provide the Contractors with a sufficient number of qualified workers from paragraph 3.5.1.1, above, the Unions will exert their best efforts to then recruit qualified workers residing within the County of San Luis Obispo (Tier 2), and shall refer all such available workers, giving first priority to Veterans residing in county. 3.5.1.3 If the Unions still have not provided the Contractors with a sufficient number of qualified workers from paragraphs 3.5.1.1 and 3.5.1.2, above, the Unions will then exert their best efforts to recruit qualified workers residing in the zip codes specified within Santa Barbara and Monterey counties (Tier 3), and shall refer all such available workers, giving first priority to Veterans residing in those zip codes. 3.5.1.4 If the Unions still have not provided the Contractors with a sufficient number of qualified workers from paragraphs 3.6.1.1, 3.6.1.2, and 3.6.1.3 above, the Unions will then exert their best efforts to recruit qualified workers residing in the zip codes specified within Ventura County (Tier 4), and shall refer all such available workers, giving first priority to Veterans residing in those zip codes. 3.5.2 A goal of at least 30% of all of the construction labor hours worked on the Project shall be from Local Area Residents, with first priority referrals on all Contractor requests given to available Local Area Residents, in ascending order of tier, regardless of attainment of goals. To facilitate the dispatch of Local Area Residents, all Contractors will be required to utilize the Craft Employee Request Form whenever they are requesting the referral of any employee from a Union referral list for any Project Work, a sample of which is attached as Attachment “C”. Packet Pg. 424 Item 14 City of San Luis Obispo 14 Community Workforce Agreement 3.5.3 The Community Workforce Coordinator shall work with the Unions and Contractors in the administration of this Local Area Resident preference; and the Contractors and Unions shall cooperate by maintaining adequate records to demonstrate to the Community Workforce Coordinator that such preferences have been pursued. Section 3.6 Helmets to Hardhats: The Contractors and the Unions recognize a desire to facilitate the entry into the building and construction trades of veterans who are interested in careers in the building and construction industry. The Contractors and Unions agree to utilize the services of the Center for Military Recruitment, Assessment and Veterans Employment (hereinafter “Center”) and the Center’s “Helmets to Hardhats” program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the Parties. For purposes of this Agreement, the term “Eligible Veteran” shall have the same meaning as the term “veteran” as defined under Title 5, Section 2108(1) of the United States Code as the same may be amended or re-codified from time to time. It shall be the responsibility of each qualified Local Area Resident to provide the Unions with proof of his/her status as an Eligible Veteran. The Unions and Contractors agree to coordinate with the Center to create and maintain an integrated database of veterans interested in working on this Project and of apprenticeship and employment opportunities for this Project. To the extent permitted by law, the Unions will give credit to such veterans for bona fide, provable past experience. Section 3.7 Time for Referral: If any Union’s registration and referral system does not fulfill the requirements for specific classifications requested by any Contractor within forty-eight (48) hours (excluding Saturdays, Sundays, and holidays), that Contractor may use employment sources other than the Union registration and referral services and may employ applicants meeting such standards from any other available source. The Contractors shall inform the Union of any applicants hired from other sources within forty-eight (48) hours of such applicant being hired, and such applicants shall register with the appropriate hiring hall, if any, prior to commencing work on the Project. Section 3.8 Lack of Referral Procedure: If a signatory Union does not have a job referral system as set forth in Section 3.3 above, the Contractors shall give the Union equal opportunity to refer applicants. The Contractors shall notify the Union of employees so hired, as set forth in Section 3.5. Section 3.9 Union Membership: No employee covered by this Agreement shall be required to join any Union as a condition of being employed, or remaining employed, for the completion of Project Work; provided, however, that any employee who is a member of the referring Union at the time of referral shall maintain that membership in good standing while employed under this Agreement. All employees shall, however, he required to comply with the union security provisions of the applicable MLA, for the period during which they are performing on-site Project Work to the extent, as permitted by law, of rendering payment of an amount equal to the applicable monthly window and working dues uniformly required as, at a minimum, representation fees to the Union. Packet Pg. 425 Item 14 City of San Luis Obispo 15 Community Workforce Agreement Section 3.10 Individual Seniority: Except as provided in Section 4.3, individual seniority shall not be recognized or applied to employees working on the Project; provided, however, that group and/or classification seniority in a Union’s MLA, as of the effective date of this Agreement shall he recognized for purposes of layoffs. Section 3.11 Foremen: The selection and number of craft foreman and/or general foreman shall be the responsibility of the Contractor. All foremen shall take orders exclusively from the designated Contractor representatives. Craft foreman shall be designated as working foreman at the request of the Contractors. ARTICLE 4 UNION ACCESS AND STEWARDS Section 4.1 Access to Project Sites: Authorized representatives of the Union shall have access to Project Work, provided that they do not interfere with the work of employees and further provided that such representatives fully comply with posted visitor, security, and safety rules. Section 4.2 Stewards: 4.2.1 Each signatory Union shall have the right to dispatch a working journeyperson as a steward for each shift and shall notify the Contractor in writing of the identity of the designated steward or stewards prior to the assumption of such person’s duties as steward. Such designated steward or stewards shall not exercise any supervisory functions. There will be no non-working stewards. Stewards will receive the regular rate of pay for their respective crafts. 4.2.2 In addition to his/her work as an employee, the steward should have the right to receive, but not to solicit, complaints or grievances and to discuss and assist in the adjustment of the same with the employee’s appropriate supervisor. Each steward should be concerned only with the employees of the steward’s Contractor and, if applicable, subcontractor(s), and not with the employees of any other Contractor. A Contractor will not discriminate against the steward on the basis of proper performance of his/her Union duties. 4.2.3 When a Contractor has multiple, non-contiguous work locations at one site, the Contractor may request, and the Union shall appoint such additional working stewards as the Contractor requests to provide independent coverage of one or more such locations. In such cases, a steward may not service more than one work location without the approval of the Contractor. 4.2.4 The stewards shall not have the right to determine when overtime shall be worked or who shall work overtime. Section 4.3 Steward Layoff/Discharge: The relevant Contractor agrees to notify the appropriate Union twenty-four (24) hours before the layoff of a steward, except in the case of disciplinary discharge for just cause. If the steward is protected against such layoff by the provisions of the applicable MLA, such provisions shall be recognized when the steward Packet Pg. 426 Item 14 City of San Luis Obispo 16 Community Workforce Agreement possesses the necessary qualifications to perform the remaining work. In any case in which the steward is discharged or disciplined for just cause, the appropriate Union will be notified immediately by the Contractor, and such discharge or discipline shall not become final (subject to any later filed grievance) until twenty-four (24) hours after such notice has been given. Section 4.4 Employees on Non-Project Work: On work where the personnel of the City may be working in close proximity to the construction activities covered by this Agreement, the Union agrees that the Union representatives, stewards, and individual workers will not interfere with the City personnel, or with personnel employed by the any other employer not a Party to this Agreement. ARTICLE 5 WAGES AND BENEFITS Section 5.1 Wages: All employees covered by this Agreement shall be classified in accordance with work performed and paid by the Contractors the hourly wage rates for those classifications in compliance with the applicable prevailing wage rate determination established pursuant to applicable law. If a prevailing rate increases under law, the Contractor shall pay that rate as of its effective date under the law. Notwithstanding any other provision of this Agreement, this Agreement does not relieve Contractors directly signatory to one or more of the Master Labor Agreements from paying all wages set forth in such Agreements. Section 5.2 Benefits: 5.2.1 Contractors shall pay contributions to the established employee benefit funds in the amounts designated in the appropriate MLA, and make all employee authorized deductions in the amounts designated in the appropriate MLA; provided, however, that such contributions shall not exceed the contribution amounts set forth in the applicable prevailing wage determination. Notwithstanding any other provision of this Agreement, Contractors directly signatory to one or more of the Master Labor Agreements are required to make all contributions set forth in those Master Labor Agreements without reference to the forgoing. Bona fide benefit plans with joint trustees or authorized employee deduction programs established or negotiated under the applicable MLA, or by the Parties to this Agreement during the life of this Agreement may be added. 5.2.2 The Contractor adopts and agrees to be bound by the written terms of the applicable, legally established, trust agreement(s) specifying the detailed basis on which payments are to be made into, and benefits paid out of, such trust funds for its employees. The Contractor authorizes the Parties to such trust funds to appoint trustees and successor trustees to administer the trust funds and hereby ratifies and accepts the trustees so appointed as if made by the Contractor. 5.2.3 Each Contractor and subcontractor is required to certify to the Community Workforce Coordinator that it has paid all benefit contributions due and owing to the appropriate Trust(s) prior to the receipt of its final payment and/or retention. Further, upon timely notification by a Union to the Community Workforce Coordinator, the Community Workforce Packet Pg. 427 Item 14 City of San Luis Obispo 17 Community Workforce Agreement Coordinator shall work with any prime Contractor or subcontractor who is delinquent in payments to assure that proper benefit contributions are made, to the extent of requesting the City or the prime Contractor to withhold payments otherwise due such Contractor, until such contributions have been made or otherwise guaranteed. Section 5.3 Wage Premiums: Wage premiums, including but not limited to pay based on height of work, hazard pay, scaffold pay, and special skills shall not be applicable to work under this Agreement, except to the extent provided for in any applicable prevailing wage determination. Section 5.4 Compliance with Prevailing Wage Laws: The Parties agree that the Community Workforce Coordinator shall monitor the compliance by all Contractors and subcontractors with all applicable federal and state prevailing wage laws and regulations, and that such monitoring shall include Contractors engaged in what would otherwise be Project Work but for the exceptions to Agreement coverage in Section 2.2. All complaints regarding possible prevailing wage violations shall be referred to the Community Workforce Coordinator for processing, investigation, and resolution, and if not resolved within thirty (30) calendar days, may be referred by any party to the state labor commissioner. ARTICLE 6 WORK STOPPAGES AND LOCK-OUTS Section 6.1 No Work Stoppages or Disruptive Activity: The Council and the Unions agree that neither they, and each of them, nor their respective officers or agents or representatives, shall incite or encourage, condone or participate in any strike, walk-out, slow-down, picketing, observing picket lines or other activity of any nature or kind whatsoever, for any cause or dispute whatsoever with respect to or in any way related to Project Work, or which interferes with or otherwise disrupts Project Work, or with respect to or related to the City or Contractors or subcontractors, including, but not limited to economic strikes, unfair labor practice strikes, safety strikes, sympathy strikes and jurisdictional strikes whether or not the underlying dispute is subject to arbitration. Any such actions by the Council, or Unions, or their members, agents, representatives or the employees they represent shall constitute a violation of this Agreement. The Council and the Union shall take all steps necessary to obtain compliance with this Article and neither should be held liable for conduct for which it is not responsible. Section 6.2 Employee Violations: The Contractor may discharge any employee violating Section 6.1 above and any such employee will not be eligible for rehire under this Agreement. Section 6.3 Standing to Enforce: The City, the Community Workforce Coordinator, or any Contractor affected by an alleged violation of Section 6.1 shall have standing and the right to enforce the obligations established therein. Section 6.4 Expiration of MLAs: If the MLA, or any local, regional, and other applicable collective bargaining agreements expire during the term of the Project, the Union(s) agree that there shall be no work disruption of any kind as described in Section 6.1 above as a result of the expiration of any such agreement(s) having application on this Project and/or failure of the Packet Pg. 428 Item 14 City of San Luis Obispo 18 Community Workforce Agreement involved Parties to that agreement to reach a new contract. Terms and conditions of employment established and set at the time of bid shall remain established and set. Otherwise to the extent that such agreement does expire and the Parties to that agreement have failed to reach concurrence on a new contract, work will continue on the Project on one of the following two (2) options, both of which will be offered by the Unions involved to the Contractors affected: 6.4.1 Each of the Unions with a contract expiring must offer to continue working on the Project under interim agreements that retain all the terms of the expiring contract, except that the Unions involved in such expiring contract may each propose wage rates and employer contribution rates to employee benefit funds under the prior contract different from what those wage rates and employer contributions rates were under the expiring contracts. The terms of the Union’s interim agreement offered to Contractors will be no less favorable than the terms offered by the Union to any other employer or group of employers covering the same type of construction work in San Luis Obispo County. 6.4.2 Each of the Unions with a contract expiring must offer to continue working on the Project under all the terms of the expiring contract, including the wage rates and employer contribution rates to the employee benefit funds, if the Contractor affected by that expiring contract agrees to the following retroactive provisions: if a new MLA, local, regional or other applicable labor agreement for the industry having application at the Project is ratified and signed during the term of this Agreement and if such new labor agreement provides for retroactive wage increases, then each affected Contractor shall pay to its employees who performed work covered by this Agreement at the Project during the hiatus between the effective dates of such expired and new labor agreements, an amount equal to any such retroactive wage increase established by such new labor agreement, retroactive to whatever date is provided by the new labor agreement for such increase to go into effect, for each employee’s hours worked on the Project during the retroactive period. All Parties agree that such affected Contractors shall be solely responsible for any retroactive payment to its employees. 