14-R-12 - CDBG Grant - Pickrell Park ADA WalkwaysRESOLUTION NO. 14 -R -12
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM COOPERATIVE AGREEMENT WITH
BEXAR COUNTY, TEXAS AND OTHER MATTERS IN CONNECTION
THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the
City participate in this Community Development Block Grant ( "CDBG ") Program
Intergovernmental Cooperative Agreement (the "Agreement") between the COUNTY OF
BEXAR, TEXAS ( "COUNTY "), a political subdivision of the State of Texas, through its
Department of Community Resources (the "Department ") and CITY OF SCHERTZ
( "SUBRECIPIENT "), a Municipal Corporation of the State of Texas (also, individually, a
"Party" or, collectively, the "Parties "), for participation in the COUNTY's Year 2013 CDBG
Program, CFDA # 14.218, Project Number B- 13 -UC -48 -0500.
WHEREAS, the City Council has determined that it is in the best interest of the City to
enter into an agreement with Bexar County, Texas pursuant to the Community Development
Block Grant Program Cooperative Agreement, attached hereto as Exhibit A (the "Agreement ").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
Y01M4
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Bexar County, Texas in substantially the form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 281h day of January, 2014
CITY OF TEXAS
r ael R. Carpenter, Mayor
ATTEST:
r
a, .' rk
n
enda Dennis, City Secretary
(CITY SEAL)
50522270.1
EXHIBIT A
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM COOPERATIVE
AGREEMENT
50522270.1 A -1
k
13 L x A to 0 0 u N T v
DEPARTMENT OF COMMUNITY
R E s o U R C E s
Aurora M. Sanchez
Executive Director
Thursday, June 26, 2014
City of Schertz
Honorable Michael Carpenter, Mayor
1400 Schertz Parkway
Schertz, Texas 78164
RE: 2013 CDBG - City of Schertz
The Pickrell Park Improvements Project
Dear Mr. Carpenter:
Attached is an executed original Community Development
Infrastructure Agreements between Bexar County and the
CDBG funded Projects.
Block Grant Program
City of Schertz for the 2013
Please note that this is a reimbursable agreement, naming the City of Schertz and
Bexar County as the Project Manager. Reimbursement of funding will be made once the
City of Schertz provides Bexar County with the necessary documentation as per the
agreement. If you have any questions, or need additional information please contact
Derik Samuelson, Project Analyst at 210. 335 ,6967 /derik.samuelson anbexar org.
Inc r�ly,
Im Perez
CD H Supervisor
Cc: File
Vista Verde Plaza Building • 233 N Pecos � Suite 590 - San Antonio • TX 78207 - 210- 3353888 , Fax: 210 335 -8788 • VNIVI.boxar org
STATE OF TEXAS
COUNTY OF BEXAR
��IFINAI.
COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM
INTERGOVERNMENTAL
COOPERATIVE AGREEMENT
This Community Development Block Grant ( "CDBG ") Program Intergovernmental
Cooperative Agreement (the "Agreement ") is entered into this ,�LrP day of ; -fLu't P,
2014, between the COUNTY OF BEXAR, TEXAS ( "COUNTY "), a political
subdivision of the Slate of Texas, through its Department of Community Resources (the
"Department ") and CITY OF SCHERTZ ( "SUBRECIPIENT "), a municipal corporation of the
State of Texas (also, individually, a "Party" or, collectively, the "Parties "), for participation in
COUNTY's Year 2013 Year CDBG Program, CFDA 9 14.218, Project Number B- 13- UC -48-
0500.
RECITALS
COUNTY has received CDBG Program fends from the United States Department of
Housing and Urban Development (HUD) under Title I of the Housing and Community
Development Act of 1974, as amended, and SUBRECIPIENT, a jurisdiction participating with
COUNTY for CDBG funding eligibility, has requested that COUNTY provide funds for the
Pickrell Park Improvements Project.
COUNTY believes it to be in the best public interest and benefit to provide assistance to
the SUBRECIPIENT with the Pickrell Park improvements Project, which is a CDBG Program
activity and meets the national objective of Limited Clientele.
ARTICLE I
PURPOSE
1.01 The purpose of this Agreement is to provide CDBG Program funds for the Pickrell Park
Improvements Project (the "Project') that includes but is not limited to the design and
construction ofADA walkways in Pickrell Park located within the City of Schertz.
ARTICLE II
EFFECTIVE DATE OF AGREEMENT
2.01 This Agreement is effective on the (late it is executed by COUNTY. Costs incurred prior
to that date will not be eligible for reimbursement. Furthermore, no reimbursements will be
made pursuant to this Agreement Until HUD releases the grant fiends for the Project.
ARTICLE III
GRANT AWARD
3.01 COUNTY awards SUBRECIPIENT a grant not to exceed $61,884 for the Project from
COUNTY'S Year 2013 CDBG Program. .
3.02 SUBRECIPIENT's grant award may not exceed $61,884 under any circumstances, but
may be less than that amount and will be determined by actual costs of the Project.
3.03 Upon completion of the Project, COUNTY will, by written notic6 to SUBRECIPIENT,
deobligate any part of the CDBG Program funds allocated under this Agreement that were not
needed to complete the Project.
3.04 COUNTY may, by giving written notice to SUBRECIPIENT, increase the CDBG
Program funds allocated under this Agreement if SUBRECIPIENT determines that the allocation
is insufficient to complete the Project and COUNTY has other unencumbered funds available.
ARTICLE IV
SUBRECIPIENT SERVICES
4.01 Professional Services:
a. SUBRECIPIENT shall utilize its Architect or Engineer (the "Professional ") for
development of plans and specifications for the Project.
b. SUBRECIPIENT shall submit to COUNTY its Professional's fee proposal for
approval by COUNTY prior to starting any work. Upon approval of the
Professional's fee proposal, SUBRECIPIENT may authorize its Professional to
begin development of plans and specifications for (lie Project. Funding to
SUBRECIPIENT for professional services is reimbursable and payable in
accordance with terms and conditions approved by SUBRECIPIENT and
COUNTY in writing for professional services to reflect the following:
(1) Preliminary Design Phase 25%
(2) Construction Documents Phase 40%
(3) Bidding Phase 5%
(4) Construction Phase 30%
C. Upon completion of each phase, SUBRECIPIENT shall request reimbursement of
payments by submitting the following documentation to COUNTY:
(1) A copy of the work completed by the Professional;
(2) A copy of the Professional's invoice to SUBRECIPIENT;
(3) Copies of any COUNTY approved change order(s) and /or amendments to
the Professional's contract and City Celmell action approving same, along
with COUNTY's prior approval of same; and
(4) A copy of SUBRECIPIENT'S canceled check, verifying payment to the
Professional.
d. SUBRECIPIENT's Professional shall prepare and provide COUNTY written
construction cost estimates for the Project. COUNTY shall approve cost
estimates prior to construction.
e. SUBRECIPIENT shall have ninety (90) calendar days from the date of execution
of this Agreement to complete plans and specifications for the Project.
4.02 Construction Services;
a. Upon completion of the plans and specifications, SUBRECIPIENT may obtain,
through a competitive bid process, a contractor to construct the Project in
accordance with said plans and specifications. Any contracts entered into by
SUBRECBPIENT must have the prior written approval of COUNTY. COUNTY
will not make any reimbursements to SUBRECIPIENT when prior written
approval for the contract by COUNTY was not obtained.
b. SUBRECIPIENT may construct a portion of the Project using SUBRECIPIENT's
employees. COUNTY shall reimburse SUBRECIPIENT only for the material
costs associated with the portion of the Project constructed using
SUBRECIPIENT's employees.
