Merced Municipal Code Ch. 3.12 Construction Contracts—nondiscrimination

In conjunction with this chapter the city intends to become a forceful catalyst to bring about the full cooperation of all the necessary elements of the community, including public and private agencies, developers, contractors, subcontractors, labor unions and job training and manpower programs, to end discrimination resulting from such discrimination in employment and advancement.

(Prior code § 2.60).

The city manager shall act as compliance officer in administering this chapter and on obtaining compliance with its provisions.

(Prior code § 2.61).

A. As used in this chapter, the term "construction contract" means a written contract between the city and an independent contractor for the construction, rehabilitation, alteration, conversion, extension, repair, maintenance or demolition by contractors for the city of the following municipal improvements: buildings and structures, streets, bridges, drains, ditches, canals, dams, tunnels, sewers, fire alarm systems, parking lots, parks or playgrounds or other improvements to real property.

B. Notwithstanding the above, the term "construction contract" shall not include the following:

1. Any contract between the city and any other governmental agency or entity or between the city and any public utility.

2. Any action taken by the city council or city manager in case of public emergency.

3. Any contract entered into pursuant to or under any special assessment proceedings or laws.

(Prior code § 2.62).

All construction contracts shall contain the following provision:

In the performance of this contract the contractor will not refuse or fail to hire or employ any qualified person, or bar or discharge from employment any person, or discriminate against anti person with respect to his compensation, terms, conditions or privileges of employment, because of such person's race, color, creed, national origin, ancestry, sex or age. If the contractor or any of his subcontractors shall be found in violation of the above discrimination provisions, the contractor shall be deemed to be in material breach of the contract and thereupon the city shall have the power to do all or any of the following: (1) To cancel or suspend the contract in whole or in part, and (2) to deduct and retain from the amount payable to the contractor the sum of two hundred and fifty dollars for each person discriminated against in the performance of the contract for each calendar day during which such person was discriminated against in the performance of the contract, as liquidated damages for such breach of contract; provided, that the number of persons discriminated against shall not be deemed, for the purpose of determining the amount of such damages only, to exceed the number of positions in connection with which such discrimination occurs, e.g., if twenty persons are improperly discriminated against in connection with five positions, then the multiple used in assessing damages shall be the number of positions and not the number of persons discriminated against. In the event such finding is made after completion of the contract and after payment of all sums due contractor by the city, the contractor shall be obligated to pay such sum to the city upon demand by the city. Violations of such provisions by subcontractors shall, for the purposes of this provision, be deemed to be violations by the contractor. A contractor shall not be deemed in breach of the provisions of this paragraph unless the state fair employment practices commission or an appropriate federal commission or agency, or a court of the state finds, in any action or proceeding to which such contractor is a party, that the contractor or a subcontractor is a party, that the contractor or subcontractor discriminated against one or more specifically named employees or applicants for employment because of race, creed, color, national origin, ancestry, sex or age in the performance of this contract, provided that such court has issued a final judgment in such action or proceeding, or that the fair employment practices commission has issued a final order pursuant to section 1420 of the Labor Code, or that such appropriate federal commission or agency has issued a final order or obtained a final injunction, and provided further, that for the purpose of this paragraph no judgment, order, decree or injunction shall be considered final during the period within which (1) appeal may be taken, or (2) the same has been stayed by order of the court or (3) further proceedings for vacation, reversal or modification are in progress before a competent administrative or judicial tribunal.

The contractor shall include the provisions of the above paragraph in every subcontract so that such provision shall be binding upon each of his subcontractors and vendors.

(Prior code § 2.63).

Every construction contract which requires payment by the city to a contractor of a sum in excess of twenty thousand dollars ($20,000.00) shall in addition to the provisions contained in Section 3.12.040 contain the following provisions:

(1) The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, creed, color, national origin or ancestry, in connection with employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship. Such affirmative action shall be in accordance with the affirmative action guidelines adopted by resolution of the city council, a copy of which is included in the contract documents.

(2) The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the city, setting forth that the contractor is prohibited from discriminating against any employee or applicant for employment because of race, creed, color or national origin or ancestry, and that the contractor is required to take affirmative action to ensure that applicants are employed and that employees are treated during employment without discrimination in connection with employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; provided, that if a contractor is required by any federal or state law, order, rule or regulation to post a similar notice, such posting shall satisfy the requirements hereof.

(3) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color or national origin or ancestry, or in lieu thereof that the contractor is an equal opportunity employer.

(4) The contractor will send to each labor union or representative of workers with which he has a collectible bargaining agreement or other contract or understanding, a notice, to be provided by the city, advising the labor union or workers' representative of the contractor's nondiscrimination and affirmative action commitments under this contract, and shall post copies of the notice in conspicuous places available to employees and applicants for employment; provided, that if a contractor is required by any federal or state law, order, rule or regulation to transmit a similar notice to such labor organizations, such transmittal shall satisfy the requirements hereof.

(5) The contractor will comply with all applicable provisions of this article and the affirmative action guidelines adapted pursuant thereto.

(6) The contractor shall file and shall cause any or all of his principal subcontractors, i.e., subcontractors in excess of twenty thousand dollars, to file compliance reports with the city manager, if so directed by the city manager. Compliance reports shall be filed within such times and shall contain such information as to the practices, policies, programs, and employment policies, programs and employment statistics of the contractor and each such subcontractor, and shall be in such farm, as the city manager shall prescribe, to permit a determination as to whether such contractor or subcontractor is complying with the nondiscrimination and affirmative action provisions of this contract.

In addition, the contractor and such of his principal subcontractors as are designated by the city manager shall attend compliance meetings from time to time as directed by the city manager for the purpose of reviewing the practices, policies, programs and employment statistics of the contractor and of each such subcontractor, to permit a determination as to whether such contractor or subcontractor is complying with the nondiscrimination and affirmative action provisions of this contract.

(7) Contractor shall permit, during contractor's normal business hours and at contractor's place of business, access by the city manager to his records of employment, employment advertisements, application forms and other data and records pertaining to contractor's employment practices for the purpose of determining whether contractor is complying with the nondiscrimination and affirmative action provisions of this contract.

(8) Contractor shall include provisions similar to those specified in the above paragraphs in each construction subcontract which exceeds twenty thousand dollars so that each subcontractor will be required in the performance of his subcontract to take affirmative action as is required of the prime contractor.

(9) If the city should find that the contractor or any of his subcontractors has breached any of the above mentioned affirmative action covenants, the city shall have the right to terminate or suspend its contract with the contractor in whole or in part or to deduct from the amount payable to such contractor the sum of two hundred and fifty dollars for each calendar day during which the contractor or his subcontractor is found to have been in noncompliance, as damages for such breach, or bath; provided, that no such finding shall be made if it is determined that such contractor or subcontractor has in goad faith attempted to comply with such requirements. Violations of such provisions by such subcontractors shall, for the purposes of this provisions, be deemed to be violations by the contractor.

(Prior code § 2.64).

The provisions of this chapter shall not be applicable to negotiated contracts already approved or authorized by the city prior to the effective date of this chapter, nor to those contracts proposed to be awarded for which notice to bidders is published prior to the expiration of thirty (30) days after the adoption of this chapter.

(Prior code § 2.65).