6.4.3 Some Contractors may elect to continue to work on the Project under the terms of the interim agreement option offered under paragraph 6.4.1, above and other Contractors may elect to continue to work on the Project under the retroactivity option offered under paragraph 6.4.2, above. To decide between the two options, Contractors will be given one week after the particular labor agreement has expired or one week after the Union has personally delivered to the Contractors in writing its specific offer of terms of the interim agreement pursuant to paragraph (a) above, whichever is the later date. If the Contractor fails to timely select one of the two options, the Contractor shall be deemed to have selected the retroactivity option offered under paragraph 6.4.2, above. Section 6.5 No Lockouts: Contractors shall not cause, incite, encourage, condone or participate in any lock-out of employees with respect to Project Work during the term of this Agreement. The term “lock-out” refers only to a Contractor’s exclusion of employees in order to secure collective bargaining advantage, and does not refer to the discharge, termination or layoff of employees by the Contractor for any reason in the exercise of rights pursuant to any provision of this Agreement, or any other agreement, nor does “lock-out” include the City’s decision to stop, suspend or discontinue any Project Work or any portion thereof for any reason. Packet Pg. 429 Item 14 City of San Luis Obispo 19 Community Workforce Agreement Section 6.6 Best Efforts to End Violations: 6.6.1 If a Contractor contends that there is any violation of this Article or Section 7.3, it shall notify, in writing, the Executive Secretary of the Council, the Senior Executive of the involved Union(s) and the Community Workforce Coordinator. The Executive Secretary and the leadership of the involved Union(s) will immediately instruct, order and use their best efforts to cause the cessation of any violation of the relevant Article. 6.6.2 If the Union contends that any Contractor has violated this Article, it will notify the Contractor and the Community Workforce Coordinator, setting forth the facts which the Union contends violate the Agreement, at least twenty-four (24) hours prior to invoking the procedures of Section 6.8. The Community Workforce Coordinator shall promptly order the involved Contractor(s) to cease any violation of the Article. Section 6.7 Withholding of services for failure to pay wages and fringe benefits: Notwithstanding any provision of this Agreement to the contrary, it shall not be a violation of this Agreement for any Union to withhold the services of its members (but not the right to picket) from a particular Contractor who fails to timely pay its weekly payroll; or fails to make timely payments to the Union’s Joint Labor/Management Trust Funds in accordance with the provisions of the applicable Master Labor Agreements. Prior to withholding its members’ services for the Contractor’s failure to make timely payments to the Union’s Joint Labor/Management Trust Funds, the Union shall give at least ten (10) days (unless a lesser period of time is provided in the Union’s MLA, but in no event less than seventy-two (72) hours) written notice of such failure to pay by registered or certified mail, return receipt requested, and by facsimile transmission to the involved Contractor and the City. Union will meet within the ten (10) day period to attempt to resolve the dispute. 6.7.1 Upon the payment of the delinquent Contractor of all monies due and then owing for wages and/or fringe benefit contributions, the Union shall direct its members to return to work and the Contractor shall return all such members back to work. Section 6.8 Expedited Enforcement Procedure: Any party, including the City, which is an intended beneficiary of this Article, or the Community Workforce Coordinator, may institute the following procedures, in lieu of or in addition to any other action at law or equity, when a breach of Section 6.1, 6.5 or Section 7.3 is alleged. 6.8.1 The party invoking this procedure shall notify Lou Zigman, or, if Mr. Zigman is unavailable, Sara Adler, who have been selected by the negotiating Parties, and whom the Parties agree shall be the permanent arbitrator and alternate arbitrator under this procedure. If the permanent arbitrator is unavailable at any time, the party invoking this procedure shall notify Sara Adler. Notice to the arbitrator shall be by the most expeditious means available, with notices to the Parties alleged to be in violation, and to the Council if it is a Union alleged to be in violation. For purposes of this Article, written notice may be given by telegram, facsimile, hand- delivery or overnight mail and will be deemed effective upon receipt. Packet Pg. 430 Item 14 City of San Luis Obispo 20 Community Workforce Agreement 6.8.2 Upon receipt of said notice, the arbitrator named above, or his/her alternate shall sit and hold a hearing within twenty-four (24) hours if it is contended that the violation still exists, but not sooner than twenty-four (24) hours after notice has been dispatched to the Council of the involved Union(s) and/or Contractor. 6.8.3 The arbitrator shall notify the Parties of the place and time chosen for this hearing. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator's discretion, shall not exceed twenty-four (24) hours unless otherwise agreed upon by all Parties. A failure of any Party or Parties to attend said hearings shall not delay the hearing of evidence or the issuance of any award by the arbitrator. 6.8.4 The sole issue at the hearing shall be whether or not a violation of Sections 6.1, 6.5 or Section 7.3 has in fact occurred. The arbitrator shall have no authority to consider any matter in justification, explanation or mitigation of such violation or to award damages. The Award shall be issued in writing within three (3) hours after the close of the hearing and may be issued without an opinion. If any party desires a written opinion, one shall be issued within fifteen (15) days, but its issuance shall not delay compliance with, or enforcement of, the Award. The arbitrator may order cessation of the violation of the Article and other appropriate relief, and such Award, upon issuance, shall be served on all Parties by hand or registered mail. 6.8.5 Such Award shall be final and binding on all Parties and may be enforced by any court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to herein above in the following manner. Written notice of the filing of such enforcement proceedings shall be given to the other party. In any judicial proceeding to obtain a temporary order enforcing the arbitrator's Award as issued under this Article, all Parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agreement does not waive any Party's right to participate in a hearing for a final order of enforcement. The court's order or orders enforcing the arbitrator's award shall be served on all Parties by hand or by delivery to their address as shown on this Agreement (for a Union), as shown in their business contract for work under this Agreement (for a Contractor) and to the representing Union (for an employee), by certified mail by the Party or Parties first alleging the violation. 6.8.6 Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure or which interfere with compliance hereto are hereby waived by the Parties to whom they accrue. 6.8.7 The fees and expenses of the arbitrator shall be equally divided between the party or Parties initiating this procedure and the respondent Party or Parties. 6.8.8 Liquidated Damages. If the arbitrator determines that a work stoppage, in violation of Section 6.1 has occurred, the respondent Unions(s) shall, within eight (8) hours of receipt of the award, direct all the employees they represent on the project to immediately return to work. If the craft(s) involved does not return to work by the beginning of the next regularly scheduled shift following such eight (8) hour period after receipt of the arbitrator’s award, and the respondent Union(s) have not complied with their obligation to immediately instruct, order, and use their best efforts to cause a cessation of the violation and return of the employees they represent Packet Pg. 431 Item 14 City of San Luis Obispo 21 Community Workforce Agreement to work, then the respondent Union(s) shall each pay a sum as liquidated damages to the City, and each shall pay an additional sum per shift for each shift thereafter on which the craft(s) has not returned to work. Similarly, if the arbitrator determines that a lock-out, in violation of Section 6.5 has occurred, the respondent Contractor(s) shall, within eight (8) hours of receipt of the award, return all the affected employees to work on the Project, or otherwise correct the violation as found by the arbitrator. If the respondent Contractor(s) do not take such action by the beginning of the next regularly scheduled shift following the eight (8) hour period, each respondent Contractor shall pay a sum as liquidated damages in equal amounts to the City and to the affected Union(s) (with union amounts to be apportioned among the affected employees and the benefit funds to which contributions are made on their behalf, as appropriate and designated by the Arbitrator) and each shall pay an additional sum per shift for each shift thereafter in which compliance by the respondent Contractor(s) has not been completed. The Arbitrator shall retain jurisdiction to determine compliance with this Section and to establish the appropriate sum of liquidated damages, which shall not be less than five thousand dollars ($5,000) per shift, nor more than twenty thousand dollars ($20,000) per shift. ARTICLE 7 WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES Section 7.1 Assignment of Work: The assignment of Project Work will be solely the responsibility of the Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the “Plan”) or any successor Plan. Section 7.2 The Plan: All jurisdictional disputes on this Project between or among the building and construction trades Unions and the Employers parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Employers and Unions parties to this Agreement. 7.2.1 If a dispute arising under this Article involves the Southwest Regional Council of Carpenters or any of its subordinate bodies, an Arbitrator shall be chosen by the procedures specified in Article V, Section 5, of the Plan from a list composed of John Kagel, Thomas Angelo, Robert Hirsch, and Thomas Pagan, and the Arbitrator’s hearing on the dispute shall be held at the offices of the applicable Building and Construction Trades Council within fourteen (14) days of the selection of the Arbitrator. All other procedures shall be as specified in the Plan. Section 7.3 No Work Disruption Over Jurisdiction: All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow-down of any nature, and the Employer’s assignment shall be adhered to until the dispute is resolved. Individuals violating this section shall be subject to immediate discharge. Section 7.4 Pre-Job Conferences: As provided in Article 14, each Employer will conduct a pre-job conference with the Council prior to commencing work. The Primary Employer and the Packet Pg. 432 Item 14 City of San Luis Obispo 22 Community Workforce Agreement Owner will be advised in advance of all such conferences and may participate if they wish. Pre- job conferences for different Employers may be held together. Section 7.5 Resolution of Jurisdictional Disputes: If any actual or threatened strike, sympathy strike, work stoppage, slow down, picketing, hand-billing or otherwise advising the public that a labor dispute exists, or interference with the progress of Project Work by reason of a jurisdictional dispute or disputes occurs, the Parties shall exhaust the expedited procedures set forth in the Plan, if such procedures are in the plan then currently in effect, or otherwise as in Article 6 above. ARTICLE 8 MANAGEMENT RIGHTS Section 8.1 Contractor and City Rights: The City and the Contractor retains the full and exclusive authority for the management of its operations, as set forth in this Article, unless expressly limited or required by the other Articles of this Agreement or an MLA. In addition to the following and other rights of the Contractors enumerated in this Agreement, the Contractors expressly reserve their management rights and all the rights conferred upon them by law. The Contractor’s rights include, but are not limited to, the right to: 8.1.1 Plan, direct and control operations of all work; 8.1.2 Hire, promote, transfer and layoff their own employees, respectively, as deemed appropriate to satisfy work and/or skill requirements; 8.1.3 Promulgate and require all employees to observe reasonable job rules and security and safety regulations; 8.1.4 Discharge, suspend or discipline their own employees for just cause; 8.1.5 Utilize, in accordance with City approval, any work methods, procedures or techniques, and select, use and install any types or kinds of materials, apparatus or equipment, regardless of source of manufacture or construction; assign and schedule work at their discretion; and 8.1.6 Assign overtime, determine when it will be worked, and the number and identity of employees engaged in such work, subject to such provisions in the applicable MLA(s) requiring such assignments be equalized or otherwise made in a nondiscriminatory manner. Section 8.2 Specific City Rights: In addition to the following and other rights of the City enumerated in this Agreement, the City expressly reserves its management rights and all the rights conferred on it by law. The City’s rights (and those of the Community Workforce Coordinator on its behalf) include but are not limited to the right to: 8.2.1 Inspect any construction site or facility to ensure that the Contractor follows the applicable safety and other work requirements; Packet Pg. 433 Item 14 City of San Luis Obispo 23 Community Workforce Agreement 8.2.2 Require Contractors to establish a different work week or shift schedule for particular employees as required to meet the operational needs of the Project Work at particular locations; 8.2.3 At its sole option, terminate, delay and/or suspend any and all portions of the Project Work at any time; prohibit some or all work on certain days or during certain hours of the day to accommodate the ongoing operations of the City’s treatment facilities and/or to mitigate the effect of ongoing Project Work on businesses and residents in the neighborhood of the Project site; and/or require such other operational or schedule changes it deems necessary, in its sole judgment, to effectively maintain its primary mission and remain a good neighbor to those in the area of its facilities. (In order to permit the Contractors and Unions to make appropriate scheduling plans, the City will provide the Community Workforce Coordinator, and the affected Contractor(s) and Union(s) with reasonable notice of any changes it requires pursuant to this section; provided, however, that if notice is not provided in time to advise employees not to report for work, show-up pay shall be due pursuant to the provision of Article 6, Section 6.6); 8.2.4 Approve any work methods, procedures and techniques used by Contractors whether or not these methods, procedures or techniques are part of industry practices or customs, provided that nothing herein shall require such approval or extend any liability related to work performed by Contractors to the City; and 8.2.5 Investigate and process complaints, through its Community Workforce Coordinator, in the matter set forth in Articles 6 and 9. Section 8.3 Use of Materials: There should be no limitations or restriction by Union upon a Contractor’s choice of materials or design, nor, regardless of source or location, upon the full use and utilization, of equipment, machinery, packaging, precast, prefabricated, prefinished, or preassembled materials, tools or other labor saving devices, subject to the application of the State Public Contract and Labor Codes as required by law in reference to offsite construction. Generally, the onsite installation or application of such items shall be performed by the craft having jurisdiction over such work. The City and its Community Workforce Coordinator shall advise all Contractors of, and enforce as appropriate, the off-site application of the prevailing wage law as it affects Project Work. Section 8.4 Special Equipment, Warranties and Guaranties: 8.4.1 The Parties recognize that the Contractor will initiate from time to time the use of new technology, equipment, machinery, tools, and other labor-savings devices and methods of performing Project Work. The Union agrees that they will not restrict the implementation of such devices or work methods. The Unions will accept and will not refuse to handle, install or work with any standardized and/or catalogue: parts, assemblies, accessories, prefabricated items, preassembled items, partially assembled items, or materials whatever their source of manufacture or construction. 8.4.2 If any disagreement between the Contractor and the Unions concerning the methods of implementation or installation of any equipment, or device or item, or method of Packet Pg. 434 Item 14 City of San Luis Obispo 24 Community Workforce Agreement work, arises, or whether a particular part or pre-assembled item is a standardized or catalog part or item, the work will precede as directed by the Contractor and the Parties shall immediately consult over the matter. If the disagreement is not resolved, the affected Union(s) shall have the right to proceed through the procedures set forth in Article 9. ARTICLE 9 SETTLEMENT OF GRIEVANCES AND DISPUTES Section 9.1 Cooperation and Harmony on Site: 9.1.1 This Agreement is intended to establish and foster continued close cooperation between management and labor. The Council shall assign a representative to this Project for the purpose of assisting the Unions, and working with the Community Workforce Coordinator, together with the Contractors, to complete the construction of the Project economically, efficiency, continuously and without any interruption, delays or work stoppages. 