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HomeMy WebLinkAboutord2022-091 - StrikeWhatcom County COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360) 778-5010 Agenda Bill Master Report File Number: AB2022-673 File ID: AB2022-673 Version: 1 Status: Adopted File Created: 11/10/2022 Entered by: SDraper@co.whatcom.wa.us Department: Public Works File Type: Ordinance Requiring a Public Hearing Department Assigned to: Council Final Action: 12/06/2022 Agenda Date: 12/06/2022 Enactment #: ORD 2022-091 Primary Contact Email: sdraper@co.whatcom.wa.us TITLE FOR AGENDA ITEM: Ordinance amending Whatcom County Code Chapter 3.72 (Construction Projects -Apprenticeship Requirements) to extend the start dates and enhance the requirements for utilization of the contractor apprenticeship program SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: See memo HISTORY OF LEGISLATIVE FILE Date: Acting Body: Action: Sent To: 11/22/2022 Council INTRODUCED FOR PUBLIC Council HEARING Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Frazey, Galloway, and Kershner Nay: 0 Absent: 0 12/06/2022 Council ADOPTED Aye: 6 Buchanan, Byrd, Donovan, Elenbaas, Frazey, and Galloway Nay: 0 Absent: 1 Kershner Whatcom County Page 1 Printed on 121712022 Agenda Bill Master Report Continued (AB2022-673) Attachments: Revised Staff Memo, Proposed Ordinance, Exhibit A - Strike Version, Exhibit A, Sample Tracking Sheet, Notice of Hearing after 11.22.2022.pdf Whatcom County Page 2 Printed on 121712022 PROPOSED BY: Public Works - Engineering INTRODUCTION DATE: ORDINANCE NO. .1111111l4 _'_' M iM4 . ;• u WHEREAS, on November 19, 2019, Whatcom County Council adopted Ordinance 2019-079 establishing apprenticeship utilization requirements for publicly funded construction projects; and WHEREAS, the Whatcom County Council +s-remains committed to training ef-the next generation of skilled workers and urges the timely implementation of this ordinance; and WHEREAS, the unexpected demands placed on the County by the pandemic and Dee 2021 flood events impeded Publie W6F'Esthe County Departments from attending to the related issues of administration of the new ordinance, requiring more time for implementation - WHEREAS amending this ordinance to provide additional time for implementation gives Whatcom County the opportunity to strengthen its apprenticeship utilization requirements supporting local workers providing more opportunities for apprentices and affirming our shared commitment to responsible bids on all publicly funded projects; NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that Chapter 3.72 of the Whatcom County Code is hereby amended as provided for in Exhibit A attached hereto. ADOPTED this day ATTEST: Dana Brown -Davis, Clerk of the Council APPROVED AS TO FORM: Civil Deputy Prosecutor 2022. WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Todd Donovan, Council Chair WHATCOM COUNTY EXECUTIVE WHATCOM COUNTY, WASHINGTON Satpal Sidhu, County Executive ( ) Approved ( ) Denied Date Signed: EXHIBIT A Chapter 3.72 CONSTRUCTION PROJECTS — APPRENTICE REQUIREMENTS Sections: 3.72.010 Definitions. 3.72.020 Use of apprentices required for public works. 3.72.030 Administration. 3.72.040 EAP utilization plan. 3.72.050 Exceptions and waivers. 3.72.060 Monitoring. 3.72.070 Reporting. 3.72.080 Remedies. 3.72.090 Emergencies. 3.72.10 Definitions. Where used in this chapter, unless the context clearly requires otherwise, the following terms shall have the meaning and construction set forth herein: A. "Apprentice" means an apprentice registered in an approved apprenticeship program. B. "Approved Registered apprenticeship program" means an apprenticeship training program whieh that is approved or recognized by the Washington State Apprenticeship and Training Council or the Federal Agency Apprenticeship Programs. C. "Contractor" means a person, corporation, partnership, limited liability company, orjoint venture entering into a contract with the county to construct a public work. D. "Labor hours" refers to the total number of hours worked by workers receiving an hourly wage who are employed directly and by subcontractors upon the public works project and who are subject to state or federal prevailing wage requirements, and shall include additional hours worked as a result of a contract or project adjustment or pursuant to an agreed -upon change order. E. "Minimum apprentice labor hours" refers to labor hours actually worked on a public works project by apprentices expressed as a percentage of total labor hours. The minimum r,,,r,.,,"+age 2024 1, theFe be 3. For contracts , shall He requiFement; adveolisseed- fe-Ir bide en or after january 1, 20241, to $32,000,000 eF estimated eest mere, no less than 10 ef the labor hA,-r.; shall be by 4. percent performed bid januaFy T^oF centFalTTadvertisedfer $2 nnn nnn e On OF afteF SZVL5Zestimated TeCqSC weFe, r, less than 12 nt of the la heu.r_ be d by ems; FE)F p -her Shall perf.,rr. e for bid- An jaHHaFY 1, 20263, to :5. contracts $ nnn nnn . adveFtised- or after estimated eo-A Fnere, o less than 15 of the IabE)F hews shall he by apprentices. percent performed E. F. "€mpleyee Contractor aApprenticeship pErogram (! ;AP)" refers to the requirements of this chapter and any administrative regulations applicable thereto. G. "i ! AP coordinator" refers to the person designated by the a ounty eExecutive to administer and coordinate the employee agenticeship egraF CAP. H. "M AP Utilization utilizat+en pPlan" refers to the plan fOF Utilizadescription of howth_e- contractor will meet or exceed apprentices,4+p labor hours as required by this Chapter. I. "Estimated Cost estimate" shall mean the anticipated cost of a public work rp oiect, as determined by the c-County Engineer, based upon the expected costs of materials, supplies, equipment, and labor, but excluding taxes and contingency funds. Estimated cost does not J. "Notice to proceed" refers to the written authorization to the contractor under the public work contract to commence work. K. "Public work" refers to all county funded construction projects that constitute a public work pursuant to RCW 39.04.010 as now or hereafter amended and estimated to cost $1,000,000 or more. L. "Subcontractor" means a person, corporation, partnership, limited liability company, or joint venture that has contracted with the contractor to perform all or part of the work to construct a public work by a contractor. (Ord. 2019-079 Exh. A). 