C. Payment under this Agreement to SUBRECIPIENT will be based on the
SUBRECIPIENT's actual cost of materials, supplies, and contacted -for
construction.
d. Funding to SUBRECIPIENT for all construction, including materials and
supplies, cannot exceed the grant award, less professional services. Requests for
reimbursement of payments under the written construction contract may be made
by submitting the following documentation to Department's Housing and
Community Development Division, 233 N. Pecos, Suite 350, San Antonio, Texas
78207:
1. A copy of the construction contract with COUNTY'S written approval;
2. A copy of the contractor's invoice and SUBRECIPIENT's material
supplier's cost invoice;
3. A copy of the application for payment on ail work completed by the
contractor(s) and approved by SUBRECIPIENT's Professional;
4. Copies of any addendum, change orders and /or amendments to the
construction contact, SUBRECIPIENT's action approving same, along
with prior written approval of COUNTY;
5. Certified copy of City Council's minutes where the SUBRECIPIENT
accepted and approved each contractor request for payment and a copy of
SUBRECIPIENTs canceled check verifying payment to the contractor and
to the material supplier(s),
e. SUBRECIPIENT's Professional shall prepare change orders and /or amendments
to the construction agreement in duplicate for review and approval by COUNTY.
Each change order must be specific and final as to prices and extension time with
no reservations or other provisions allowing for future additional money or time
as a result of the particular changes identified and fully compensated in the
change order. Change orders must be submitted to the Department for approval by
COUNTY before any work is performed COUNTY will not pay any change
order that has not been previously approved by COUNTY pursuant to these
provisions. Total change orders may not exceed 25% of the original construction
contract price. The total construction costs, including Change Orders must not
exceed the amount allocated by COUNTY for the construction of the Project
under any circumstances.
ARTICLE V
PROJECT REQUIREMENTS
5.01 SUBRECIPIENT shall obtain professional and construction services necessary for the
project, all in accordance with engineering specifications as required.
5.02 SUBRECIPIENT agrees that the Project will be completed according with normal
engineering standards and pursuant to specifications, including any amendments and addenda, as
finally approved by COUNTY.
5.03 SUBRECIPIENT shall ensure completion of the Project if the allocated CDBG Program
funds are not available or sufficient to cover total Project costs.
5.04 SUBRECIPIENT will work diligently to complete the Project within one year of the
execution of this Agreement. If SUBRECEIPIENT is unable to complete the Project within this
timeframe, SUBRECIPIENT will notify the COUNTY and the Parties will arrive at a mutually
acceptable completion date.
ARTICLE VI
GRANT REVIEW
6.01 The Department is the Administrative Office for COUNTY'S CDBG Program and will
be the primary contact regarding the CDBG and this Agreement.
6.02 If SUBRECIPIENT utilizes subcontractors in performing any obligation required by this
Agreement, the Department staff shall, prior to execution of all contractual agreements, review
and approve the selection process, bidding procedures and all proposed agreements, if any,
entered into by SUBRECIPIENT. A written agreement will be required for construction
services.
6.03 The Department staff will determine what is eligible for reimbursement under this
Agreement.
ARTICLE VII
PROGRAM INCOME
7.01 In accordance with 24 CFR 570.500(a), the term "Program Income" means gross income
received by the SUBRECIPIENT directly generated from the use of CDBG Program funds.
When Program Income is generated by an activity that is only partially assisted with CDBG
Program funds, the income shall be prorated to reflect the percentage of CDBG Program funds
used. Program Income includes, but is not limited to, the following:
a. Proceeds from the disposition by sale or long -term lease of real property
purchased or improved with CDBG Program funds;
b. Proceeds from the disposition of equipment purchased with CDBG Program
funds;
C. Gross income from the use or rental of real property acquired by the
SUBRECIPIENT with CDBG Program funds, less costs incidental to generation
of the income;
d. Gross income from the use or rental of real property owned by the
SUBRECIPIENT that was constructed or improved with CDBG Program funds,
less costs incidental to generation of the income;
e. Interest earned on Program Income pending its disposition.
7.02 Program Income does not include proceeds from the disposition of real property acquired
or improved with CDBG Program funds when the disposition occurs five years after expiration
of this Agreement,
7.03 By the tenth of each month, SUBRECIPIENT shall report and return to COUNTY all
Program Income received or accrued during the preceding month. The monthly reports must be
submitted to COUNTY commencing from the date of completion of the Project until five years
thereafter, Alternative arrangements to this requirement may be made only upon written request
to and written approval by COUNTY.
7.04 Records of the receipt and disposition of Program Income must be maintained by
SUBRECIPIENT in the same manner as required for other Agreement fimds and must be
submitted to COUNTY in the format prescribed by COUNTY. SUBRECIPIENT shall maintain
records of Program Income for five years after submission of the final monthly report.
7.05 SUBRECIPIENT must include this Article VII in its entirety in all of its subcontracts
involving income - producing services or activities.
7.06 SUBRECIPIENT must obtain from COUNTY a prior determination as to whether or not
income arising directly or indirectly from this Agreement, or from the performance thereof,
constitutes Program Income. Unless otherwise approved in writing by COUNTY,
SUBRECIPIENT shall be responsible to COUNTY for the repayment of any and all amounts
determined by COUNTY to be Program Income.
ARTICLE VIII
PROGRAM RECORDS & REQUIREMENTS
8.01 SUBRECIPIENT shall comply with all federal, state, and local laws and ordinances
applicable to COUNTY for the work or services under this Agreement.
8.02 SUBRECIPIENT shall maintain all financial records in accordance with Audits of State,
Local Governments, Non -Profit Organizations, OMB Circular A -133; Cost Principals for Stale
and Local Governments, OMB Circular A -87; and Administration Requirements for Grants and
Cooperative Agreements to State, Local and Federally Recognized Indian Tribal Governments,
24 CFR Part 85.
8.03 COUNTY shall have no obligation to release funds to SUBRECIPIENT until a
representative of COUNTY has reviewed SUBRECIPIENT's fiscal and accounting procedures
to insure compliance with federal requirements.
8.04 COUNTY shall conduct, at a minimum, monthly monitoring visits to SUBRECIPIENT's
Project site to determine performance and compliance with rules and regulations governing the
CDBG Program. These rules and regulations are outlined in the Federal Compliance Manual,
which outlines documentation and reporting requirements for SUBRECIPIENT.
8.05 SUBRECIPIENT shall maintain books, records and other documents relating directly to
the receipt and disbursement of grant finds.
8,06 SUBRECIPIENT shall allow any duly authorized representative of COUNTY, the
Secretary of HUD, or the Comptroller General of the United States, at all reasonable times, to
have access to and the right to inspect, copy, audit, and examine all books, records and other
documents of closeout procedures respecting this grant, until final settlement and conclusion of
all issues arising out of this activity are completed.
8.07 SUBRECIPIENT shall have an independent- auditor audit the expenditure of funds
pursuant to this Agreement as part of the annual audit performed on SUBRECIPIENT. The
audit, with respect to the funds tinder this Agreement, must be performed in accordance with the
requirements of OMB Circular A -133. The audit report will include SUBRECIPIENT's
expenditures and revenues for the same time period as COUNTY's fiscal year.
SUBRECIPIENT agrees to maintain all fiscal records and supporting documentation for a period
of five years after the Project is reported on for the final -time. If any expenditures under this
Agreement are found to be ineligible for reimbursement by the original audit, and /or any
subsequent audits performed within three years following the acceptance of the original audit,
SUBRECIPIENT shall reimburse COUNTY for those expenditures declared ineligible within
ninety (90) days after being notified in writing of the findings.