9.1.2 The Community Workforce Coordinator, the Contractors, Unions, and employees collectively and individually, realize the importance to all Parties of maintaining continuous and uninterrupted performance Project Work, and agree to resolve disputes in accordance with the grievance provisions set forth in this Article or, as appropriate, those of Article 6 or 7. 9.1.3 The Community Workforce Coordinator shall oversee the processing of grievances under this Article and Article 6, including the scheduling and arrangements of facilities for meetings, selection of the arbitrator from the agreed-upon panel to hear the case, and any other administrative matters necessary to facilitate the timely resolution of any dispute; provided, however, it is the responsibility of the principal parties to any pending grievance to insure the time limits and deadlines are met. Section 9.2 Processing Grievances: Any questions arising out of and during the term of this Agreement involving its interpretation and application, which includes applicable provisions of the MLAs, but not jurisdictional disputes or alleged violations of Section 6.1 and 6.5 and similar provisions, shall be considered a grievance and subject to resolution under the following procedures. Step 1. Employee Grievances: When any employee subject to the provisions of this Agreement feels aggrieved by an alleged violation of this Agreement, the employee shall, through his Union business representative or, job steward, within ten (10) working days after the occurrence of the violation, give notice to the work site representative of the involved Contractor stating the provision(s) alleged to have been violated. A business representative of the Union or the job steward and the work site representative of the involved Contractor shall meet and endeavor to adjust the matter within ten (10) working days after timely notice has been given. If they fail to resolve the matter within the prescribed period, the grieving party may, within ten (10) working days thereafter, pursue Step 2 of this grievance procedure provided the grievance is reduced to writing, setting forth the relevant information, including a short description thereof, the date on which the alleged violation occurred, and the provision(s) of the Agreement alleged Packet Pg. 435 Item 14 City of San Luis Obispo 25 Community Workforce Agreement to have been violated. Grievances and disputes settled at Step 1 shall be non-precedential except as to the parties directly involved. Union or Contractor Grievances: Should the Union(s) or any Contractor have a dispute with the other Party(ies) and, if after conferring within ten (10) working days after the disputing Party knew or should have known of the facts or occurrence giving rise to the dispute, a settlement is not reached within five (5) working days, the dispute shall be reduced to writing and processed to Step 2 in the same manner as outlined in 1(a) above for the adjustment of an employee complaint. Step 2. The business manager of the involved Union or his designee, together with the site representative of the involved Contractor, and the labor relations representative of the Community Workforce Coordinator, shall meet within seven (7) working days of the referral of the dispute to this second step to arrive at a satisfactory settlement thereof. If the Parties fail to reach an agreement, the dispute may be appealed in writing in accordance with the provisions of Step 3 within seven (7) calendar days after the initial meeting at Step 2. Step 3. (a) If the grievance shall have been submitted but not resolved under Step 2, either the Union or Contractor Party may request in writing to the Community Workforce Coordinator (with copy (ies) to the other Party (ies)) within seven (7) calendar days after the initial Step 2 meeting, that the grievance be submitted to an arbitrator selected from the agreed upon list of experienced construction industry arbitrators below, on a rotational basis in the order listed. Those arbitrators are: (1) Louis Zigman; (2) Sara Adler; (3) Fredric Horowitz; (4) Edna Francis; (5) William Rule; (6) Walt Daugherty; and (7) Michael Rappaport. The decision of the arbitrator shall be final and binding on all Parties and the fee and expenses of such arbitrations shall be borne equally by the involved Contractor(s) and the involved Union(s). (b) Failure of the grieving Party to adhere to the time limits established herein shall render the grievance null and void. The time limits established herein may be extended only by written consent of the Parties involved at the particular step where the extension is agreed upon. The arbitrator shall have the authority to make decisions only on issues presented and shall not have the authority to change, amend, add to or detract from any of the provisions of this Agreement. (c) The fees and expenses incurred by the arbitrator, as well as those jointly utilized by the Parties (e.g., conference room, court reporter, etc.) in arbitration, shall be divided equally by the Parties to the arbitration, including Union(s) and Contractor(s) involved. Section 9.3 Limit on Use of Procedures: Procedures contained in this Article shall not be applicable to any alleged violation of Articles 6 or 7, with a single exception that any employee discharged for violation of Section 6.2, or Section 7.3, may resort to the procedures of this Article to determine only if he/she was, in fact, engaged in that violation. Section 9.4 Notice: The Community Workforce Coordinator (and the City, in the case of any grievance regarding the Scope of this Agreement) shall be notified by the involved Contractor of Packet Pg. 436 Item 14 City of San Luis Obispo 26 Community Workforce Agreement all actions at Steps 2 and 3, and further, the Community Workforce Coordinator shall, upon its own request, be permitted to participate fully as a party in all proceedings at such steps. ARTICLE 10 REGULATORY COMPLIANCE Section 10.1 Compliance with All Laws: The Council and all Unions, Contractors, subcontractors and their employed shall comply with all applicable federal and state laws, ordinances and regulations including, but not limited to, those relating to safety and health, employment and applications for employment. All employees shall comply with the safety regulations established by the City and/or the Contractor. Workers must promptly report any injuries or accidents as required by applicable policy and/or law. Section 10.2 Monitoring Compliance: The Parties agree that the City shall require, and that the Community Workforce Coordinator and Council shall monitor, compliance by all Contractors and subcontractors with all federal and state law regulations that, from time to time may apply to Project Work. It shall be the responsibility of both the Council and the Community Workforce Coordinator (on behalf of the City) to investigate or monitor compliance with these various laws and regulations and any suspected non-compliance observes by the Council shall be immediately reported to the Community Workforce Coordinator. The Council may recommend to the Community Workforce Coordinator and/or the City procedures to encourage and enforce compliance with these laws and regulations. Section 10.3 Prevailing Wage Compliance: The Council or Union shall refer all complaints regarding any potential prevailing wage violation to the Community Workforce Coordinator, who on its own, or with the assistance of the City’s labor compliance program, shall process, investigate and resolve such complaints, consistent with Article 5, Section 5.4. The Council or Union, as appropriate, shall be advised in a timely manner with regard to the facts and resolution, if any, of any complaint. It is understood that this Section does not restrict any individual rights as established under the State Labor Code, including the rights of an individual to file a complaint with the State Labor Commissioner or to file a grievance for such violation under the grievance procedure set forth in this Agreement. Section 10.4 Violations of Law: Based upon a finding of violation by the City of a federal and state law, and upon notice to the Contractor that it or its subcontractors are in such violation, the City, in the absence of the Contractor or subcontractor remedying such violation, shall take such action as it is permitted by law or contract to encourage that Contractor to come into compliance, including, but not limited to, assessing fines and penalties, and/or removing the offending Contractor from Project Work. Additionally, in accordance with the Agreement between the City and the Contractor, the City may cause the Contractor to remove from Project Work any subcontractor who is in violation of state or federal law. Packet Pg. 437 Item 14 City of San Luis Obispo 27 Community Workforce Agreement ARTICLE 11 SAFETY AND PROTECTION OF PERSON AND PROPERTY Section 11.1 Safety: 11.1.1 It shall be the responsibility of each Contractor to ensure safe working conditions and employee compliance with any safety rules contained herein or established by the City and/or the Contractor. It is understood that employees have an individual obligation to use diligent care to perform their work in a safe manner and to protect themselves and the property of the Contractor and the City. 11.1.2 Employees shall be bound by the safety, security, and visitor rules established by the Contractor and/or the City. These rules will be published and posted. An employee’s failure to satisfy his/her obligations under this section will subject him/her to discipline, up to and including discharge. 11.1.3 The Parties to this Agreement adopt the Tri Counties Building and Construction Trades Council Approved Drug and Alcohol Testing Policy, a copy of which is attached hereto as Attachment “D,” and which shall be the policy and procedure utilized under this Agreement. Section 11.2 Suspension of Work for Safety: A Contractor may suspend all or a portion of the job to protect the life and safety of employees. In such cases, employees will be compensated only for the actual time worked; provided, however, that where the Contractor requests employees to remain at the site and be available for work, the employees will be compensated for stand-by time at their basic hourly rate of pay. Section 11.3 Water and Sanitary Facilities: The Contractor shall provide adequate supplies of drinking water and sanitary facilities for all employees as required by state law or regulation. ARTICLE 12 TRAVEL AND SUBSISTENCE Travel expenses, travel time, subsistence allowances, zone rates and parking reimbursements shall be paid in accordance with the applicable MLA unless superseded by the applicable prevailing wage determination. ARTICLE 13 APPRENTICES Section 13.1 Importance of Training: The Parties recognize the need to maintain continuing support of the programs designed to develop adequate numbers of competent workers in the construction industry, the obligation to capitalize on the availability of the local work force in the area served by the City, and the opportunities to provide continuing work under the construction program. To these ends, the Parties will facilitate, encourage, and assist local residents to commence and progress in an Approved Apprenticeship Programs and/or training programs in the construction industry leading to participation in such apprenticeship programs. The City, the Packet Pg. 438 Item 14 City of San Luis Obispo 28 Community Workforce Agreement Community Workforce Coordinator, and the Council, will work cooperatively to identify, or establish and maintain, effective programs and procedures for persons interested in entering the construction industry and which will help prepare them for the formal joint labor/management apprenticeship programs maintained by the signatory Unions. Section 13.2 Use of Apprentices: 13.2.1 Apprentices used on Projects under this Agreement shall be registered in Approved Apprenticeship Programs approved by the State of California and the Federal Department of Labor, to the extent required by any Project funding source. Apprentices may comprise up to thirty percent (30%) of each craft’s work force at any time, unless the standards of the applicable joint apprenticeship committee confirmed by the Division of Apprenticeship Standards (“DAS”), establish a lower or higher maximum percentage, and where such is the case, the applicable Union should use its best efforts with it’s apprenticeship committee and, if necessary, the DAS to permit up to thirty percent (30%) apprentices on the Project. 13.2.2 The Unions agree to cooperate with the Contractor in furnishing apprentices as requested up to the maximum percentage. The apprentice ratio for each craft shall be in compliance, at a minimum, with the applicable provisions of the Labor Code relating to utilization of apprentices. The City shall encourage such utilization, and, both as to apprentices and the overall supply of experienced workers, the Community Workforce Coordinator will work with the Council to assure appropriate and maximum utilization of apprentices and the continuing availability of both apprentices and journey persons. 13.2.3 The Parties agree that apprentices will not be dispatched to Contractors working under this Agreement unless there is a journeyman working on the project where the apprentice is to be employed who is qualified to assist and oversee the apprentice’s progress through the program in which he is participating. 13.2.4 All apprentices shall work under the direct supervision of a journeyman from the trade in which the apprentice is indentured. A journeyman shall be defined as set forth in the California Code of Regulations, Title 8 [apprenticeship], Section 205, which defines a journeyman as a person who has either completed an accredited apprenticeship in his or her craft, or has completed the equivalent of an apprenticeship in length and content of work experience and all other requirements in the craft which has workers classified as journeyman in the apprenticeship occupation. Should a question arise as to a journeyman’s qualification under this subsection, the Contractor shall provide adequate proof evidencing the worker’s qualification as a journeyman to the Community Workforce Coordinator and the Council. ARTICLE 14 PRE-JOB CONFERENCES Each Prime Contractor will conduct a pre-job conference with the Unions for it and all of its subcontractors not later than fourteen (14) calendar days prior to commencing work for each stage of the Project . Each Contractor conducting a pre-job shall notify the Council and all subcontractors of all tiers, who shall participate in such conferences, ten (10) days in advance of all such Packet Pg. 439 Item 14 City of San Luis Obispo 29 Community Workforce Agreement conferences. The purpose of the conference will be to, among other things, determine craft manpower needs, schedule of work for the contract and project work rules/owner rules. The Council, the Community Workforce Coordinator, and the City shall be advised in advance of all such conferences and may participate if they wish. All work assignments shall be disclosed by the Prime Contractor and all Contractors at the pre-job conference. Should there be Project Work that was not previously discussed at the pre-job conference, or additional project work be added, the contractors performing such work will conduct a separate pre-job conference for such newly included work. Any Union in disagreement with the proposed assignment shall notify the Contractor of its position in writing, with a copy to Community Workforce Coordinator, within seven (7) calendar days thereafter. Within seven (7) calendar days after the period allowed for Union notices of disagreement with the Contractor’s proposed assignments, but prior to the commencement of any work, the Contractor shall make final assignments in writing with copies to the Council and to the Community Workforce Coordinator. ARTICLE 15 LABOR/MANAGEMENT COOPERATION Section 15.1 Joint Committee: The Parties to this Agreement shall establish a six (6) person Joint Administrative Committee (JAC). This JAC shall be comprised of three (3) representatives selected by the City and three (3) representatives selected by the Council to monitor compliance with the terms and conditions of this Agreement. Each representative shall designate an alternate who shall serve in his or her absence for any purpose contemplated by this Agreement. Section 15.2 Functions of Joint Committee: The Committee shall meet on a schedule to be determined by the Committee or at the call of the joint chairs, to discuss the administration of the Agreement, the progress of the Project, general labor management problems that may arise, and any other matters consistent with this Agreement. Substantive grievances or disputes arising under Articles 6, 7 or 9 shall not be reviewed or discussed by this Committee but shall be processed pursuant to the provisions of the appropriate Article. The Community Workforce Coordinator shall be responsible for the scheduling of the meetings, the preparation of the agenda topics for the meetings, with input from the Unions the Contractors and the City. Notice of the date, time and place of meetings, shall be given to the Committee members at least three (3) business days prior to the meeting. The City should be notified of the meetings and invited to send a representative(s) to participate. The Community Workforce Coordinator shall prepare quarterly reports on apprentice utilization and the training and employment of City residents, and a