Modesto Municipal Code Art. 8 Utilizing Skilled and Trained Workforce in Public Works Contracts

(a) The City Council finds and declares as follows: The purpose of this article is to improve the quality of public works projects undertaken in the City by:

(1) Increasing the percentage of individuals utilized in public works contracts meeting the definition of a skilled and trained workforce.

(2) Utilizing a greater percentage of skilled and trained workforce will increase the quality of public works projects completed in the City because the workforce is more experienced and qualified to perform such work.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

The provisions of this article shall not apply under any of the following circumstances:

(a) When a state or federal law or regulation applicable to a particular public works contract prohibits a skilled and trained workforce requirement;

(b) When a particular public works contract utilizes grant funding, where the conditions of the grant prohibit a skilled and trained workforce requirement;

(c) When the City determines that a contract is necessary to respond to any emergency which endangers the public health, safety, or welfare;

(d) When the City, in its sole discretion, determines that a suitable pool of qualified individuals who meet skilled and trained workforce requirements does not exist for a specific public works contract.

(e) When the estimated cost of the construction of the public works contract is less than five hundred thousand dollars ($500,000.00); and/or

(f) When a public works project is governed by a particular State law or regulation prescribing skilled and trained workforce requirements inconsistent with this article.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

Except as otherwise expressly set forth herein, the following words and terms as used in this article shall have the following meanings:

(a) "Apprenticeable occupation" means an occupation for which the Chief of the Division of Apprenticeship Standards of the Department of Industrial Relations had approved an apprenticeship program pursuant to Section 3075 of the Labor code before January 1, 2014.

(b) "Construction work hours" means the total hours worked on a public works contract by qualified individuals, whether those individuals are employed by a contractor or subcontractor.

(c) "Contractor" means any of the following:

(1) Any person or entity who submits a bid as the prime entity to the City for a public works contract.

(2) Any person or entity who provides labor and/or materials for the City pursuant to a public works contract.

(d) "City" means the City of Modesto, California.

(e) "Days" means calendar days unless otherwise specified.

(f) "Public works contract" has the same meaning as set forth in Section 1307 of the City Charter, as amended or supplanted.

(g) "Qualified individuals" means any and all skilled and trained workers, including but not limited to, work site foremen, journeymen, technical engineers, apprentices, construction trainees, and construction helpers. Qualified individuals also include any and all other workers appropriate for construction activities regardless of level of skill.

(h) "Skilled and trained workforce" means a workforce that meets all of the following conditions:

(1) All the workers performing work in an apprenticable occupation in the building and construction trades are either skilled journeypersons or apprentices registered in an apprenticeship program approved by the Chief of the Division of Apprenticeship Standards of the Department of Industrial Relations.

(2) At least sixty (60) percent of the skilled journeypersons employed to perform work on the contract or project by every contractor and each of its subcontractors at every tier are graduates of an apprenticeship program for the applicable occupation. This requirement shall not apply to the following occupations: acoustical installer, bricklayer, carpenter, cement mason, drywall installer or lather, marble mason, finisher, or setter, modular furniture or systems installer, operating engineer, pile driver, plasterer, roofer or waterproofer, stone mason, surveyor, teamster, terranzzo worker or finisher, and tile layer, setter, or finisher.

(3) For the occupations exempted from the requirements of Paragraph 2 of this section (definition of "skilled and trained workforce"), at least thirty (30) percent of the skilled journeypersons employed to perform work on the contract or project by every contractor and each of its subcontractors at every tier must be graduates of an apprenticeship program for the applicable occupation.

(i) "Skilled journeyperson" means a worker who either:

(1) Graduated from an apprenticeship program for the applicable occupation that was approved by the Chief of the Division of Apprenticeship Standards of the Department of Industrial Relations or located outside California and approved for federal purposes pursuant to the apprenticeship regulations adopted by the federal Secretary of Labor.

(2) Has at least as many hours of on-the-job experience in the applicable occupation as would be required to graduate from an apprenticeship program for the applicable occupation that is approved by the Chief of the Division of Apprenticeship Standards of the Department of Industrial Relations.

(j) "Subcontractor(s)" means any person or entity that assumes, by secondary contract, some or all of the obligations of a contractor.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

(a) Each contractor and subcontractor that performs work on a public works contract shall make a good faith effort to employ a skilled and trained workforce, pursuant to California Public Contract Code § 2601, to perform all work on the project that falls within an apprenticable occupation in the building and construction trades, as defined by California Public Contract Code § 2601.