8.08 SUBRECIPIENT shall comply with all rules and regulations as described in 24 CFR,
Parts 570, Subparts A through O of the CDBG Program, including but not limited to, the
Uniform Administrative Requirements described in Section 570.502.
n
8.09 SUBRECIPIENT shall also comply with Subpart K and other Program Requirements in
accordance with 24 CFR 570.600 through 570.612 and pursuant to Section 104(b) of the
Housing & Community Development Act, except that
SUBRECIPIENT does not assume COUNTY's environmental responsibilities
identified in 24 CFR 570.604; and
b. SUBRECIPIENT does not assume COUNTY's responsibility for initiating the
intergovernmental review process of Executive Order 12372 described at 24 CPR
570.612.
8.10 The Federal Compliance Manual is incorporated into this Agreement and made a part of
its terms and conditions. SUBRECIPIENT shall comply with all requirements as outlined in the
Federal Compliance Manual
8.11 HUD's Federal Labor Standards Provisions (HUD - 4010) are incorporated into and
made part of the terms and conditions of this Agreement.
ARTICLE IX
TERMINATION AND DEIFAULT
9.01 COUNTY may, for any reason, terminate the whole or any part of this Agreement aEler
ten (10) days written notice to SUBRECIPIENT. COUNTY shall pay SUBRECIPIENT for the
amount of xvork completed up to the termination date of this Agreement.
9.02 Upon default or termination of this Agreement, SUBRECIPIENT shall transfer to
COUNTY all CDBG Program funds and Program Income, along with any accounts receivable
attributable to CDBG Program funds within three (3) business days.
9.03 In accordance with 24 CFR 85.43, COUNTY may suspend or terminate this Agreement if
SUBRECIPIENT materially fails to comply with any item herein. This Agreement may also be
terminated for convenience in accordance with 24 CFR 85.44,
ARTICLE X
FURTHER REPRESENTATIONS. WARRANTIES AND COVENANTS
10.01 SUBRECIPIENT further represents and warrants that:
a. All information, data or reports ever provided or to be provided to COUNTY is,
will be, and will remain complete and accurate as of the date shown on the
information, data or report, and that since said date shown, will not have
undergone any significant change without written notice to COUNTY.
b. Any supporting financial statements ever provided, or to be provided to
COUNTY are, will be, and will remain complete, accurate and fairly reflective of
the financial condition of SUBRECIPIENT on the date shown on the statements
and during the period covered thereby, and that since said the date shown, except
as provided by written notice to COUNTY, there has been no material change,
adverse or otherwise, in the financial condition of SUBRECIPIENT.
C. No litigation or proceedings are presently pending or threatened against
SUBRECIPIENT relating to the Agreement or Project.
d. None of the provisions contained herein contravene or in any way conflict with
the authority under which SUBRECIPIENT is doing business or with the
provisions of any existing obligation or agreement of SUBRECIPIENT.
e. SUBRECIPIENT has the legal authority to enter into this Agreement and accept
payments, and has taken all necessary measures to authorize the execution of the
Agreement and acceptance of payments under it.
10.02 During the period of time that payment may be made under the Agreement and so long as
a payment is due and payable, but has not yet been paid, SUBRECIPIENT covenants that it shall
not, without the prior written consent of COUNTY:
a. Sell, convey, mortgage, pledge, or otherwise encumber or cause to be encumbered
any of the assets of SUBRECIPIENT now owned or hereafter acquired by it
through the use of CDBG Program funds, or permit any pre - existing mortgages,
liens, or other encumbrances to remain on or attached to any of the assets of
SUBRECIPIENT that are allocated to the performance of this Agreement and
with respect to which COUNTY has ownership hereunder; or
b. Sell, assign, pledge, transfer or otherwise dispose of CDBG account receivables,
notes or claims for money due or to become due.
10,03 SUBRECIPIENT warrants and represents that it is a municipal corporation, duly
organized, validly existing and in good standing under the laws of the State of Texas, is qualified
to conduct business and is in good standing in such, and has all power and authority to conduct
its business as presently conducted.
10.04 SUBRECIPIENT warrants and represents that:
a. SUBRECIPIENT has the power and authority to enter into and perform this
Agreement; and
b, this Agreement, when executed and delivered, will be a valid and binding
obligation of SUBRECIPIENT enforceable in accordance the its terms.
10.05 SUBRECIPIENT warrants and represents that the execution, delivery and performance of
this Agreement:
a. have all been duly authorized by all necessary action;
b, are within the power and authority of SUBRECIPIENT;
C. do not and will not contravene or violate the organizational documents of
SUBRECIPIENT;
do not and will not result in the breach of, or constitute a default under, any
agreement or instrument by which SUBRECIPIENT or any of its property may be
bound or affected; and
e. do not and will not result in the creation of any lien upon any property of
SUBRECIPEENT.
SUBRECIPIENT ftu•ther warrants and represents that all necessary permits, registrations and
consents for the execution, delivery and performance of this Agreement have been obtained.
10.06 Each of the foregoing representations , warranties and covenants will be continuing and
deemed repeated each time SUBRECIPIENT submits a new request for payment in accordance
with the terms, provisions and requirements of this Agreement.
ARTICLE XI
PERFORMANCE RECORDS AND REPORTS
11.01 As often and ill such form as COUNTY may require, SUBRECIPIENT shall furnish to
COUNTY any performance records and reports deemed by COUNTY to be pertinent to matters
covered by this Agreement,
ARTICLE XII
12.01 In all contracts entered into by SUBRECIPIENT on the Project, SUBRECIPIENT shall
include provisions reflecting:
a. With regard to insurance coverage during the construction phase of the Project,
SUBRECIPIENT shall require all consultants, contractors, subcontractors and suppliers to
maintain the insurance coverage limits which are sufficient to compensate COUNTY and
SUBRECIPIENT for their respective interests in the Project with regard to any liability a third
party may have due to the services, equipment, or materials provided for construction of the
Project, COUNTY and SUBRECIPIENT shall be named as an additional insured on all
policies. SUBRECIPIENT shall provide COUNTY's designated representative with copies of
the completed certificates of insurance which certificates shall be completed by an agent
authorized to bind the named underwriters and their companies to the coverage limits and
termination provisions shown thereon. COUNTY reserves the right to review the insurance
requirements during the effective period of this Agreement, and any extension or renewal hereof,
and to modify insurance coverage and limits when deemed necessary and prudent by
COUNTY's Risk Manager based upon changes in statutory law or court
decisions. SUBRECIPIENT will not allow any modifications to the insurance coverage through
which COUNTY may incur increased risks.
b. SUBRECIPIENT shall require all contractors and service providers to maintain statutory
worker's compensation insurance for all of their employees with a waiver of subrogation in favor
of COUNTY and SUBRECIPIENT.
C. COUNTY shall require in its contracts with third party providers of services,
construction, and materials an indemnification of COUNTY and SUBRECIPIENT, their
officials, employees, and agents from all claims by third parties.
d. SUBRECIPIENT will require the consultants, contractors, and any subcontractors to
provide all statutorily required payment and performance bonds at no additional cost to the
Parties. On services for which performance bonds are not statutorily required, SUBRECIPIENT
shall determine whether to require performance bonds.
12.02 SUBRECIPIENT shall maintain and provide proof of general liability insurance of not
less than $1,000,000 naming COUNTY as additional insured.
12.03 SUBRECIPIENT shall maintain adequate insure against fire, loss, or theft of all non -
expendable property acquired under this Agreement and shall provide proof of that insurance
naming COUNTY as additional insured.