schedule of Project Work and estimated number of craft workers needed. The Committee or an appropriate subcommittee, may review such reports and make any recommendations for improvement, if necessary, including increasing the availability of skilled trades, and the employment of local residents or other individuals who should be assisted with appropriate training to qualify for apprenticeship programs. ARTICLE 16 SAVINGS AND SEPARABILITY Section 16.1 Savings Clause: It is not the intention of the City, the Community Workforce Coordinator, Contractor or the Union parties to violate any laws governing the subject matter of Packet Pg. 440 Item 14 City of San Luis Obispo 30 Community Workforce Agreement this Agreement. The Parties hereto agree that in the event any provision of this Agreement is finally held or determined to be illegal or void as being in contravention of any applicable law or regulation, the remainder of the Agreement shall remain in full force and effect unless the part or parts so found to be void are wholly inseparable from the remaining portions of this Agreement. Further, the Parties agree that if and when any provision(s) of this Agreement is finally held or determined to be illegal or void by a court of competent jurisdiction, the Parties will promptly enter into negotiations concerning the substantive effect of such decision for the purposes of achieving conformity with the requirements of any applicable laws and the intent of the Parties hereto. If the legality of this Agreement is challenged and any form of injunctive relief is granted by any court, suspending temporarily or permanently the implementation of this Agreement, then the Parties agree that all Project Work that would otherwise be covered by this Agreement should be continued to be bid and constructed without application of this Agreement so that there is no delay or interference with the ongoing planning, bidding and construction of any Project Work. Section 16.2 Effect of Injunctions or Other Court Orders: The Parties recognize the right of the City to withdraw, at its absolute discretion, the utilization of the Agreement as part of any bid specification should a Court of competent jurisdiction issue any order, or any applicable statute which could result, temporarily or permanently in delay of the bidding, awarding and/or construction on the Project. Notwithstanding such an action by the City, or such court order or statutory provision, the Parties agree that the Agreement shall remain in full force and effect on covered Project Work to the maximum extent legally possible. ARTICLE 17 WAIVER A waiver of or a failure to assert any provisions of this Agreement by any or all of the Parties hereto shall not constitute a waiver of such provision for the future. Any such waiver shall not constitute a modification of the Agreement or change in the terms and conditions of the Agreement and shall not relieve, excuse or release any of the Parties from any of their rights, duties or obligations hereunder. ARTICLE 18 AMENDMENTS The provisions of this Agreement can be renegotiated, supplemented, rescinded or otherwise altered only by mutual agreement in writing, hereafter signed by the negotiating Parties hereto. ARTICLE 19 ENTIRE AGREEMENT 19.1 This Agreement represents the complete understanding of the Parties. The provisions of this Agreement, including the MLAs, which are incorporated herein by reference, shall apply to the work covered by this Agreement. Where a subject covered by the provisions of this Agreement is also covered by a MLA, the provisions of this Agreement shall prevail. Where a subject is covered by the provisions of a MLA and is not covered by this Agreement, the provisions of the MLA shall prevail. Packet Pg. 441 Item 14 City of San Luis Obispo 31 Community Workforce Agreement 19.2 The parties agree that this Agreement, including the MLAs incorporated by reference, covers all matters affecting wages, hours, and other terms and conditions of employment and that during the term of this Agreement the Parties will not be required to negotiate on any further matters affecting these or any other subject not specifically set forth in this Agreement except by mutual agreement of the Parties. 19.3 This Agreement may be executed in counterparts, such that original signatures may appear on separate pages and when bound together all necessary signatures shall constitute an original. Facsimile or PDF signature pages transmitted to other parties to this Agreement shall be deemed the equivalent to original signatures. ARTICLE 20 DURATION OF THE AGREEMENT Section 20.1 Duration: 20.1.1 This Agreement shall be effective from the date signed by all Parties and shall remain in effect until completion of all Project Work or City acceptance of phases thereof. Section 20.2 Turnover and Final Acceptance of Completed Work: 20.2.1 Construction of any phase, portion, section, or segment of Project Work shall be deemed complete when such phase, portion, section or segment has been turned over to the City by the Contractor and the City has accepted such phase, portion, section, or segment. As areas and systems of the Project are inspected and construction-tested and/or approved and accepted by the City or third parties with the approval of the City, the Agreement shall have no further force or effect on such items or areas, except when the Contractor is directed by the City to engage and repairs or modifications required by its contract(s) with the City. 20.2.2 Notice of each final acceptance received by the Contractor will be provided to the Council with the description of what phase, portion, section or segment, etc. has been accepted. Final acceptance may be subject to a “punch” list, and in such case, the Agreement will continue to apply to each such item on the list until it is completed to the satisfaction of the City and Notice of Acceptance is given by the City or its representative to the Contractor. At the request of the Union, complete information describing any “punch” list work, as well as any additional work required of a Contractor at the direction of the City pursuant to (a) above, involving otherwise turned-over and completed facilities which have been accepted by the City, will be available from the Community Workforce Coordinator. IN WITNESS whereof the Parties have caused this Continuity of Work Agreement to be executed as of the date and year above stated. Packet Pg. 442 Item 14 City of San Luis Obispo 32 Community Workforce Agreement CITY OF SAN LUIS OBISPO TRI-COUNTIES BUILDING & CONSTRUCTION TRADES COUNCIL By: ________________________________ By: ________________________________ Tony Skinner, Executive Secretary Dated: ___________________________ Dated: ___________________________ Packet Pg. 443 Item 14 TRI-COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL CRAFT UNIONS AND DISTRICT COUNCILS Asbestos Heat & Frost Insulators (Local 5) _________________________ Boilermakers (Local 92) _________________________ Bricklayers & Allied Craftworkers (Local 4) _________________________ Cement Masons (Local 600) _________________________ Electricians (Local 639) _________________________ Elevator Constructors (Local 18) _________________________ Iron Workers (Local 155) _________________________ Laborers (Local 220) _________________________ Operating Engineers (Local 12) _________________________ Operating Engineers (Local 12) _________________________ Operating Engineers (Local 12) _________________________ Painters & Allied Trades DC 36 _________________________ Pipe Trades (Local 403) _________________________ Pipe Trades (Local 345) _________________________ Pipe Trades District Council No. 16 _________________________ Pipe Trades (Sprinkler Fitters Local 669) _________________________ Plasterers (Local 200) _________________________ Roofers & Waterproofers (Local 36) _________________________ Sheet Metal Workers (Local 104) _________________________ Teamsters (Local 186) _________________________ Southwest Regional Council of Carpenters _________________________ Packet Pg. 444 Item 14 City of San Luis Obispo 34 Community Workforce Agreement ATTACHMENT A LETTER OF ASSENT To be signed by all contractors awarded work covered by the Community Workforce Agreement prior to commencing work. [Contractor’s Letterhead] Community Workforce Coordinator ------------------------------- ------------------------------- Attn: __________________ Re: City of San Luis Obispo, Water Resource Recovery Facility Project, Community Workforce Agreement - Letter of Assent Dear Sir: This is to confirm that [name of company] agrees to be party to and bound by the City of San Luis Obispo, Water Resource Recovery Facility Project, Community Workforce Agreement effective _______, 2018, as such Agreement may, from time to time, be amended by the negotiating parties or interpreted pursuant to its terms. Such obligation to be a party and bound by this Agreement shall extend to all work covered by the Agreement undertaken by this Company on the project and this Company shall require all of its contractors and subcontractors of whatever tier to be similarly bound for all work within the scope of the Agreement by signing and furnishing to you an identical Letter of Assent prior to their commencement of work. Sincerely, [Name of Construction Company] By: ________________________________ Name: ________________________________ Title: ________________________________ Contractor State License No. ________________________________ Project: _____________________________ [Copies of this letter must be submitted to the Community Workforce Coordinator and to the Council per Section 2.4.2] Packet Pg. 445 Item 14 City of San Luis Obispo 35 Community Workforce Agreement ATTACHMENT B Local Resident Zip Codes (Tier 1) [City of San Luis Obispo] 93401 93403 93405 93406 93407 93408 93409 93410 (Tier 2) [Remaining zip codes in the County of San Luis Obispo] 93252 93430 93445 93454 93402 93432 93446 93461 93420 93433 93449 93465 93422 93435 93451 93426 93442 93452 93428 93444 93453 (Tier 3) [All zip codes in the Santa Barbara and Monterey counties] 93032 93252 93450 93930 93013 93254 93901 93932 93067 93427 93905 93933 93101 93429 93906 93940 93103 93434 93907 93943 93105 93436 93908 93944 93106 93437 93920 93950 93108 93440 93923 93953 93109 93441 93924 93955 93110 93455 93925 93960 93111 93458 93926 93962 93117 93460 93927 95004 95012 95039 95076 93463 (Tier 4) (All zip codes in Ventura County) Packet Pg. 446 Item 14 City of San Luis Obispo 36 Community Workforce Agreement ATTACHMENT C CITY OF SAN LUIS OBISPO WATER RESOURCE RECOVERY FACILITY PROJECT CRAFT REQUEST FORM TO THE CONTRACTOR: Please complete and fax or email this form to the applicable union to request craft workers that fulfill the hiring requirements for this project. After faxing or emailing your request, please call the Union to verify receipt and substantiate their capacity to furnish workers as specified below. Please print your Fax Transmission Verification Reports or email and keep copies for your records. The City of San Luis Obispo, Water Resource Recovery Facility Project, Community Workforce Agreement establishes a goal that 30% of all of the construction labor hours worked on the Project shall be from qualified workers residing, as well as “Veterans,” regardless of where they reside: First, Area Residents residing in those first- tier zip codes which cover the City of San Luis Obispo, as reflected on the attached list of zip codes, second, within San Luis Obispo County, third, within Santa Barbara and Monterey counties, fourth, within Ventura County. For Dispatch purposes, employees residing within any of these four (4) areas, as well as Veterans, regardless of where they reside, shall be referred to as Local Residents. TO THE UNION: Please complete the “Union Use Only” section on the next page and fax this form back to the requesting Contractor. Be sure to retain a copy of this form for your records. CONTRACTOR USE ONLY To: Union Local # Fax# ( ) Date: Cc: Community Workforce Coordinator From: Company: Issued By: Contact Phone: ( ) Contact Fax: ( ) PLEASE PROVIDE ME WITH THE FOLLOWING UNION CRAFT WORKERS. Craft Classification (i.e., plumber, painter, etc.) Journeyman or Apprentice Local Resident or General Dispatch Number of workers needed Report Date Report Time TOTAL WORKERS REQUESTED = ______________ Please have worker(s) report to the following work address indicated below: Project Name: _______________________ Site: _____________________ Address: ________________________ Report to: _______________________ On-site Tel: __________________ On-site Fax: ___________________ Comment or Special Instructions: ________________________________________________________________ Packet Pg. 447 Item 14 City of San Luis Obispo 37 Community Workforce Agreement UNION USE ONLY WORKER REFERRED Date dispatch request received: Dispatch received by: Classification of worker requested: Classification of worker dispatched: Name: Date worker was dispatched: Is the worker referred a: (check all that apply) JOURNEYMAN Yes _____ No _____ APPRENTICE Yes _____ No _____ LOCAL AREA RESIDENT Yes _____ No _____ GENERAL DISPATCH FROM OUT OF WORK LIST Yes _____ No _____ [This form is not intended to replace a Union’s Dispatch or Referral Form normally given to the employee when being dispatched to the jobsite.] Packet Pg. 448 Item 14 City of San Luis Obispo 38 Community Workforce Agreement ATTACHMENT D TRI-COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL APPROVED DRUG AND ALCOHOL TESTING POLICY The Parties recognize the problems which drug and alcohol abuse have created in the construction industry and the need to develop drug and alcohol abuse prevention programs. Accordingly, the Parties agree that in order to enhance the safety of the work place and to maintain a drug and alcohol free work environment, individual Employers may require applicants or employees to undergo drug and alcohol testing. 1. It is understood that the use, possession, transfer or sale of illegal drugs, narcotics, or other unlawful substances, as well as being under the influence of alcohol and the possession or consuming alcohol is absolutely prohibited while employees are on the Employer’s job premises or while working on any jobsite in connection with work performed under the Community Workforce Agreement (“CWA”). 2. No Employer may implement a drug testing program which does not conform in all respects to the provisions of this Policy. 3. No Employer may implement drug testing at any jobsite unless written notice is given to the Union setting forth the location of the jobsite, a description of the project under construction, and the name and telephone number of the Project Supervisor. Said notice shall be addressed to the office of each Union signing the CWA. Said notice shall be delivered in person or by registered mail before the implementation of drug testing. Failure to give such notice shall make any drug testing engaged in by the Employer a violation of the CWA, and the Employer may not implement any form of drug testing at such jobsite for the following six months. 4. An employer who elects to implement drug testing pursuant to this Agreement shall require all employees on the Project to be tested. With respect to individuals who become employed on the Project subsequent to the proper implementation of this drug testing program, such test shall be administered upon the commencement of employment on the project, whether by referral from a Union Dispatch Office, transfer from another project, or another method. Individuals who were employed on the project prior to the proper implementation of this drug testing program may only be subjected to testing for the reasons set forth in Paragraph 5(f) (1) through 5(f) (3) of this Policy. Refusal to undergo such testing shall be considered sufficient grounds to deny employment on the project. 5. The following procedure shall apply to all drug testing: a. The Employer may request urine samples only. The applicant or employee shall not be observed when the urine specimen is given. An applicant or employee, at his or her sole option, shall, upon request, receive a blood test in lieu of a urine test. No employee of the Employer shall draw blood from a bargaining unit employee, touch or handle urine specimens, or Packet Pg. 449 Item 14 City of San Luis Obispo 39 Community Workforce Agreement in any way become involved in the chain of custody of urine or blood specimens. A Union Representative, subject to the approval of the individual applicant or employee, shall be permitted to accompany the applicant or employee to the collection facility to observe the collection, bottling, and sealing of the specimen. b. The testing shall be done by a laboratory approved by the National Institute on Drug Abuse (NIDA), which is chosen by the Employer and the Union. c. An initial test shall be performed using the Enzyme Multiplied Immunoassay Technique (EMZT). In the event a question or positive result arises from the initial test, a confirmation test must be utilized before action can be taken against the applicant or employee. The confirmation test will be by Gas Chromatography Mass Spectrometry (GC/MS). Cutoff levels for both the initial test and confirmation test will be those established by the National Institute on Drug Abuse. Confirmed positive samples will be retained by the testing laboratory in secured long-term frozen storage for a minimum of one year. Handling and transportation of each sample must be documented through strict chain of custody procedures. d. In the event of a confirmed positive test result the applicant or employee may request, within forty-eight (48) hours, a sample of his/her specimen from the testing laboratory for purposes of a second test to be performed at a second laboratory, designated by the Union and approved by NDA. The retest must be performed within ten (10) days of the request. Chain of custody for this sample shall be maintained by the Employer between the original testing laboratory and the Union's designated laboratory. Retesting shall be performed at the applicant’s or employee’s expense. In the event of conflicting test results the Employer may require a third test. e. If, as a result of the above testing procedure, it is determined that an applicant or employee has tested positive, this shall be considered sufficient grounds to deny the applicant or employee his/her employment on the Project. f. No individual who tests negative for drugs or alcohol pursuant to the above procedure and becomes employed on the Project shall again be subjected to drug testing with the following exceptions: 1. Employees who are involved in industrial accidents resulting in damage to plant, property or equipment or injury to him/herself or others may be tested pursuant to the procedures stated hereinabove. 