(b) Each contractor and subcontractor that performs work on a public works contract shall make a good faith effort to use graduates of an apprenticeship program as defined by Public Contract Code § 2601(c), in the percentages required by Section 8-3.803(i) of this article.

(c) A "good faith effort" means a contractor will take all of the following or similar actions to recruit and maintain skilled and trained workforce in the performance of any public works contract meeting the requirements of this article:

(1) Contact recruitment sources to identify qualified individuals;

(2) Advertise for qualified individuals in trade papers and newspapers of general circulation within the City and the County of Stanislaus, or by equivalent electronic means, unless time limits imposed under the applicable public works contract relative to the commencement and/or completion of work do not permit such advertising; and

(3) With respect to any portion of a public works contract to be performed by a subcontractor, identify subcontractors whose workforce includes qualified individuals.

(d) Each contractor shall certify that it made a good faith effort to use a skilled and trained workforce, on the form provided in the City's bid package, and shall submit the same with its sealed bid no later than the date and time of the bid opening.

(e) Each contractor shall include in each and every subcontract relating to a public works contract, a provision requiring the subcontractor to certify that it made a good faith effort to use a skilled and trained workforce in that contract. Each contractor shall be responsible for a subcontractor's compliance with the requirements of this article.

(f) Failure of any contractor or subcontractor to comply with any requirement of this article may be deemed, in the sole discretion of the City, a material breach of the public works contract.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

This article does not limit the contractor's or the subcontractor's ability to assess the qualifications of prospective workers, and to make final hiring and retention decisions. No provision of this article shall be interpreted so as to require a contractor or subcontractor to employ a worker not qualified for a position in question, or to employ any particular worker.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

(a) Nothing in this article alters the City's obligation to award a contract to the lowest bidder. The City may declare a bid to be nonresponsive under the provisions of this article for good cause including, but not limited to, the following circumstances:

(1) If a contractor fails to complete and sign, under penalty of perjury, the certification that the contractor made a good faith effort to use a skilled and trained workforce and/or fails to submit the same with its sealed bid no later than the date and time of bid opening; or

(2) If a contractor, or a subcontractor listed by a contractor, fails to comply with the requirements set forth in 8-3.804.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

For three (3) years following substantial completion of any public works contract, each contractor and subcontractor shall keep accurate payroll records, showing the name, address, and work classification for each worker who worked on the project; the straight time and overtime hours worked each day and week; whether the worker qualifies as a skilled journeyperson under California Public Contract Code § 2601; and whether the worker is a graduate of an apprenticeship program in the applicable occupation. These records shall be made available upon request by officers and agents of the City. Records shall be made available no later than ten (10) days subsequent to the request.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

All forms required under this article shall be attested to as true as to the information set forth therein and shall be submitted under penalty of perjury.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

From time to time, and at its sole discretion, the City may monitor and investigate compliance of any contractor and/or subcontractor with respect to the requirements of this article. The City shall have the right to engage in random inspections of job sites, subject to the construction schedule and safety concerns. Each contractor and subcontractor shall allow representatives of the City, in the performance of their duties, to engage in random inspections of job sites and to have access to the employees of the contractor and subcontractor and the records required to document compliance with this article. The City shall establish a procedure for City monitoring of compliance with this article and to address allegations of noncompliance. Within sixty (60) days of contractor completing all substantial work associated with a public works contract pursuant to this article, contractor shall submit documentation as set forth in Section 8-3.807 in a form acceptable to the City. The City shall have sole authority over the administration of this article.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)

If in the sole discretion of the City, the City finds that a contractor has failed to make a good faith effort to use a skilled and trained workforce in the course of performance of any applicable public works contract pursuant to the requirements of this article, the City may deem the contractor in breach of contract. In the alternative of any other available legal remedies, the City may require that contractor to develop a written plan to recruit qualified individuals as a method of complying with the requirements of this article. If the contractor fails to comply with a written plan described by this section, the City may, at its sole discretion, deem the Contractor non-responsible in the evaluation of future public works contract bid opportunities.

(Ord. No. 3744-C.S., § 2, effective 4-7-22)