12.04 Actual losses not covered by insurance as required by this Article are not be allowable
costs under this Agreement, and therefore remain the sole responsibility of SUBRECIPIENT.
12.05 If SUBRECIPIENT either directly or indirectly engages in any construction,
rehabilitation, or renovation activities utilizing fturds provided pursuant to this Agreement, the
current and specific bonding and compliance provisions required at that time will prevail.
ARTICLE XHI
EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
13.01 SUBRECIPIENT shall comply with all applicable local, state and federal equal
employment opportunity and affirmative action rules, regulations and laws.
13.02 If SUBRECIPIENT (or a subcontractor of SUBRECIPIENT) fails to comply with local,
state and federal equal employment opportunity and affirmative action rules, regulations and
laws, COUNTY may cancel, terminate, or suspend this Agreement, in whole or in part, and
SUBRECIPIENT may be barred fi•om further contracts with COUNTY.
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ARTICLE XIV
CONFLICT OF INTEREST
14.01 SUBRECIPIENT sliall comply with all of the applicable conflict of interest provisions
found in 24 CFR 570.611.
ARTICLE XV
PROHIBITED ACTIVITIES
15.01 Political Activities. None of the performance rendered under this Agreement may
involve, and no portion of the funds received may be used, either directly or indirectly, for any
political activity including, but not limited to, an activity to further the election or defeat of any
candidate for public office or for any activity undertaken to influence the passage, defeat or final
content of local, state or federal legislation.
15.02 Sectarian or Religious Activities. None of the performances rendered under this
Agreement may involve, and no portion of the funds received may be used, either directly or
indirectly, for the construction, operation, maintenance or administration of any sectarian or
religious facility or activity, nor may the performance rendered or finds received be utilized so
as to benefit, directly or indirectly, any sectarian or religious facility or activity.
ARTICLE XVI
AUTHORIZED USE
16.01 COUNTY and SUBRECIPIENT will follow all applicable HUD regulations and
guidelines regarding the use of facilities constructed with CDBG Program funds.
ARTICLE XVII
PUBLICITY
17.01 When appropriate, as determined by and upon written approval of COUNTY,
SUBRECIPIENT shall publicize the activities conducted by SUBRECIPIENT pursuant to the
terms of this Agreement, In any news release, sign, brochure, or other advertising medium
disseminating information prepared or distributed by or for SUBRECIPIENT, mention must be
made of HUD funding and COUNTY participation having made this Project possible.
ARTICLE XVIII
PUBLICATIONS
18.01 All published materials and written reports submitted pursuant to this Agreement must be
originally developed unless otherwise specifically provided. If material not originally developed
is included in a report, however, that material must have its source identified, either in the body
of the report or by footnote, regardless of whether the material is in a verbatim or extensive
paraphrase format.
18.02 All published materials submitted pursuant to this Project must include the following
reference on the front cover or title page:
I1
"This document was prepared in accordance with Bexar County's Community
Development Block Grant Program, with funding received from the United States
Department of Housing and Urban Development."
ARTICLE XIX
RIGHTS TO PROPOSAL AND CONTRACT MATERIAL
19.01 All reports, documents, studies, charts, schedules, or other appended documentation to
any proposal or contract, and any responses, inquiries, correspondence and related material
submitted by SUBRECIPIENT, upon receipt, become the property of COUNTY.
ARTICLE XX
CHANGES AND AMENDMENTS
20.01 Except when the terms of this Agreement expressly provide otherwise, any alterations,
additions, or deletions to the terms hereof must be by amendment in writing executed by both
Parties.
20.02 Any changes in local, stale and federal rules, regulations or laws applicable to this
Agreement that occur during its term will be automatically incorporated into this Agreement
without written amendment hereto, as of the effective date of the rule, regulation or law.
20.03 SUBRECIPIENT shall notify COUNTY in writing of any proposed change in physical
location for work to be performed pursuant to the terms of this Agreement at least thirty (30)
calendar days in advance of the proposed change,
ARTICLE XXI
NOTIFICATION OF ACTION BROUGHT
21.01 If any claim, demand, suit, proceeding, cause of action or other action (a "Claim ") is
made or brought against SUBRECIPIENT, SUBRECIPIENT shall give written notice to
COUNTY within two (2) business days after receiving notice of the Claim. SUBRECIPIENT's
notice to COUNTY must state the date and hour of notification to SUBRECIPIENT of the
Claim, the names and addresses of those instituting or threatening to institute the Claim, the basis
of the Claim, and the name(s) of any others against whom the Claim is being made or threatened.
Written notice pursuant to this Article must be delivered either personally or by mail in
accordance with this Agreement.
ARTICLE XXII
ASSIGNMENTS
22.01 SUBRECIPIENT shall not transfer, pledge or otherwise assign this Agreement, any
interest in and to same, or any claim arising thereunder, without first procuring the written
approval of COUNTY.
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ARTICLE XXIII
WAIVER OF PERFORMANCE
23.01 No waiver by COUNTY of a breach of any of the terms, conditions, covenants or
guarantees of this Agreement may be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other term, condition, covenant or guarantee herein
contained. Further, any failure of COUNTY to insist in any one or more cases upon the strict
performance of any of the covenants of this Agreement, or to exercise any option herein
contained, will not be construed as a waiver or relinquishment for the future of such covenant or
option, In fact, no waiver, change, modification or discharge by either Party of any provision of
this Agreement will be deemed to have been made or be effective unless expressed in writing
and signed by the Party to be charged.
23.02 No act or omission of COUNTY will in any manner impair or prejudice any right, power,
privilege, or remedy available to COUNTY hereunder or by law or in equity, such rights,
powers, privileges or remedies to be always specifically preserved hereby.
ARTICLE XXIV
REVERSION OF ASSETS
24.01 All CDBG Program funds on hand, available to, or in the actual or constructive
possession of SUBRECIPIENT when this Agreement expires, and any accounts receivable
attributable to tine use of CDBG Program funds, must be transferred to COUNTY, unless
otherwise specified in this Agreement.
24.02 Any real property under the control of SUBRECIPIENT that was acquired or improved
in whole or in part with CDBG funds in excess of $25,000 must meet the following requirements
in accordance with 24 CFR 570.503(b) (8):
a) the property must be used by SUBRECIPIENT to meet one of the National
Objectives identified in 24 CFR 570.208 until five (5) years after the expiration of
this Agreement; or
b) the property is disposed of in such a manner that results in COUNTY being
reimbursed in the amount of the current fair market value of the property less any
portion of the value attributable to expenditure of non -CDBG Program finds for
acquisition of or improvement to the property.
13
ARTICLE XXV
ENTIRE AGREEMENT
25.01 This Agreement constitutes the final and entire agreement between the Parties and
contains all of the terms and conditions agreed upon. No other agreements, oral or otherwise,
regarding the subject matter of this Agreement will be deemed to exist or to bind the Parties
unless it is in writing, dated subsequent to the date of this Agreement, and duly executed by the
Parties.
ARTICLE XXVI
INTERPRETATION
26.01 If any disagreement or dispute arises between the Parties pertaining to the interpretation
or meaning of any part of this Agreement or its governing rules, regulations, laws, codes or
ordinances, COUNTY, as the Party ultimately responsible to HUD for matters of compliance,
shall have the final authority to render or secure an interpretation.