2. The Employer may test employees following thirty (30) days advance written notice to the employee(s) to be tested and to the applicable Union. Notice to the applicable Union shall be as set forth in Paragraph 3 above and such testing shall be pursuant to the procedures stated hereinabove. 3. The Employer may test an employee where the Employer has reasonable cause to believe that the employee is impaired from performing his/her job. Reasonable cause shall be defined as exhibiting aberrant or unusual behavior, the type of which Packet Pg. 450 Item 14 City of San Luis Obispo 40 Community Workforce Agreement is a recognized and accepted symptom of impairment (i.e., slurred speech, unusua1 lack of muscular coordination, etc.). Such behavior must be actually observed by at least two persons, one of whom shall be a Supervisor who has been trained to recognize the symptoms of drug abuse or impairment and the other of whom shall be the job steward. If the job steward is unavailable or there is no job steward on the project the other person shall be a member of the applicable Union’s bargaining unit. Testing shall be pursuant to the procedures stated hereinabove. Employees who are tested pursuant to the exceptions set forth in this paragraph and who test positive will be removed from the Employer's payroll. g. Applicants or employees who do not test positive shall be paid for all time lost while undergoing drug testing. Payment shall be at the applicable wage and benefit rates set forth in the applicable Union’s Master Labor Agreement. Applicants who have been dispatched from the Union and who are not put to work pending the results of a test will be paid waiting time until such time as they are put to work. It is understood that an applicant must pass the test as a condition of employment. Applicants who are put to work pending the results of a test will be considered probationary employees. 6. The employers will be allowed to conduct periodic job site drug testing on the Project under the following conditions: a. The entire jobsite must be tested, including any employee or subcontractor’s employee who worked on that project three (3) working days before or after the date of the test; b. Jobsite testing cannot commence sooner than thirty (30) days after start of the work on the Project; c. Prior to start of periodic testing, a business representative will be allowed to conduct an educational period on company time to explain periodic jobsite testing program to affected employees; d. Testing shall be conducted by a N.I.D.A. certified laboratory, pursuant to the provisions set forth in Paragraph 5 hereinabove. e. Only two periodic tests may be performed in a twelve month period. 7. It is understood that the unsafe use of prescribed medication, or where the use of prescribed medication impairs the employee's ability to perform work, is a basis for the Employer to remove the employee from the jobsite. 8. Any grievance or dispute which may arise out of the application of this Agreement shall be subject to the grievance and arbitration procedures set forth in the CWA. 9. The establishment or operation of this Policy shall not curtail any right of any employee found in any law, rule or regulation. Should any part of this Agreement be found unlawful by a court of competent jurisdiction or a public agency having jurisdiction over the Packet Pg. 451 Item 14 City of San Luis Obispo 41 Community Workforce Agreement parties, the remaining portions of the Agreement shall be unaffected and the parties shall enter negotiations to replace the affected provision. 10. Present employees, if tested positive, shall have the prerogative for rehabilitation program at the employee’s expense. When such program has been successfully completed the Employer shall not discriminate in any way against the employee. If work for which the employee is qualified exists he/she shall be reinstated. 11. The Employer agrees that results of urine and blood tests performed hereunder will be considered medical records held confidential to the extent permitted or required by law. Such records shall not be released to any persons or entities other than designated Employer representatives and the applicable Union. Such release to the applicable Union shall only be allowed upon the signing of a written release and the information contained therein shall not be used to discourage the employment of the individual applicant or employee on any subsequent occasion. 12. The Employer shall indemnify and hold the Union harmless against any and all claims, demands, suits, or liabilities that may arise out of the application of this Agreement and/or any program permitted hereunder. 13. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking such assistance. Requests from employees for such assistance shall remain confidential and shall not be revealed to other employees or management personnel without the employee's consent. Employees enrolled in substance abuse programs shall be subject to all Employer rules, regulations and job performance standards with the understanding that an employee enrolled in such a program is receiving treatment for an illness. 14. This Memorandum, of Understanding shall constitute the only Agreement in effect between the parties concerning drug and alcohol abuse, prevention and testing. Any modifications thereto must be accomplished pursuant to collective bargaining negotiations between the parties. Packet Pg. 452 Item 14 City of San Luis Obispo 42 Community Workforce Agreement DRUG ABUSE PREVENTION AND DETECTION APPENDIX A CUTOFF LEVELS DRUG SCREENING METHOD SCREENING LEVEL ** CONFIRMATION METHOD CONFIRMATION LEVEL Alcohol EMIT 0.02% CG/MS 0.02% Amphetamines EMIT 1000 ng/m* CG/MS 500 ng/ml* Barbiturates EMIT 300 ng/ml CG/MS 200 ng/ml Benzodiazepines EMIT 300 ng/ml CG/MS 300 ng/ml Cocaine EMIT 300 ng/ml* CG/MS 150 ng/ml* Methadone EMIT 300 ng/ml CG/MS 100 ng/ml Methaqualone EMIT 300 ng/ml CG/MS 300 ng/ml Opiates EMIT 2000 ng/ml* CG/MS 2000 ng/ml* PCP (Phencyclidine) EMIT 25 ng/ml* CG/MS 25 ng/ml* THC (Marijuana) EMIT 50 ng/ml* CG/MS 15 ng/ml* Propoxyphene EMIT 300 ng/ml CG/MS 100 ng/ml * SAMHSA specified threshold ** A sample reported positive contains the Indicated drug at or above the cutoff level for that drug. A negative sample either contains no drug or contains a drug below the cutoff level. EMIT - Enzyme Immunoassay CC/MS - Gas Chromatography/Mass Spectrometry Packet Pg. 453 Item 14 City of San Luis Obispo 43 Community Workforce Agreement SIDE LETTER OF AGREEMENT TESTING POLICY FOR DRUG ABUSE It is hereby agreed between the parties hereto that an Employer who has otherwise properly implemented drug testing, as set forth in the Testing Policy for Drug Abuse, shall have the right to offer an applicant or employee a "quick" drug screening test. This “quick” screen test shall consist either of the “ICUP” urine screen or similar test or an oral screen test. The applicant or employee shall have the absolute right to select either of the two “quick” screen tests, or to reject both and request a full drug test. An applicant or employee who selects one of the quick screen tests, and who passes the test, shall be put to work immediately. An applicant or employee who fails the “quick” screen test, or who rejects the quick screen tests, shall be tested pursuant to the procedures set forth in the Testing Policy for Drug Abuse. The sample used for the "quick" screen test shall be discarded immediately upon conclusion of the test. An applicant or employee shall not be deprived of any rights granted to them by the Testing Policy for Drug Abuse as a result of any occurrence related to the “quick” screen test. Packet Pg. 454 Item 14 Meeting Date: 7/10/2018 FROM: Derek Johnson, City Manager J. Christine Dietrick, City Attorney Carrie Mattingly, Utilities Director Justin Pickard, Water Systems Consulting, Inc., WRRF Project Consultant SUBJECT: WATER RESOURCE RECOVERY FACILITY (WRRF) PROJECT LABOR AGREEMENT EVALUATION RECOMMENDATION Receive a report on the potential use of a Project Labor Agreement in connection with the City’s WRRF Project and provide direction to staff whether to proceed with negotiation of an Agreement. REPORT-IN-BRIEF The purpose of this report is to review typical provisions in project labor agreements (PLAs) and evaluate the potential impacts of key provisions on the City of San Luis Obispo’s (City) Water Resource Recovery Facility Project (WRRF Project). The intent of the report is to evaluate the potential impact of a PLA on the WRRF Project from a practical perspective. The memorandum is not intended to be an exhaustive review of every provision included in PLAs or to provide an opinion on the merit of a PLA for the WRRF Project. PLAs are pre-hire collective bargaining agreements that establish standard terms and conditions that apply to a specific construction project or category of projects, typically larger and more complex projects. PLAs are typically negotiated between the project owner and the local building trades council and/or individual construction trades, although PLAs can be directly negotiated between contractors and construction trades. The agreements are negotiated prior to advertisement for bids and become part of the bid package. The general contractor and subcontractors of any tier must agree to be bound by the requirements of the agreement as part of their bid submission and they must sign on to the agreement prior to performing any work on a PLA-covered project. Key PLA provisions include the establishment of 1) uniform work conditions; 2) hiring procedures; 3) wages and benefits; 4) management rights; 5) labor dispute resolution procedures; 6) procedures to prevent work stoppages; and 7) agreement to adhere to existing Master Labor Agreements (MLAs) for the trades subject to the PLA. In addition, PLAs often include provisions to promote participation in covered projects from targeted categories of workers, including residents, apprentices, historically underutilized residents and businesses, at-risk persons, veterans, minority-owned businesses and disadvantaged business enterprises. The Council expressed interest in the potential of the PLA structure for advancing local hire and local economic development objectives. Item 13 Packet Pg. 177Packet Pg. 455 Item 14 There are competing positions as to the value, utility and cost impacts of PLAs and this report does not propose to resolve those conflicting positions. Rather, this report attempts to provide the Council with as much objective, preliminary information as possible and facilitate a public discussion of the potential benefits and impacts of a PLA specific to the WRRF Project, looking at the likely time and expense associated with negotiating and implementing an agreement at this stage of the WRRF Project planning. The Local Plumbers, Pipefitters and Refrigeration Fitters Local Union 403 provided the Council with a binder of materials in support of its request that the Council consider pursuing a PLA for the WRRF Project. Within that material are references to multiple studies both supporting and opposing the PLA model and that material is available for public review in the Council reading file. Following discussion of this report and supporting materials, staff will seek Council direction whether to pursue negotiations of a PLA for the WRRF Project. DISCUSSION The following sections detail typical provisions included in PLAs, and potential considerations for the WRRF Project regarding each provision. Work Conditions Uniform Work Conditions PLAs commonly include provisions to establish uniform work conditions across each of the construction trades providing craft labor on the covered project. Conditions typically covered include work hours, holidays, meal periods, break periods, overtime and double-time pay, shifts, and shift differential pay. For contractors that are signatory to the unions, the Master Labor Agreement with each individual trade sets forth standard work conditions. The Master Labor Agreement for each trade can include slightly different provisions related to work conditions, and a PLA can serve to standardize these conditions across all trades and simplify the management process. Many of the work conditions typically covered in PLAs are also addressed in the California Labor Code including shift lengths, meal and break periods, and overtime/double-time pay. In addition, the construction contract sets forth allowable work hours and holidays observed by the project owner. In the absence of a PLA, California Labor Code and the construction contract will establish the work conditions for the project in question. WRRF Project Considerations Standard work conditions provisions in a PLA are not anticipated to have a significant impact on the WRRF Project, as many of the provisions typically included are addressed in the California Labor Code and the construction contract documents. Hiring Procedures Union Recognition PLAs designate the trade unions and the local or regional building trades council as the exclusive source of craft labor on covered projects and the exclusive bargaining representative for craft workers. In addition, employers must recognize the jurisdiction and scope of work specific to Item 13 Packet Pg. 178Packet Pg. 456 Item 14 each trade as established in each Master Labor Agreement. Terms requiring compliance with existing Master Labor Agreements are typically incorporated into the PLA. Referral Systems PLAs require that established union referral systems be used exclusively to obtain craft labor on covered projects. If a union referral system is unable to refer workers within a defined period typically 48 hours), contractors are often allowed to hire employees from other sources. PLAs do not discriminate between union and non-union workers and referrals cannot be based on a preference for union members over non-union members; however, non-union workers must register with the union hiring hall to become eligible for assignment to a covered project Core Employees PLAs typically limit the number of employees that non-union contractors can bring to a project without utilizing the union hiring hall system. These employees are termed “core” employees, and typically include key positions such as foremen. Most agreements exclude key management employees above the general foreman level from the requirements of the agreement. Employees must meet specific requirements to be considered a core employee including being recently active on the contractor’s payroll (i.e., for 60 of the 100 working days immediately prior to the award of the contract), possessing licenses required for the performance of the project work, and having the ability to safely perform the duties and functions of the trade for which they are providing craft labor. Non-union contractors can hire core employees on a one-to-one ratio with employees referred by the union hiring hall up to a maximum number of core employees (typical limitations of 5 core employees appear common but would be a term subject to negotiation). For example, the contractor can hire a member of its core workforce first, followed by an employee referred from the union hiring hall second, then another member of its core workforce. This process continues until the maximum number of core employees specified in the PLA is reached. Core employee provisions do not apply to union signatory contractors. Union and Non-Union Contractor Comparison For union contractors and on PLA-covered projects, Master Labor Agreements clearly define the scope of work that can be performed by each individual trade, and workers are not allowed to work outside of their classification/jurisdiction. Non-union contractors on projects not covered by a PLA can allow their employees to perform a wider range of tasks. For example, a non- union employee can perform functions of multiple trades (e.g., laborer, operating engineer, cement mason), provided they are paid the appropriate prevailing wage rate for each classification while performing the work. Hiring procedures included in PLAs limit the ability of non-union contractors to utilize their core workforce on covered projects. PLAs establish the maximum number of core employees that a non-union contractor can employ on