ARTICLE XXVII
NOTICES
27.01 For purposes of this Agreement, all official communications and notices among the
Parties will be deemed sufficient if in writing and mailed, registered or certified mail, postage
prepaid, to the addresses set forth below:
COUNTY:
Aurora M. Sanchez
Executive Director
Bexar County Department of Community Resources
Community Development & Housing Division
233 N. Pecos, Suite 590
San Antonio, Texas 78207
SUBRECIPIENT:
Honorable Michael Carpenter
Mayor
City of Schertz
1400 Schertz Parkway
Schertz, Texas 78154
ARTICLE XXVIII
PARTIES BOUND
28.01 This Agreement will be binding on and inure to the benefit of the Patties and their
respective, administrators, legal representatives, successors and assigns, except as otherwise
expressly provided.
14
ARTICLE XXIX
GENDER
29.01 Words of gender used in this Agreement include the other gender, and words in the
singUlar number include the plufal, unless the context otherwise requires.
ARTICLE XXX
CAPTIONS
30.01 The captions contained in this Agreement are for convenience of reference only, and in
no way limit or enlarge the terms and /or conditions of this Agreement.
ARTICLE XXXI
TEXAS LAW TO APPLY
31.01 This Agreement will be construed under and in accordance with the laws of the United
States and the State of Texas, and all obligations of the Parties are performable in Bexar County,
Texas,
ARTICLE XXXII
LEGAL CONSTRUCTION
32.01 If any one or more of the provisions contained in this Agreement is held to be invalid,
illegal or unenforceable in any respect, that invalidity, illegality, or unenforceability will not
affect any other provision and this Agreement will be construed as if such invalid, illegal, or
unenforceable provision had never been contained in the Agreement.
This Agreement is executed in duplicate originals this j 1 },,
15
CITY OT T
I
By
' rae arpenter•
Mayor
clay of
APPROVED AS TO LEGAL FORM:
Susan D. Reed
Criminal District Attorney
Bexar County, Texas
J''ll m•bert
B ,ar Couuly Assistant Criminal
istlictAttorney -Civi Division
APPROVED AS TO FINANCIAL CONTACT:
By: ,-
Susan WAS
County Auditor
16
APPR V1 D:
B};
Aurm a M. Sanchez
Executive Director
Department of Community Resources
B E X A R C 0 U N T Y
DEPARTMENT OF COMMUNITY
R E S O U R C E S
Aurora M. Sanchez
Executive Director
LABOR STANDARDS NOTICE
DATE: January 28, 2014
The U. S. Department of Housing and Urban Development (HUD) has provided guidance to
Bexar County regarding compliance with Davis Bacon and Related (DBRA) Acts and
Federal Labor Standards for Entities receiving CDBG and HOME funds. One of Bexar
County's requirements is that HUD Form 4010- Federal Labor Standards Provisions be
included as an exhibit in our contracts and maintained in our contract files.
HUD Form 4010 contains the labor standards clauses appropriate for the CDBG and HOME
programs. Davis Bacon ensures that mechanics and laborers employed in construction work
under federally assisted contracts are paid wages and fringe benefits equal to those that
prevail in the locality where the work is performed. Also, it obligates the project contractor to
comply with Davis -Bacon wage and reporting requirements and provides for remedies and
sanctions should violations occur.
Your CDBG or HOME contracts identify your responsibilities, and you can expect to be
audited for compliance with this federal requirement during any monitoring reviews or visits
from our office. Attached to this notice is a copy of the HUD Form 4010 that should be
maintained in your project files. It should also be included in bid solicitations and
subsequent contracts with participants involved in your projects.
Also attached to this notice are resources to assist you in complying with this requirement.
These documents outline the purpose and applicability of DBRA and the responsibilities of
all involved parties.
Please review the attached information. Should you have any questions regarding this
notice or this federal requirement and your responsibilities associated with it, please contact
your assigned CDBG or HOME Division Project Analyst.
Thank you for your attention and assistance in this matter.
Aurora M. Sanchez
Executive Director
Community D nt and Housing Division
onora le Michael Carpenter
City of Schertz Mayor
1400 Schertz PKWY
Schertz, Texas 78154
www.bexar.org
Date
233 N. Pecos, Suite 590 • San Antonio, Tx 78207 1210-335-6648 • Fax:210- 335 -6755
DAVIS -BACON AND RELATED ACTS: Purpose and Applicability
Purpose: Provides local laborers and contractors a fair opportunity to compete and
participate in building programs that are wholly or partially funded by the Federal
government. Protects local wage standards by preventing contractors from basing their
bids on wages lower than the prevailing wages in the area.
The Davis -Bacon Act is one of the Federal Labor Standards that is applied to federally
funded or assisted projects. Federal Labor Standards ensure:
1. Workers are paid no less than the area's local prevailing wages for similar kinds of
work.
2. Workers receive premium pay for overtime hours worked.
3. Wages are paid at least once per week.
4. Unauthorized deductions from a worker's pay is prohibited.
Applicability to HUD Programs:
Community Development Block Grant (CDBG); Housing and Community
Development Act of 1974 as amended, Section 110; HUD Regulation 24 CFR
570.603:
Davis -Bacon requirements are applicable when CDBG funds are used in whole or in part
to finance construction work. Applicability is triggered if CDBG funds pay for any direct
costs of construction and when one of the following thresholds are met:
➢ Residential: Davis Bacon and Related Acts (DBRA) apply to residential properties
only if the properties contain 8 or more units. Single — family homeownership units
are usually not covered, because each unit is viewed as a single residential property
containing one unit.
➢ Non - residential: any construction work financed valued over $2,000 and financed
with CDBG funds.
➢ Clearance of land or site improvements.
HOME Investment Partnerships Program (HOME); National Affordable Housing
Act of 1990, Section 286 (a); HUD regulation 24 CFR 92.354:
Residential: Construction contracts, which contain 12 or more "assisted units," are
covered by prevailing wage requirement. Davis -Bacon requirements are applicable when
HOME funds are used for ANY eligible project costs, including construction and non-
construction costs (direct and indirect), so long as the contract for construction contains
12 or more HOME- assisted units.
Homeownership: If a pre - construction agreement is made with the owner /developer of a
housing project that HOME funds will be used to assist homebuyers with buying the
housing, and the construction contract covers 12 or more HOME- assisted units, Davis -
Bacon Labor Standards apply.
If both CDBG and HOME are involved in a residential project, the lower CDBG
threshold would apply.
DAVIS -BACON AND RELATED ACTS: Responsibilities
Responsibilities: The contractors /subcontractors, organization, and the funding entity each have
distinct and separate responsibilities for compliance to Davis - Bacon.
A. Contractors /Subcontractors: (Any entity involved in construction of project)
1. Prepare bid proposal using appropriate Davis -Bacon wages /classifications,
when applicable.
2. Comply with labor standards and requirements throughout duration of
project.
3. Contractor responsible for submitting weekly certified payroll reports to
Bexar County. Subcontractors submit to prime contractor.
4. On the job site, post a copy of the wage decision and DOL poster, Notice
to Employees.
5. Maintain set of payroll and other basic records for at least 5 years after
project completion.
B. Funded Agency /Organization: (Subrecipient)
1. Prepare bid package /solicitation using requiring contractor compliance to
Federal Labor Standards and Davis- Bacon.
2. Include Federal Labor provisions in contract, including the wage decision
and HUD Form 4010.
3. Conduct a pre- construction conference with appropriate parties and
personnel.
4. Establish files for each contractor and document activities.
5. Review weekly certified payroll reports and submit to Bexar County.
6. Maintain project files for at least 5 years after project completion.
7. As necessary, investigate and report any violations and take appropriate
corrective actions.
C. Funding Entity (CDBG & HOME Division)
The funding entity has the same responsibilities as the funded organization,
and is ultimately responsible for compliance of Federal Labor Standards and
Davis - Bacon. In addition:
1. Verify that vendors, contractors and subcontractors are not listed on the
Federal debarment listing.
2. Provide wage determinations, HUD Form 4010, and DOL poster and
disseminate to subricipient and contractors.
3. Provide copies of reporting tools.
4. Maintain files for a minimum of 5 years.
5. As required, report labor violations and corrective actions to HUD.
DAVIS -BACON AND RELATED ACTS:
CHECKLIST FOR
ENFORCING DAVIS -BACON LABOR REQUIREMENTS
Planning the Project:
Determine if Davis -Bacon or Related Acts apply, given project and funding source.
NOTE: Prior to the start of the project during the contract negotiations or at the contract's execution
date, the best and safest approach to ensuring compliance is to hold a preliminary orientation
meeting of the project sub- grantee /sub- recipient/project provider, project monitor.
2. Determine the proper wage determination: Building, Residential, Heavy, or Highway.
3. Obtain the Davis -Bacon wage decision and labor standards contract provisions applicable
to the project and include them in the bid specifications. Include language in the bid
documents that the contract is covered by Federal Davis -Bacon wage requirements and that
not less than the prevailing wage rate be paid to workers at the construction site, as set forth
in the included wage determination.
The Davis Bacon Wage decision or wage determination is a listing of various construction work job
classifications such as carpenter, electrician, plumber, etc. and the minimum wage rates and fringe
benefits that people performing work in those classifications must be paid. Wage decisions are
established for various types of construction categories (e.g., residential, building, heavy, highway)
and apply to specific geographic areas.
4. Ten (10) days before the bid opening check to see if decision is still current by checking the
Website or calling HUD Labor Relations staff.
➢ If no change occurred, document this to the file.
➢ If a change occurred, determine if sufficient time exists to notify all bidders.
5. Determine if a modification affects your project activities, and, if so, send out notice to
bidders.
6. Verify eligibility of principal contractor through the Federal Debarment Listing.
7. Award contract. Each contract subject to Davis -Bacon requirements must include the wage
decision, Form HUD 4010, and the appropriate HUD contract provisions containing the
labor standards clause.
8. If construction has not started within 90 days of award, new wage decision is required.
Building the Project:
Pre - construction meeting (required). Hold a pre - construction conference.
Hold a preconstruction meeting/conference to be attended by: CDBG/HOME Division,
Project contractor, subcontractors, Project Engineers /Architects. At meeting provide the
necessary labor provisions, identify responsibilities, and obtains the proper wage decisions
for all classifications on the job and disseminates information.
➢ Project Engineer /Architect provides the minutes of the meeting for the file.
2. Routine Monitoring
➢ Review Weekly Certified Payroll Records (includes ensuring that proper
classifications are used).
➢ Conduct On -site interviews.
➢ Investigate anything that indicates a possible violation.
Note: Contractor must resolve discrepancies.
➢ Prepare Semi - Annual Labor Standards Enforcement Report Form.
DAVIS -BACON AND RELATED ACTS: Additional Resources
Wage Determinations:
http://,A,ww.access.gpo.gov/davisbacon
Federal Debarment Listing:
http: / /epis.amet.gov
Department of Labor:
http: / /www.dol.gov
HUD:
http: / /www.hud.gov /offices /OLR
HUD Publications:
Labor Relations Desk Guide- LROI.DG-
Making Davis -Bacon Work: A Contractor's Guide to Prevailing Wage Requirements for
Federally - Assisted Construction Projects
Labor Relations Desk Guide- LR04.DG
Making Davis -Bacon Work: A Practical Guide for States, Indian Tribes and Local
Agencies
HUD Forms:
http: / /www.hudelil2s.org/sub nonhud/htmUforms.htm
Federal Regulations:
1. CDBG- Housing and Community Development Act of 1974
2. HOME- National Affordable Housing Act of 1990
3. U.S. Housing Act of 1937
4. National Housing Act of 1949
Federal Labor Standards Provisions U.S. Department of Housing
and Urban Development
Applicability
The Project or Program to which the construction work covered by
this contract pertains is being assisted by the United States of America
and the following Federal Labor Standards Provisions are included in
this Contract pursuant to the provisions applicable to such Federal
assistance.
A. 1. (1) Minimum Wages. All laborers and mechanics employed
or working upon the site of the work (or under the United Slates Hous-
ing Act of 1937 or under the Housing Act of 1949 in the construction
or development of the project), will be paid unconditionally and not
less often than once a week, and without subsequent deduction or re-
bate on any account (except such payroll deductions as are permitted
by regulations issued by the Secretary of Labor under the Copeland
Act (29 CPR Part 3), the full amount of wages and bona fide fringe
benefits (or cash equivalents thereof@ due at time of payment com-
puted at rates not less than those contained in the wage determination
of the Secretary of Labor which is attached hereto and made a part
hereof, regardless of any contractual relationship which may be al-
leged to exist between the contractor and such laborers and mechan-
ics. Contributions made or costs reasonably anticipated for bona fide
fringe benefits under Section 1(b)(2) of the Davis -Bacon Act on be•
half of laborers or mechanics are considered wages paid to such la-
borers or mechanics, subject to the provisions of 29 C1711- 5.5(a)(1)(Iv);
also, regular contributions made or costs incurred for more than a
weekly period (but not less often than quarterly) under plans, funds,
or programs, which cover the particular weekly period, are deemed to
be constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate wage rate
and fringe benefits on the wage determination for the classification of
work actually performed, without regard to skill, except as provided
in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in
more than one classification may be compensated at the rate specified
for each classification for the time actually worked therein: Provided,
That the employer's payroll records accurately set forth the time spent
in each classification In which work is performed. The wage determi-
nation (including any additional classification and wage rates con-
formed under 29 CPR Part 5.5(a)(1)(ii) and the Davis -Bacon poster
(WH -1321) shall be posted at all times by the contractor and its sub-
contractors at the site of the work in a prominent and accessible, place
where it can be easily seen by the workers.
(it) (a) Any class of laborers or mechanics which is not listed In the
wage determination and which is to be employed under the contract
shall be classified in conformance with the wage determination. HUD
shall approve an additional classification and wage rate and fringe
benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not
performed by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction in-
dustry; and
(3) The proposed wage rate, Including any bona fide fringe benefits,
bears a reasonable relationship to the wage rates contained in the wage
determination.
(b) If the contractor and the laborers and mechanics to be employed
in the classification (if known), or their representatives, and HUD or
its designee agree on the classification and wage rate (including the
amount designated for fringe benefits where appropriate), a report of
the action taken shall be sent by HUD or its designee to the Adminis-
trator of the Wage and Hour Division, Employment Standards Admin-
istration, U.S. Department of Labor, Washington, D.C. 20210. The
Administrator, or an authorized representative, will approve, modify,
or disapprove every additional classification action within 30 days of
receipt and so advise HUD or its designee or will notify HUD or its
designee within the 30 -day period that additional time is necessary.
(Approved by the Office of Management and Budget under OMB con-
trol number 1215- 0140.)
(c) In the event the contractor, the laborers or mechanics to be em-
ployed in the classification or their representatives, and HUD or its
designee do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits, where appropri-
ate), HUD or its designee shall refer the questions, including the views
of all interested parties and the recommendation of HUD or its desig-
nee, to the Administrator for determination. The Administrator, or an
authorized representative, will issue a determination within 30 days
of receipt and so advise HUD or its designee or will notify HUD or its
designee within the 30 -day period that additional time is necessary.
(Approved by the Office of Management and Budget under OMB Con-
trol Number 1215 -0140.
(d) The wage rate (including fringe benefits where appropriate) de-
termined pursuant to subparagraphs (1)(b) or (c) of this paragraph,
shall be paid to all workers performing work in the classification un-
der this contract from the first day on which work is performed in the
classification.