a project and require non-union contractors to use union referral systems exclusively for obtaining craft labor. While non-union workers can register with the union and become eligible to work on the project, they are subject to the hiring hall rules of each specific trade. Union hiring halls maintain out-of-work lists, and applicants are typically referred to projects based on the order in which they registered with the hiring hall (i.e., first Item 13 Packet Pg. 179Packet Pg. 457 Item 14 come, first served). It is important to note that the hiring procedures and hiring hall rules are specific to each local union. Hiring procedures in PLAs do not significantly impact union signatory contractors. Signatory contractors routinely use union referral systems to obtain craft labor and can request specific employees by name, rather than requesting workers from the out-of-work list for each trade. In addition, core employee provisions do not apply to union contractors and union contractors are able to utilize their core workforce without limitation. Exceptions can include specific requirements in Master Labor Agreements that restrict or limit participation of “traveling” union members from their home union to the local union at the project location. WRRF Project Considerations The impact of PLA hiring procedure provisions on the WRRF Project depends largely on whether the prequalified contractors eligible to bid on the Project are signatory to the individual unions. Non-union contractors will be impacted by limits placed on their ability to utilize their core workforce. Union contractors will not be significantly impacted by the hiring procedure provisions as the procedures reflect their standard work practices, except for travel restrictions imposed by local unions on union members working outside the jurisdiction of their home union. Specialty Subcontractors The PLA hiring procedures likely will impact smaller, specialty subcontractors more than the general contractor and major subcontractors. Specialty subcontractors (e.g., roofers, glaziers, tile installers, sheet metal workers, etc.) have a smaller role relative to the overall scope of the WRRF Project, provide fewer employees and less craft hours, and are more likely to be local contractors. Non-union specialty contractors with a small workforce generally rely more heavily on their core employees, and limitations on their ability to fully utilize their core workforce could disproportionately affect their ability to effectively perform their subcontracted scope of work, as compared to larger contractors. In addition, small non-union contractors may not fully understand the PLA requirements when submitting subcontract bids and may refuse to sign the required letter of assent before beginning work on a PLA-covered project. This can result in cost and schedule impacts associated with subcontractor substitutions. Careful consideration should be given to the impacts of a PLA on smaller specialty contractors if the City decides to move forward with an agreement. Negotiations with the building trades should include a discussion of potential exemptions from the typical PLA hiring provisions and core worker restrictions for small and specialty subcontractors performing limited scope on the WRRF Project. Additionally, consideration should be given to mandatory pre-bid meetings to ensure that all potential bidders and subs are aware of the PLA requirements, understand their obligations and restrictions under a PLA and have an opportunity to have pre-bid questions addressed to facilitate fully informed bids. Construction Inspection Construction inspectors, materials testers, and other personnel performing quality assurance and quality control functions may also be impacted by the hiring procedures set forth in a PLA. Construction inspectors are typically employed by a third-party construction manager through a professional services agreement with the project owner. Materials testers and specialty Item 13 Packet Pg. 180Packet Pg. 458 Item 14 inspectors (e.g., soils technicians, certified welding inspectors, reinforced concrete inspectors, etc.) are typically employed as subconsultants to the construction manager. While professional services are exempt from PLAs, construction inspectors, materials testers, and personnel performing quality control and quality assurance generally are covered crafts under a PLA and are subject to the typical hiring procedure provisions discussed in the preceding paragraphs. The City is currently in the process of procuring a consultant to provide construction management and inspection services for the WRRF Project. The City’s evaluation of construction management firms will be partially based on the qualifications of the proposed inspection staff. Construction inspectors must have experience providing quality assurance for complex civil, structural, and mechanical treatment facility projects like the WRRF Project. As providers of professional services, most construction management firms are not signatory to construction unions and non-union firms will be subject to standard PLA hiring procedures, including core worker provisions. It is anticipated that five to six inspectors will be employed on the WRRF Project through the course of construction, and the City’s construction manager could be required to obtain a portion of its inspection staff through the union hiring system. The core worker provisions in a PLA will impact the construction manager’s ability to utilize its inspection staff on the WRRF Project. Should the City elect to move forward with a PLA, negotiations with the building trades should include a discussion of potential exemption from the typical PLA hiring provisions and core worker restrictions for project staff performing quality assurance work, including construction inspectors, specialty inspectors, and materials testers. In addition, the construction management services contract is tentatively scheduled to be executed in September 2018. If the City decides to enter into a PLA with the building trades, the agreement will likely not be finalized before the construction manager is procured and the construction management services contract will need to be renegotiated to reflect the terms of the PLA. Depending on the length and complexity of negotiations, this could impact anticipated contracting timelines. Wages and Benefits Wages Wages for craft workers on public works projects are paid in accordance with applicable state and federal prevailing wage rates. PLAs do not supersede applicable prevailing wage rates and wages paid to craft workers are the same for PLA and non-PLA projects. Benefits The California Department of Industrial Relations (DIR) establishes basic hourly rates and fringe benefit amounts that must be provided to the employee by the employer. Fringe benefits include health and welfare, pension, vacation/holiday, training, and “other” benefits. “Other” benefits include contributions to management relations boards, industry advancement funds, and other miscellaneous initiatives specific to each trade. Non-union contractors must provide benefits of equivalent value as the fringe benefit amounts established by the DIR or pay fringe benefits directly to their employees in cash. Training benefits must be paid directly to a State-approved apprenticeship program and are not paid directly to the employee as cash. Item 13 Packet Pg. 181Packet Pg. 459 Item 14 Union contractors provide fringe benefit payments on behalf of their employees directly to union trusts, who in turn provide benefits to their members. As with non-union contractors, training benefits must be paid directly to a State-approved apprenticeship program and are not paid directly to the union trust fund. Union and Non-Union Contractor Comparison On PLA-covered projects, all contractors, regardless of union affiliation, must pay fringe benefit contributions directly to the union trust fund for each employee for the duration of the project. Union contractors are not affected by this requirement as it reflects their normal business practice and is in alignment with the Master Labor Agreements between the construction trades and union employers. The extent to which payment of fringe benefits to union trusts affects non-union contractors depends largely on the benefits employers offer to their employees. If non-union contractors provide retirement benefits such as 401k plans or health insurance, these benefits would no longer be provided through the employer and would be provided through the union trust. For non-union contractors that pay fringe benefit contributions directly to employees as cash, the contractors would simply begin making these payments to the union trust on the employees’ behalf. Information published by the United States Department of Labor Bureau of Labor Statistics indicates that union workers have greater participation rates in medical benefit plans than non- union workers, 79% versus 46%, respectively. In addition, union workers have greater participation rates in retirement plans than non-union workers, 82% versus 47%, respectively United States Department of Labor Bureau of Labor Statistics, 2017). WRRF Project Considerations Union members must work a minimum number of hours each year to become vested in union pension programs. Non-union workers for whom fringe benefits are paid to the union trust by their employer during the WRRF Project might not work sufficient hours to become vested and may not ultimately realize any benefit from the trust fund contributions made on their behalf. This issue may be more pronounced for non-union specialty subcontractor employees performing limited scope on the WRRF Project (e.g., roofers, glaziers, tile installers, etc.). These employees may not work sufficient hours to become vested in union trust funds because they will be performing a discrete scope of work that will be completed in a short period of time on the WRRF Project. For non-union workers performing limited scope on the WRRF Project for a limited period, employers may elect to continue providing their standard retirement and health benefits while also providing fringe benefit payments directly to the union trust. Provision of benefit payments to both the union trust and directly to the employee can result in increased costs to the employer. Item 13 Packet Pg. 182Packet Pg. 460 Item 14 If the City decides to consider a PLA for the WRRF Project, negotiations with the building trades should include a discussion of potential exemptions from the required union trust fund benefit payments for small contractors performing limited scope on the WRRF Project. Management Rights PLAs include provisions detailing the rights maintained by management under the agreement. PLAs typically give management exclusive rights to plan and direct the work; hire, layoff, and promote employees; determine the number of employees required to prosecute the work; determine means and methods of construction; select craft foremen; and assign and schedule the work. The intent of these provisions is to preserve the ability of management to perform key duties that are critical to the successful performance of work under the covered project. WRRF Project Considerations Management rights provisions are not anticipated to impact the WRRF Project. These provisions are simply intended to clearly express to signatories that contractors retain the right to manage the labor force on a covered project. Work Stoppages PLAs include provisions expressly prohibiting strikes, picketing, work stoppages, slowdowns, and lockouts to ensure the continued performance of work and to prevent schedule delays on covered projects, with limited exceptions. When employers and employees are unable to agree on the terms and conditions of employment, employees may implement work stoppages such as strikes, or slowdowns and employers can implement lockouts. Work stoppages are used to compel either the employer or the employees to agree to the terms and conditions of employment in dispute. Some PLAs allow unions to withhold craft labor in the event a contractor is delinquent in payment of its weekly payroll or payments to the union trust. Work stoppages can significantly impact a construction project as they interrupt the availability of craft labor and delay performance of the work. Union employees are prevented from striking on the basis of economic conditions when bound by an active collective bargaining agreement and can only strike after a good faith effort has been made at collective bargaining. Union employees are not constrained in their ability to strike on the basis of unfair labor practices when certain conditions are met. It is beyond the scope of this report to detail the circumstances and laws surrounding employers’ and employees’ ability to implement work stoppages. WRRF Project Considerations The construction trades in California have a long history of successful collective bargaining with the construction industry. A review of work stoppage data compiled by the United States Department of Labor Bureau of Labor Statistics did not identify any work stoppages by the construction trades in California involving 1,000 or more workers over the last ten years (United States Department of Labor Bureau of Labor Statistics, 2018). Work stoppages resulting from a lapse in the collective bargaining agreements between the construction trades and the construction industry do not present a significant risk to the WRRF Project. Previous public works projects constructed by the City have been picketed by the construction trades, and in isolated incidents, workers have refused to cross picket lines. In the event of a picket at the WRRF Project, union workers might refuse to cross picket lines, impacting Item 13 Packet Pg. 183Packet Pg. 461 Item 14 performance of the work. A PLA would expressly prohibit strikes, picketing, and work stoppages and would mitigate this concern. It is recommended that additional analysis be performed to better understand the membership rules of each trade regarding the ability of union members to cross picket lines. This analysis would help quantify the risk of a work slowdown resulting from a picket if a PLA is not in place for the WRRF Project. Dispute Resolution Dispute resolution provisions are included in PLAs to establish a uniform and timely process to resolve project issues without slowing down or stopping the work. Disputes regarding the jurisdiction of individual trades are settled in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the Plan). The Plan is a broadly recognized dispute resolution procedure established by the AFL-CIO and construction employer associations that has been in place since 1984. When a jurisdictional dispute between trades arises on a project covered by a PLA (e.g., laborer versus pipefitter scope for the installation of underground pipelines), the issue is referred to the Plan for settlement. PLAs include provisions that prohibit work slowdowns and stoppages while jurisdictional disputes are being resolved. PLAs also include provisions related to resolution of grievances and disputes not specifically related to jurisdictional issues. PLAs establish a defined, step-wise process for dispute resolution that encourages resolution of project issues on the lowest possible level. The dispute resolution process typically culminates with arbitration if not settled at a lower level, typically before an arbitrator selected from an agreed upon list of arbitrators to facilitate timely resolution. As with jurisdictional disputes, parties to a PLA cannot stop or slow down the work because of a grievance or dispute. WRRF Project Considerations It is difficult to evaluate the impacts of PLA dispute resolution provisions on the WRRF Project. Disputes on construction projects are typically resolved informally by the general contractor and subcontractor management teams or through the formal dispute resolution and claims process detailed in the contract documents on non-PLA projects. Jurisdictional issues are more likely to arise between union contractors or on PLA-covered projects where workers are not allowed to work outside of their classification, but where the scope of work for multiple trades overlaps. For example, the scope of work for both laborers and pipefitters includes installation of piping in water and wastewater treatment facilities. This overlap in scope may result in a jurisdictional dispute depending on the amount of work in question and the willingness of the trades to pursue resolution through the Plan. If a contractor signatory to the laborers union bids the WRRF Project assuming laborers will install the mechanical piping and assumes prevailing wage rates for laborers in its bid, but the piping work is later found to be within the jurisdiction of the pipefitters at pipefitter prevailing wage rates, the contractor would incur significant additional costs. Non-union contractors on projects not subject to PLA agreements would not be faced with a jurisdictional dispute and could elect to perform the work with laborers; however, the pipefitters could file a complaint with the DIR Department of Industrial Relations) that the workers were not being paid the appropriate prevailing wage rate, which would be subject to an investigation by the Division of Labor Standards Enforcement. Item 13 Packet Pg. 184Packet Pg. 462 Item 14 Targeted Worker Participation Many PLAs include provisions to increase participation in covered projects by targeted categories workers. Targeted