(Ili) Whenever the minimum wage rate prescribed in the contract for
a class of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, the contractor shall either pay the benefit
as stated in the wage determination or shall pay another bona fide
fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other
third person, the contractor may consider as part of the wages of any
laborer or mechanic the amount of any costs reasonably anticipated
in providing bona fide fringe benefits under a plan or program, Pro-
vided, That the Secretary of Labor has found, upon the written re-
quest of the contractor, that the applicable standards of the Davis -
Bacon Act have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the meeting of
obligations under the plan or program. (Approved by the Office of
Management and Budget under OMB Control Number 1215- 0140.)
2. Withholding. HUD or its designee shall upon its own action or
upon written request of an authorized representative of the Depart-
ment of Labor withhold or cause to be withheld from the contractor
under this contract or any other Federal contract with the same prime
contractor, or any other Federally- assisted contract subject to Davis -
Bacon prevailing wage requirements, which is held by the same prime
contractor so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including ap-
prentices, trainees and helpers, employed by the contractor or any
subcontractor the full amount of wages required by the contract In the
event of failure to pay any laborer or mechanic, including any appren-
tice, trainee or helper, employed or working on the site of the work
(or under the United States Housing Act of 1937 or under the Housing
Act of 1949 in the construction or development of the project), all or
part of the wages required by the contract, HUD or its designee may,
after written notice to the contractor, sponsor, applicant, or owner,
take such action as may be necessary to cause the suspension of any
further payment, advance, or guarantee of funds until such violations
form H1104010 (2/84)
Previous edition is obsolete Page 1 of 4 ref. Handbook 1344.1
have ceased. HUD or its designee may, after written notice to the
contractor, disburse such amounts withheld for and on account of the
contractor or subcontractor to the respective employees to whom they
are due. The Comptroller General shall make such disbursements in
the case of direct Davis -Bacon Act contracts.
3. (f) Payrolls and basic records. Payrolls and basic records relat.
ing thereto shall be maintained by the contractor during the course of
the work preserved for a period of three years thereafter for all labor.
ers and mechanics working at the site of the work (or under the United
States Housing Act of 1937. or under the Housing Act of 1949, in the
construction or development of the project). Such records shall con.
tain the name, address, and social security number of each such worker,
his or her correct classification, hourly rates of wages paid (including
rates of contributions or costs anticipated for bona fide fringe ben.
efits or cash equivalents thereof of the types described in Section
I(b)(2)(B) of the Davis -bacon Act), daily and weekly number of hours
worked, deductions made and actual wages paid. Whenever the Sec-
retary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages
of any laborer or mechanic include the amount of any costs reason.
ably anticipated in providing benefits under a plan or program de-
scribed In Section I(b)(2)(B) of the Davis -Bacon Act, the contractor
shall maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is financially
responsible, and that the plan or program has been communicated in
writing to the laborers or mechanics affected, and records which show
the costs anticipated or the actual cost Incurred in providing such ben-
efits. Contractors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of ap-
prenticeship programs and certification of trainee programs, the reg.
istration of the apprentices and trainees, and the ratios and wage rates
prescribed in the applicable programs. (Approved by the Office of
Management and Budget under OM B Control Numbers 1215 -0140
and 1215- 0017.)
(if) (a) The contractor shall submit weekly for each week in which
any contract work is performed a copy of all payrolls to HUD or its
designee if the agency is a party to the contract, but if the agency is
not such a party, the contractor will submit the payrolls to the appli-
cant sponsor, or owner, as the case may be, for transmission to HUD
or its designee. The payrolls submitted shall set out accurately and
completely all of the information required to be maintained under 29
CPR Part5.5(a)(3)(i). This information may be submitted in any form
desired. Optional Form WH -347 is available for this purpose and
may be purchased from the Superintendent of Documents (Federal
Stock Number 029- 005- 00014 -1), U.S. Government Printing Office,
Washington, DC. 20402. The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors. (Approved by
the Off ice of Management and Budget under OMB Control Number
1215- 0149.)
(b) Each payroll submitted shall be accompanied by a "Statement of
Compliance;' signed by the contractor or subcontractor or his or her
agent who pays or supervises the payment of the persons employed
under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information
required to be maintained under 29 CFR Part 5.5 (a)(3)(i) and that
such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice,
and trainee) employed on the contract during the payroll period has
been paid the full weekly wages earned, without rebate, either di-
rectly or indirectly, and that no deductions have been made either
directly or Indirectly from the full wages earned, other than permis.
sible deductions as set forth in 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for the
classification of work performed, as specified in the applicable wage
determination incorporated into the contract.
(c) The weekly submission of a properly executed certification set
forth on the reverse side of Optional Form WH -347 shall satisfy the
requirement for submission of the "Statement of Compliance" required
by paragraph A.3.(ii)(b) of this section.
(d) The falsification of any of the above certifications may subject
the contractor or subcontractor to civil or criminal prosecution under
Section 1001 of Title 18 and Section 231 of Title 31 of the United
States Code.
(Ili) The contractor or subcontractor shall make the records required
under paragraph A.3.(i) of this section available for inspection, copy-
ing, or transcription by authorized representatives of HUD or its des-
ignee or the Department of Labor, and shall permit such representa-
tives to interview employees during working hours on the job. If the
contractor or subcontractor fails to submit the required records or to
make them available, HUD or its designee may, after written notice to
the contractor, sponsor, applicant or owner, lake such action as may
be necessary to cause the suspension of any further payment advance,
or guarantee of funds. Furthermore, failure to submit the required
records upon request or to make such records available may be grounds
for debarment action pursuant to 29 CFR Part 5.12.
4. Apprentices and Trainees.
(f) Apprentices. Apprentices will be permitted to work at less than
the predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide ap-
prenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Bureau of Apprenticeship
and Training, or with a State Apprenticeship Agency recognized by
the Bureau, or if a person is employed in his or her first 90 days of
probationary employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but who
has been certified by the Bureau of Apprenticeship and Training or a
State Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice. The allowable ratio of
apprentices to journeymen on the job site in any craft classification
shall not be greater than the ratio permitted to the contractor as to the
entire work force under the registered program. Any worker listed on
a payroll at an apprentice wage rate, who is not registered or other-
wise employed as staled above, shall be paid not less than the appli-
cable wage rate on the wage determination for the classification of
work actually performed. In addition, any apprentice performing work
on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed. Where a con-
tractor is performing construction on a project in a locality other than
that in which its program is registered, the ratios and wage rates (ex-
pressed in percentages of the journeyman's hourly rate) specified in
the contractor's or subcontractor's registered program shall be ob-
served. Every apprentice must be paid at not less than the rate speci-
fied in the registered program for the apprentice's level of progress,
expressed as a percentage of the journeymen hourly rate specified in
the applicable wage determination. Apprentices shall be paid fringe
benefits in accordance with the provisions of the apprenticeship pro-
gram. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on
the wage determination for the applicable classification. If the Ad-
ministrator determines that a different practice prevails for the appli.
cable apprentice classification, fringes shall be paid in accordance
form HUD -4010 (2184)
Previous edl8on Is obsolete Page 2 of 4 ref. Handbook 1344.1
with that determination. In the event the Bureau of Apprenticeship
and Training, or a State Apprenticeship Agency recognized by the
Bureau, withdraws approval of an apprenticeship program, the con-
tractor will no longer be permitted to utilize apprentices at less than
the applicable predetermined rate for the work performed until an
acceptable program is approved.
(if) Trainees. Except as provided in 29 CFR 5.16, trainees will not
be permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant ',to and individually
registered in a program which has received prior approval, evidenced
by formal certification by the U.S. Department of Labor, Employ-
ment and Training Administration. The ratio of trainees to journey-
men on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Every
trainee must be paid at not less than the rate specified in the approved
program for the trainee's level of progress, expressed as a percentage
of the journeyman hourly rate specified in the applicable wage deter-
mination. Trainees shall be paid fringe benefits in accordance with
the provisions of the trainee program. If the trainee program does not
mention fringe benefits, trainees shall be paid the full amount of fringe
benefits listed on the wage determination unless the Administrator of
the Wage and Hour Division determines that there is an apprentice-
ship program associated with the corresponding journeyman wage rate
on the wage determination which provides for less than full fringe
benefits for apprentices. Any employee listed on the payroll at a trainee
rate who is not registered and participating in a training plan approved
by the Employment and Training Administration shall be paid not less
than the applicable wage rate on the wage determination for the work
actually performed. In addition, any trainee performing work on the
job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage deter-
mination for the work actually performed. In the event the Employ-
ment and Training Administration withdraws approval of a training
program, the contractor will no longer be permitted to utilize trainees
at less than the applicable predetermined rate for the work performed
until an acceptable program is approved.
(fit) Equal employment opportunity. The utilization of appren-
tices, trainees and journeymen under this part shall be in conformity
with the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CPR Part 30.
5. Compliance with Copeland Act requirements. The contractor
shall comply with the requirements of 29 CPR Part 3 which are incor-
porated by reference in this contract
6. Subcontracts. The contractor or subcontractor will insert in any
subcontracts the clauses contained in 29 CPR 5.5(a)(1) through (10)
and such other clauses as HUD or its designee may by appropriate
instructions require, and also-a clause requiring the subcontractors to
include these clauses in any lower tier subcontracts. The prime con-
tractor shall be responsible for the compliance by any subcontractor
or lower tier subcontractor with ail the contract clauses in 29 CFR
Part 5.5.
7. Contract termination; debarment. A breach of the contract
clauses in 29 CPR 5.5 may be grounds for termination of the contract
and for debarment as a contractor and a subcontractor as provided in
29 CPR 5.12.
8. Compliance with Davis -Bacon and Related Act Requirements. All
rulings and interpretations of the Davis -Bacon and Related Acts con-
tained in 29 CFR Parts 1, 3, and 5 are herein incorporated by refer-
ence in this contract
9. Disputes concerning labor standards. Disputes arising out of
the labor standards provisions of this contract shall not be subject to
the general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of La-
bor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning
of this clause include disputes between the contractor (or any of its
subcontractors) and HUD or Its designee, the U.S. Department of La-
bor, or the employees or their representatives.
10. (f) Certification of Eligibility. By entering into this contract
the contractor certifies that neither it (nor he or she) nor any person or
firm who has an interest in the contractor's firm is a person or firm
ineligible to be awarded Government contracts by virtue of Section
3(a) of the Davis -Bacon Act or 29 CPR 5.12(a)(1) or to be awarded
HUD contracts or participate in HUD programs pursuant to 24 CPR
Part 24.
(if) No part of this contract shall be subcontracted to any person or
firm ineligible for award of a Government contract by virtue of Sec-
tion 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded
HUD contracts or participate in HUD programs pursuant to 24 CPR
Part 24.
(iii) The penalty for making false statements is prescribed in the U.S.
Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code,
Section 1 01 0, Title 18, U.S.C., "Federal Housing Administration
transactions ", provides in part: "Whoever, for the purpose of ... in-
fluencing in any way the action of such Administration..... makes,
utters or publishes any statement knowing the same to be false.....
shall be fined not more than $5,000 or imprisoned not more than two
years, or both."
11. Complaints, Proceedings, or Testimony by Employees. No
laborer or mechanic to whom the wage, salary, or other labor stan-
dards provisions of this Contract are applicable shall be discharged or
in any other manner discriminated against by the Contractor or any
subcontractor because such employee has filed any complaint or in-
stituted or caused to be instituted any proceeding or has testified or is
about to testify in any proceeding under or relating to the labor stan-
dards applicable under this Contract to his employer.
B. Contract Work Hours and Safety Standards Act. As used in
this paragraph, the terms "laborers" and "mechanics" include watch-
men and guards.
(1) Overtime requirements. No contractor or subcontractor con-
tracting for any part of the contract work which may require or in-
volve the employment of laborers or mechanics shall require or per-
mit any such laborer or mechanic in any workweek in which he or she
is employed on such work to work in excess of eight hours in any
calendar day or in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less than one
and one-half times the basic rate of pay for all hours worked in excess
of eight hours in any calendar day or in excess of forty hours in such
workweek, whichever is greater.
(2) Violation; liability for unpaid wages; liquidated damages. In
the event of any violation of the clause set forth in subparagraph (1)
of this paragraph, the contractor and any subcontractor responsible
therefor shall be liable for the unpaid wages. In addition, such con-
tractor and subcontractor shall be liable to the United States (in the
case of work done under contract for the District of Columbia or a
territory, to such District or to such territory), for liquidated dam-
ages.. Such liquidated damages shall be computed with respect to
each individual laborer or mechanic, including watchmen and guards,
employed in violation of the clause set forth in subparagraph (1) of
this paragraph, in the sum of $10 for each calendar day on which such
individual was required or permitted to work in excess of eight hours
or in excess of the standard workweek of forty hours without payment
of the overtime wages required by the clause set forth in sub para-
graph (1) of this paragraph.
form HUD4010 (2/84)
Previous edition Is obsolete Page 3 of 4 ref. Handbook 1344.1
(3) Withholding for unpaid wages and liquidated damages. HUD
or its designee shall upon its own action or upon written request of an
authorized representative of the Department of Labor withhold or cause
to be withheld, from any moneys payable on account of work per-
formed by the contractor or subcontractor under any such contract or
any other Federal contract with the same prime contract, or any other
Federally - assisted contract subject to the Contract Work Hours and
Safety Standards Act which is held by the same prime contractor such
sums as may be determined to be necessary to satisfy any liabilities
of such contractor or subcontractor for unpaid wages and liquidated
damages as provided in the clause set forth in subparagraph (2) of this
paragraph.
(4) Subcontracts. The contractor or subcontractor shall insert in any
subcontracts the clauses set forth in subparagraph (1) through (4) of
this paragraph and also a clause requiring the subcontractors to in-
clude these clauses in any lower tier subcontracts. The prime con-
tractor shall be responsible for compliance by any subcontractor or
lower tier subcontractor with the clauses set forth in subparagraphs
(1) through (4) of this paragraph.
C. Health and Safety
(1) No laborer or mechanic shall be required to work in surroundings
or under working conditions which are unsanitary, hazardous, or dan-
gerous to his health and safety as determined under construction safely
and health standards promulgated by the Secretary of Labor by regu-
lation.
(2) The Contractor shall comply with all regulations issued by the
Secretary of Labor pursuant to Title 29 Part 1926 (formerly part 151
8) and failure to comply may result in imposition of sanctions pursu-
ant to the Contract Work Hours and Safety Standards Act (Public Law
91 -54, 83 Stat 96).
(3) The Contractor shall include the provisions of this Article in ev-
ery subcontract so that such provisions will be binding on each sub-
contractor. The Contractor shall take such action with respect to any
subcontract as the Secretary of Housing and Urban Development or
the Secretary of Labor shall direct as a means of enforcing such pro-
visions.
form HUD4010 (2184)
Previous edition Is obsolete Page 4 of 4 ref. Handbook 1344.1