categories typically include residents, apprentices, at-risk persons e.g., economically disadvantaged individuals as defined in the agreement or those with prior low level criminal records that can create barriers to employment), veterans, and disadvantaged business enterprises. PLAs establish goals for the percentage of total craft hours on the covered project to be performed by the targeted workers. Construction contractors can be required to retain the services of a jobs coordinator, who works with the contractor, unions, local workforce development agencies, and apprenticeship programs to help the contractor meet the participation goals for each demographic set forth in the agreement. WRRF Project Considerations Targeted worker category provisions can be effective in increasing participation in the WRRF Project by the targeted demographics and developing the local workforce. The success of targeted worker participation provisions depends on commitment to the process by all parties to the PLA through ongoing and active management. Schedule PLAs are typically negotiated between the project owner and the local or regional building trades council, who represents a group of different craft unions. Some crafts anticipated to perform work on a covered project might not be represented by the building trades council, and the PLA would need to be negotiated with each of these crafts individually. The amount of time required to negotiate a PLA varies widely and depends on the content of the agreement initially presented by the building trades as a starting point to the negotiations. Once the City has reviewed the draft agreement, it can identify the provisions that warrant additional discussion and negotiations can begin. It is estimated that the length of time required to negotiate a PLA for the WRRF Project could range from two months to one year or more. If the City is willing to accept the standard PLA agreement presented by the building trades council and detailed negotiations are not required, it will take approximately two months to work through the City Council approval process and circulate the final agreement for execution. If provisions of the standard agreement warrant additional negotiations and the City is required to negotiate with multiple trades not represented by the Building Trades Council, the process could take up to one year or more. If the City elects to move forward with a PLA, the agreement must be in place prior to issuing the bid advertisement for the WRRF Project, which is tentatively scheduled to be issued in December 2018. The PLA must be included in the contract documents to inform prospective bidders and subcontractors of their responsibility to comply with the terms and conditions of the agreement. Implementing a PLA after contract award and start of construction would be difficult and likely disrupt the WRRF Project. One of the key drivers of the WRRF project is the Time Schedule Order (TSO) that requires the City to be in compliance with nutrients and disinfection by-products by the fall of 2019. Delays have already resulted in the City being unable to meet the disinfection requirements. The City is in discussions with the Central Coast Water Board (CCWB) on possible regulatory pathways to Item 13 Packet Pg. 185Packet Pg. 463 Item 14 reduce or eliminate fines for the TSO, but this issue has not been resolved. Additional delays may result in added fines and enforcement actions. The present construction climate throughout California has been volatile with projects recently coming in over budget. Additional delays may result in escalation of construction costs and the need to retain supporting professional services for the project. Cost Impacts of a PLA on construction bids are difficult to quantify and are beyond the scope of this report to assess comprehensively. Proponents of PLAs assert that these agreements save money by making overall labor reliability and project cost management more predictable, while opponents argue that PLAs increase project costs due to labor agreement compliance administration and union/fringe benefits contributions requirements. Information regarding the arguments on both sides of this issue is readily available through previously published articles and research. The anecdotal feedback staff received from public entity colleagues who have completed projects subject to PLAs is that the bids received on their PLA projects did not seem significantly out of scale in comparison to non-PLA projects of a similar size; however, the consistent feedback was that it really isn’t possible to know what the cost impacts on a project might have been absent a parallel bid process, with one including the PLA requirement and the other not. This section will focus on the costs that are more readily quantifiable including costs to support contract negotiations, costs to incorporate the PLA into the construction documents, and costs to administer the PLA through construction. PLA Negotiation Negotiation of the PLA will require participation from the City’s Utilities Department, the City Attorney’s office, outside legal counsel, and the WRRF Project Program Management Team. Costs to support PLA negotiations will depend on the extent and duration of the negotiations and can vary widely. Contract Document Development The construction contract documents will need to reflect the requirements of the PLA so prospective bidders and subcontractors will be aware of their responsibilities regarding the agreement. Language is typically included in the bid advertisement, bid form, agreement, and the front-end documents to detail PLA requirements. In addition, the complete PLA is included in the contract documents as part of the front-end documents or as an appendix. It is recommended that a specification be developed to detail the targeted worker participation requirements, as the procedures for meeting participation goals and reporting requirements are typically not explained in detail in the PLA. The targeted worker specification will increase the likelihood of meeting the participation goals set forth, increase transparency in the process, and facilitate accountability of all parties to the agreement. Modification of the construction contract documents to reflect the PLA will require participation from the City’s Utilities Department, the City Attorney’s office, outside legal counsel, the design engineer, and the WRRF Project Program Management Team. PLA Administration PLAs require that the project owner designate a Project Labor Coordinator to act as the owner’s Item 13 Packet Pg. 186Packet Pg. 464 Item 14 agent and to facilitate implementation and compliance with the PLA. The Project Labor Coordinator can be a member of the owner’s staff, but an outside contractor with specific experience administering PLAs is typically used. In many cases, the Project Labor Coordinator can also function as the labor compliance program administrator, which will be required on the WRRF Project to satisfy the requirements of outside funding sources. It is assumed the City will hire an outside contractor to serve as the Project Labor Coordinator if a PLA is negotiated. PLAs include provisions for the establishment of a Joint Administrative Committee (JAC, Committee) comprised of representatives from the owner and representatives from the building trades. The JAC meets regularly to discuss issues associated with the PLA including project issues, safety concerns, contractor relations, and disputes. The frequency of the JAC meetings is left to the discretion of the Committee, but meetings are typically held on a quarterly basis. It is anticipated that the City’s representatives on the JAC will include City Utilities Department staff and representatives from the WRRF Project Program Management Team. The City can require the construction contractor to retain the services of a Jobs Coordinator to assist the contractor in meeting its obligations for targeted worker participation. The Jobs Coordinator coordinates with the construction trades, apprenticeship programs, and local workforce development agencies to identify potential workers that meet the criteria necessary to qualify as a targeted worker for employment on the covered project. The Jobs Coordinator assists the contractor in the preparation of reports including targeted worker hiring status reports and manpower utilization plans. It is anticipated that the contractor will retain the services of an outside consultant to serve as its Jobs Coordinator. Table 1 below details the estimated costs for PLA implementation and administration for the WRRF Project. Table 1.PLA Implementation and Administration Cost Estimate RESOURCE LowHighLowHighLowHigh Utilities Department 2,181$3,444$ 574$ 574$2,985$4,362$ City Attorney 2,387$6,510$ 651$ 651$ 217$ 434$ Outside Counsel 20,400$51,600$7,800$12,600$1,200$2,400$ Design Engineer $8,904$11,130$ Program Management 9,760$20,496$4,880$7,320$33,672$51,728$ Project Labor Coordinator $119,660$176,390$ Jobs Coordinator $79,000$ 100,500$ SUBTOTAL 34,728$82,050$22,809$32,275$236,734$335,814$ PLA Negotiation Contract Document Development PLA Administration TASK The total cost for PLA implementation and administration is estimated to cost between $294,271 and $450,139. The cost estimate assumes that the Project Labor Coordinator will also serve as the administrator of the WRRF Project labor compliance program. Fifty percent of the total cost of the Project Labor Coordinator has been assigned to PLA administration and the remaining fifty percent of the cost has been assigned to labor compliance. Consequently, the total cost of labor compliance and PLA administration is estimated to range between approximately $259,543 Item 13 Packet Pg. 187Packet Pg. 465 Item 14 and $368,069. If the City does not move forward with a PLA, it will still need to implement a labor compliance program to satisfy outside funding requirements at a cost of approximately 120,000 to $177,000. Alternative Local Hire Approaches If the Council’s primary objective in pursuing a PLA is advancing local hire and economic development objectives, there are other alternatives that can be considered and implemented via contractual clauses in the bid documents. A good example of such provisions can be found in the Alameda County General Services Agency contract for the Cherryland Community Center, which included an “Enhanced Construction Outreach Program” that set goals for participation and required the contractor to demonstrate enhanced efforts to engage small and local business enterprises and other, historically disadvantaged groups, to perform project work (see https://www.acgov.org/gsa/purchasing/bidContent_ftp/rfpDocs/1856_0_002219ECOP.pdf ). A paper done for the League of California Cities has also been included in the Council reading file and provides a detailed overview of the legal parameters and practical landscape around local hire and purchase provisions, highlighting what is and is not legally permissible regarding local hire preferences outside the PLA context. An effective program would need to incorporate compliance documentation and monitoring provisions, which could also be incorporated into the bid documents, so that bidders could factor any costs associated with such provisions into their bid packages and progress toward objectives could be tracked. The development of the contractual provisions would be done by project staff and consultants and would not require negotiations with third parties or third-party compliance monitoring. CONCURRENCES The purpose of a Study Session is for informal discussions between staff, advisory bodies, consultants, the public, and the City Council regarding specific programs, projects or policies. Council may provide direction, but no formal action to approve the inclusion of a PLA into the bid package for the WRRF project will be taken during a Study Session. Study Sessions may be conducted in a variety of formats, including Public Workshops. Should Council direct staff to move forward with negotiation of a PLA program, all Departments would be engaged in the development and review of any program, which would be subject to final Council approval. ENVIRONMENTAL REVIEW There is no project subject to environmental review associated with the discussion and possible negotiation of a PLA. Nothing related to the negotiation of a PLA affects otherwise applicable environmental review of the WRRF project, which is in compliance with all applicable requirements. Item 13 Packet Pg. 188Packet Pg. 466 Item 14 FISCAL IMPACT The likely fiscal impact of the inclusion of a PLA for the WRRF Project is not precisely quantifiable, but preliminary anticipated cost impacts have been included in the cost section above. ALTERNATIVES 1. Direct staff to proceed with the negotiation of a PLA for inclusion with the bid package for the WRRF, including local hiring preference components. 2. Direct staff to include provisions for local outreach and/or incentives for local hire in contract documents, consistent with applicable legal limitations. 3.Direct staff to proceed with preparation of bid package without additional local outreach of hire provisions. Attachments: a - Council Reading File - Binder of PLA Information b - Council Reading File - League of CA Cities Paper on Local Hiring and Purchasing Preferences c - Council Reading File - Example Local Outreach Provisions for Contracts Item 13 Packet Pg. 189Packet Pg. 467 Item 14 Page intentionally left blank. Packet Pg. 190 Item13Item13 Packet Pg. 468 Item 14 7/10/2018 1 Water Resource Recovery Facility Project Project Labor Agreement City Council Study Session – July 10, 2018 Recommendation Receive a report on the potential use of a Project Labor Agreement (PLA) in connection with the City's WRRF Project and provide direction to staff whether to proceed with negotiation of an Agreement. 2 Staff Presentation - Item 13 Packet Pg. 469 Item 14 7/10/2018 2 PLA Defined 3 A Project Labor Agreement (PLA) is a pre- hire collective bargaining agreement between a project owner and the construction trades. The agreement establishes the terms and conditions of employment for the covered project. Also known as community workforce agreement, project stabilization agreement, and community partnership agreement. City Council Previous Direction April 17, 2018: Staff report on contractor prequalification for the WRRF Project was pulled from the consent calendar for discussion. Public comment regarding local hiring and a PLA was heard. City Council directed staff to explore an agreement which includes a local contracting preference or incentive component. 4 Staff Presentation - Item 13 Packet Pg. 470 Item 14 7/10/2018 3 Study Session Objective Review potential options for incorporating a local hiring preference for the WRRF Project including a PLA or other contract terms. 5 Mission Deliver a Water Resource Recovery Facility in partnership with stakeholders that provides economic, social and environmental value to our community Vision Create a community asset that is recognized as supporting health, well- being and quality of life WRRF Project Charter - 2014 6 JP2 Staff Presentation - Item 13 Packet Pg. 471 Item 14 Slide 6 JP2 Boiler plate slides from all WRRF presentations, not sure we want to spend time here. Justin Pickard, 7/5/2018 Staff Presentation - Item 13 Packet Pg. 472 Item 14 7/10/2018 4 New NPDES Permit Aging Infrastructure Maximizing Reuse Treatment Capacity One Water Project Drivers 7 Time Schedule Order (TSO) November 30, 2019 Project Update - Funding 8 1. State Revolving Fund (SRF) Low Interest Loan 2. California Office of Emergency Services CalOES) Funding 3. Strategic Growth Council Funding Staff Presentation - Item 13 Packet Pg. 473 Item 14 7/10/2018 5 Project Update - Process 9 1. Contractor Prequalification 2. Construction Manager Procurement review note: this bid process did not contemplate a PLA and would require a contract amendment if direction is given to go forward with a PLA) 3. 95% Design Submittal Next Steps 10 Identify Prequalified Contractors July 2018 Select Construction Manager September 2018 Finalize Design December 2018 Issue Bid Advertisement January 2019 Award Construction Contract April 2019 Begin Construction May 2019 Staff Presentation - Item 13 Packet Pg. 474 Item 14 7/10/2018 6 Current Schedule 11 Comparison of Provisions 12 Provision Current City Contract Modified City Contract With Local Hire Preference PLA 1. Local Hire / Targeted Worker Participation DBE Outreach, Apprentice Utilization Local, At-Risk, Veteran, Others (to be determined by City), Apprentices Local, At-Risk, Veteran, Others (to be determined by City), Apprentices 2. Hiring Procedures Subject to Contractor Discretion Union Referral, Core Worker Limits 3. Wages and Benefits Prevailing Wage Prevailing Wage, Fringes to Union Trust (all contractors) 4. Management Rights No Restrictions No Restrictions 5. Work Stoppages No Contractual Language; No Ability to Restrict Prohibited 6. Dispute Resolution Partnering, Public Contract Code, Labor Compliance The Plan” jurisdictional issues),Arbitration Staff Presentation - Item 13 Packet Pg. 475 Item 14 7/10/2018 7 Local Hire Preference Example 13 Local Hire - The Applicant shall make all efforts to employ local hire permanent residents within San Luis Obispo County, including hiring priority given to residents with County zip codes), with adequate experience and qualifications, during construction and operations to the extent possible. To this end, the Applicant shall work with the local unions and local job fairs, as well as advertise widely in the San Luis Obispo County media, to promote available positions. Within 60 days of project approval, or such later time as approved by the County, the Applicant shall create and mail a flyer to local residents within 3 miles of the project site describing the types of union and non-union jobs, as well as contact information on how to pursue employment of those jobs relating to construction of the project. From San Luis Obispo County SunPower Project: Comparison of Provisions 14 Provision Current City Contract Modified City Contract With Local Hire Preference PLA 1. Local Hire / Targeted Worker Participation DBE Outreach, Apprentice Utilization Local, At-Risk, Veteran, Others (to be determined by City), Apprentices Local, At-Risk, Veteran, Others (to be determined by City), Apprentices 2. Hiring Procedures Subject to Contractor Discretion Union Referral, Core Worker Limits 3. Wages and Benefits Prevailing Wage Prevailing Wage, Fringes to Union Trust (all contractors) 4. Management Rights No Restrictions No Restrictions 5. Work Stoppages No Contractual Language; No Ability to Restrict Prohibited 6. Dispute Resolution Partnering, Public Contract Code, Labor Compliance The Plan” jurisdictional issues),Arbitration Staff Presentation - Item 13 Packet Pg. 476 Item 14 7/10/2018 8 Current City Contract Modified City Contract With Local Hire Preference PLA Benefits No schedule impact • Local worker participation goals established No schedule impact Broad discretion for other workforce goals Local worker participation goals established Work stoppages prohibited Costs No additional cost • Local hire program administration cost Potential for increased construction cost Contract language development cost Negotiation costs PLA administration costs Potential for increased construction cost Risks Potential for reduced local worker participation Potential for work stoppage Potential for work stoppage Potential for prolonged bid review & award Potential delay to CM procurement Potential for reduced local contractor participation Potential construction schedule delay Potential Risks, Costs & Benefits 15 Negotiation Schedule 16 Staff Presentation - Item 13 Packet Pg. 477 Item 14 7/10/2018 9 Implementation Cost Estimate 17 Total LCP + PLA Cost: $294,000 - $450,000 118,000 - 173,000 176,000 - 277,000+ Questions for City Council Direction Yes No A. Is City Council Interested in Implementing a Local Hire Preference for WRRF? B. If yes, above, should Staff Pursue: 1. A Local Hire Preference Contract? 2. A PLA? C. What are City Council’s Key Objectives? 1. Local worker participation? 2. Local contractor participation? 3. Other objectives? D. If yes to B.2., what are City Council’s Key Considerations for PLA Negotiation? 1. Project schedule? 2. QA/QC exemption? 3. Core worker limitations? 4. Equivalent benefits provisions? 5. Exemption for subcontractors with limited scope? 18 Staff Presentation - Item 13 Packet Pg. 478 Item 14 7/10/2018 10 slowrrfproject.org Questions? Potential Options for Council Direction 20 1. Direct staff to proceed with the negotiation of a PLA for inclusion with the bid package for the WRRF, including local hiring preference components. a. A PLA shall be negotiated by October 12, 2018 and incorporate the PLA agreement and requirements into WRRF bid documents and return to the City Council for approval. b. If a PLA is not negotiated by October 12, 2018, direct staff to proceed with incorporating local hire preference requirements into WRRF bid documents and return to the City Council for approval. c. Direct staff to pursue contract provisions to directly or indirectly control schedule, cost, and quality. 2. Direct staff to include provisions for local outreach and/or incentives for local hire in contract documents, consistent with applicable legal limitations into WRRF bid documents using similar models for guidance, such as but not limited to the Alameda model” into bid documents. 3. Direct staff to proceed with preparation of bid package without additional local outreach of hire provisions into WRRF bid documents. 4. Direct staff to prepare a work program item to consider local hire or PLA requirements for future public works projects as part of the 2019-2021 Financial Plan. Staff Presentation - Item 13 Packet Pg. 479 Item 14 7/10/2018 11 Comparison of Provisions 21 Provision Current City Contract Modified City Contract With Local Hire Preference PLA 1. Local Hire / Targeted Worker Participation DBE Outreach, Apprentice Utilization Local, At-Risk, Veteran, Others (to be determined by City), Apprentices Local, At-Risk, Veteran, Others (to be determined by City), Apprentices 2. Hiring Procedures Subject to Contractor Discretion Union Referral, Core Worker Limits 3. Wages and Benefits Prevailing Wage Prevailing Wage, Fringes to Union Trust (all contractors) 4. Management Rights No Restrictions No Restrictions 5. Work Stoppages No Contractual Language; No Ability to Restrict Prohibited 6. Dispute Resolution Partnering, Public Contract Code, Labor Compliance The Plan” jurisdictional issues),Arbitration Staff Presentation - Item 13 Packet Pg. 480 Item 14 LOCAL BUSINESS ENTERPRISE GOOD FAITH EFFORT OUTREACH REQUIREMENTS (WRRF UPGRADE PROJECT) Specification No.: ____________ 1. POLICY. The City of San Luis Obispo’s Local Business Enterprise Outreach and Opportunities Program (LBEP) is designed to maximize participation of diverse, qualified, local contractors, consultants, and material suppliers seeking to do business on City of San Luis Obispo projects. Effective implementation of LBEP is a requirement of the project and award of a contract will be determined, in part, by the Contractor’s demonstrated good faith efforts in conducting effective outreach to local contractors. Failure to comply with the requirements herein shall render the bid as non-responsive. 2. DEFINITIONS. (a) For the purposes of this program, a Local Business Enterprise (“LBE”) means a business that is a firm or dealer with fixed offices located in and having a street address within the County of San Luis Obispo and holds a valid business license issued by either the County or a city within the County for at least six months prior to the date upon which a request for sealed bids or proposals is issued. (b) Vendor/Material Supplier: An individual, partnership, corporation or other legal entity that provides equipment, materials or supplies under an executed contract. (c) Written Communication: Any handwritten or typed correspondence delivered by e- mail, fax, or U.S. mail. (e) Outreach Forms: (1) Schedule A-1, Designation of All Subcontractors/Vendors/Service Providers (2) Schedule A-2, Subcontracting Opportunities and Contact Log 3. OUTREACH RESOURCES PROVIDED BY THE CITY. (a) Outreach materials provided by the City shall be the primary source of outreach activity. Contractors are encouraged to supplement but not replace the City provided materials. City-provided outreach materials include: (1) LBEP List: This list shall be used as the primary source for outreach activity and consists of potential subcontractors and vendors/material suppliers specific to the project. Packet Pg. 481 Item 14 a. The bidder will use the LBEP List through the following website: [need to create website based on RFQ]. b. For each category of work identified by the bidder as a subcontracting opportunity in schedule A-2, the bidder will contact each LBE listed and shall comply with the outreach requirements in Section 4 below. 4. OUTREACH ACTIVITY REQUIREMENTS AND EVIDENCE OF FULFILLMENT. (a) The bidder shall conduct pre-bid outreach activities to provide equal opportunity to all firms, including LBEs, to participate on the project. Outreach solicitations shall occur prior to submission of the bid to be considered good faith outreach efforts. The following table outlines the outreach activity requirements and evidence of fulfillment. Outreach activities identified with an “M” on the left hand column are mandatory outreach efforts; outreach activities identified with a “R” are strongly recommended, but are not mandatory: Outreach Activity Requirements Description M Identify Work that can be Subcontracted. Evidence of Fulfillment: (i) Complete and submit Schedule A-2 by entering: • A description of each item of work solicited from subcontractors; • Estimated cost of work, materials or services; • Percent of total fee; and • Whether or not a subcontractor or vendor was selected, and the reason for selection/non-selection. M Notify firms on LBEP List of subcontracting opportunities for each category listed on Schedule A-2. • Notifications must occur no fewer than 14 calendar days prior to the bid due date. One contact must be written (mail, email, or fax) and one contact must be verbal (telephone or personal meeting). • Notification shall name the City as project owner; identify work available to subcontractors; bid due date; contact information including but not limited to telephone number, e-mail and name of contact; and, all available times and locations where plans, specifications and bid documents can be viewed or copied. Evidence of Fulfillment (i) Provide copies of letter and written communication (including e-mail or fax) sent to firms on the LBEP List. If other sources were identified by the bidder, provide copies of letter and written communication (including email or fax) on those other sources. Packet Pg. 482 Item 14 (ii) Complete and submit Schedule A-2 to document contact with small contractors, including: • Name and title of each person contacted; • Fax, e-mail, and phone number of the company; • Whether the firm submitted a bid to the contractor, and • If bid submitted to contractor, reason the firm was not selected to work on the project. M The bidder negotiated in good faith with the LBEs and did not unjustifiably reject as unsatisfactory bids prepared by any LBEs as determined by City. Evidence of Fulfillment: • Copies or list of all bids and a spreadsheet listing all bids with firm name, contact person, bid items(s), bid price, LBE classification, and comments re- selection or rejection • LBE bids accepted and included in bid response R The bidder advertised, not less than ten (10) calendar days before the date the bids are opened, in one or more local daily or weekly newspapers, trade association publications, minority or trade-oriented publications, or trade journals for LBEs that are interested in participating in the project. Evidence of Fulfillment: • Copy of advertisements, certified letters, successfully completed faxes and/or other notices to LBEs with selected specific items identified. R The bidder followed up initial solicitations of interest by contacting the enterprises to determine with certainty whether the enterprises were interested in performing specific items of the project. Evidence of Fulfillment: • Copy of published advertisements, letters, successfully completed faxes, etc. with LBE name/contact information including the required information or directions on how to obtain it and the date the information was provided • Agenda, meeting notes, etc. including specific topics discussed, LBE firm names and contact persons in attendance that received information, and the location and date information was provided 5. OUTREACH RESULTS: REPORTING REQUIREMENTS. Upon completion of the outreach activity requirements and as requested by the City, bidders shall submit the following items no later than the close of two business days after the bid opening. Packet Pg. 483 Item 14 Within two (2) days of written request from the City, the two responsible bidders with the lowest responsive bids must submit to the Project Manager the following: Required Forms Included Completed Schedule A-1. Completed Schedule A-2 Letters of Intent to all Subcontractors Evidence of Contact with LBEs on the LBEP List (examples: dated e-mail, fax or letter). Evidence of Fulfillment information described in Section 4 above. 6. SUBCONTRACTOR SUBSTITUTION. (a) Written authorization from the City is required prior to substitution of any subcontractor. Subcontractors may be substituted based on the criteria below: (1) For any reason stated in California Public Contract Code Section 4107 which are incorporated herein. (2) For reasons, which the City in its judgment, deems to be in the best interests of the City, except where prohibited by law. 7. AWARD OF AGREEMENT. The Contractor’s good faith outreach efforts will be reviewed by the City’s Director of Utilities or his/her designee, prior to the award of a contract, to determine whether good faith outreach efforts requirements, if applicable, were met. 8. POST-AWARD MONITORING. (a) To ensure compliance with Contractor stated commitments, the City will monitor subcontracting activity throughout the duration of the contract. To comply with post-award monitoring the bidder shall: (1) Ensure that subcontractors and suppliers perform the type of work and the quantity of work as specified in Schedule A-1. (2) Provide the City with any additional reports, subcontracts, or other information deemed necessary for determining Contractor’s compliance with its subcontracting commitment. (3) Maintain all reports and corresponding information for a period of no less than three years after the completion of the project, or until such time a program audit has been completed on the project by the City, whichever occurs first. 9. LBEP NONCOMPLIANCE. (a) Failure by the Contractor to fulfill any of the Program guidelines constitutes breach of a contractual obligation and may result in City-imposed sanctions on the Contractor. Upon Packet Pg. 484 Item 14 determining that a Contractor is not in compliance with Program guidelines, the City may seek, without limitations, the following remedies: (1) Withholding progress payments until the City deems the Contractor to be in compliance. (2) Withholding an amount equal to the unmet portion of the amount contracted to the subcontractor, vendor, or supplier in question. Packet Pg. 485 Item 14 Page intentionally left blank. Packet Pg. 486 Item 14 Water Resource Recovery November 13, 2018Community Workforce Agreement Facility Project Recommendation 2 Project, subject to approval by all affiliates.for the Water Resource Recovery Facility The Signatory Craft Councils and Unions CIO and -Construction Trades Council, AFLCounties Building and -with The Tria final form approved by the City Attorney Community Workforce Agreement (CWA) in Authorize the City Manager to enter into a City Council Previous Direction 3 quality or schedule and do not significantly increase costs.c. Pursue contract provisions that do not adversely affect project WRRF bid documents and return to the City Council for approval. incorporating enhanced local hire outreach requirements into b. If a CWA is not negotiated by October 12, 2018, proceed with established project bidding schedule. and return to the City Council for approval, maintaining the CWA agreement and requirements into the WRRF bid documents a. CWA shall be negotiated by October 12, 2018 to incorporate the for the WRRF, including local hiring preference components. Proceed with the negotiation of a CWA for inclusion with the bid package staff at the conclusion of deliberations:publi c works projects. City Council provided the following direction to considerations associated with Community Workforce Agreements on Study session held to gain understanding of the –July 10, 2018 CWA Defined partnership agreement.stabilization agreement, or community known as project labor agreement, project Also employment for the covered project.establishes the terms and conditions of construction trades.between a project owner and the hire collective bargaining agreement -is a preCommunity Workforce Agreement (CWA) A 4 Key Objectives 5 schedule and budgetMaintain WRRF Project quality, •workers and local contractorsMaximize opportunities for local • Key Negotiating Points Benefits•Apprentices•Construction inspection•Core employees•Local worker participation•6 Implementation Cost Estimate$498,000-Total LCP and CWA Cost: $326,000 $274,000-$180,000 $224,000-$146,000 CWA AdministrationLabor Compliance Program AssentCompile Letters of •VerificationCore Worker •Worker ParticipationMonitor Local •Dispute Resolution•Union Coordination•Audits•Job Site Interviews•UtilizationApprentice •VerificationFringe Benefit •ReviewCertified Payroll •DeterminationPrevailing Wage •Enforcement•ComplianceFederal Labor •SourcesReports to Funding •AgenciesReports to State •7 slowrrfproject.org Questions? Current City Contract 9 Potential Risks, Costs & Benefits delayPotential construction schedule •local contractor participationunion -Potential for reduced non•goalsnotwithstanding established local workers absent a CWA, Union contractors cannot prefer •review & awardPotential for prolonged bid •Potential for work stoppage•stoppagePotential for work •worker participationPotential for reduced local •Risksconstruction cost••Negotiation costs•costContract language development •construction cost•administration costLocal hire program •No additional cost•CostsWork stoppages prohibited•not be permittedworkers, which otherwise would contractor to prefer local Provides authority for union •worker participation and trainingpotential of increased local established and monitored, and Local worker participation goals •workforce goalsBroad discretion for other •No schedule impact•establishedLocal worker participation goals •No schedule impact•BenefitsAgreementCommunity Workforce Hire PreferenceModified City Contract with Local