3.72.20 Minimum apprentice labor hours Use of apprentices required for public works. Apprentices shall be utilized on the construction of all public works in accordance with this chapter. The minimum percentage of apprentice labor hours by project shall be: 1. For contracts less than $1,000,000 there shall be no requirement; 2. For contracts advertised for bid before Julv 1, 2023, there shall be no requirement; 3. For contracts advertised forbid on or after July 1, 2023, with total cost of $3,000,000 or more, no less than 10 percent of the labor hours shall be performed by apprentices; 4. For contracts advertised forbid on or after January 1, 2024, with a total cost of $1,000,000 or more, no less than 15 percent of the labor hours shall be performed by apprentices. (Ord. 2019- 079 Exh. A). 3.72.30 Administration. A. Apprenticeship Program Goal. All contractors and subcontractors constructing or involved with the construction of public works, and all service providers involved with the construction of a public work, shall ensure that the combined minimum apprentice labor hours applicable for the size and bid date of the contract are performed by apprentices and meet all requirements of this chapter. B. Contract Requirements. Contracts for see# construction projects subject to this chapter shall include provisions detailing the apprentice labor requirements. The €C:AP coordinator shall develop the necessary bid documents and contract specification language to implement the requirements of this chapter. Contracts shall not be intentionally underestimated or fragmented to avoid the requirements of this chapter. C. Submission of CAP Utilization Plan. All contractors shall submit an FCAP ttUtilization pElan and shall meet with the 1 CAP c-Coordinator to review said i � AP Utttilization pElan prior to being issued a notice to proceed. Failure to submit a441 i AP utilization plan may be grounds for the county to withhold remittance of a progress payment until such plan is received from the responsible contractor. A meeting with the _(AP coordinator prior to issuance of a notice to proceed shall be excused with administrative approval only when the ! t AP coordinator is unavailable to meet prior to the scheduled date for issuance of the notice to proceed and the contractor and the ' AP coordinator have otherwise scheduled a meeting for the coordinator to review the contractor's plan. The contractor shall be responsible for meeting the ( AP utilization goal requirements of the contract, including all amendments and change orders thereto, and shall be responsible for overall compliance for all hours worked by subcontractors. To the extent practical, the contractor shall recruit apprentices from multiple trades or crafts. - Apprentices utilized in accordance with this chapter must be enrolled in a State or Federal registered apprenticeship program (Ord. 2019-079 Exh. A). D. Bid specifications for construction projects that are subject to minimum apprentice labor hours requirement shall include a responsible bidder -criterion that allows the purchasing manager to find a bidder non -responsive if the bidder fails to meet the requirements under WCC 3.72.020. 3.72.040 €CAP uUtilization p.Elan. Contractors shall submit a CAP Utilization Plan when the cost estimate of a public work meets thresholds established in WCC 3.72.020. A. The FCAP ttUtilization p.Elan shall meet the following requirements: 1. Shall be submitted on forms prepared or approved by the !.(AP coordinator; 2. Shall specify the planned labor hours for each trade or craft; 3. Shall provide for quarterly reports, as well as a final report, indicating the total labor hours and the apprenticeship hours utilized by the contractor and all subcontractors on the project; and 4. Shall include a description of how the contractor will satisfy the '. I AP utilization goal on the particular public work project and include a summary of outreach and recruitment procedures to hire apprentices to work on the project. (Ord. 2019-079 Exh. A). B. CAP Utilization Plan must be approved by CAP Coordinator. C. Contractors may submit an amended CAP Utilization Plan if changed conditions or circumstances affect the method or schedule of the contractor's previously submitted plan to meet the apprenticeship program goal. D. Failure to meet minimum apprentice labor hours requirements or targets outlined in the approved CAP Utilization Plan may be deemed a breach of contract under WCC 3.72.080. 3.72.50 Exceptions and waivers. At any time prior to a request for bids or proposals on construction projects covered by this chapter, or at any time during the term of a covered contract this , the c-County may reduce or waive the apprentice labor hour goals upon determination by the CAP Coordinator for ether 1. or 2. below: 1. At least two of the below conditions are met and documented: A The contractor has demonstrated that it has utilized best efforts to meet the established percentage requirement but remains unable to fulfill the goal; 43- In order to meet the requirement, the contractor will be forced to displace members of its workforce; The contractor or agency has demonstrated that it has contacted multiple State or Federal registered apprenticeship programs, yet an insufficient number of apprentices are available to meet the €CAP utilization gea-6requirements; C. C—D. The reasonable and necessary requirements of the contract render apprentice utilization infeasible at the required levels; i, There exists a disproportionately high ratio of material costs to labor hours, which does not make feasible the required minimum level of apprentice participation; or E. The contractor or the agency has demonstrated that meeting the requirements would significantly delay an urgent public work proiect.TheFe aFe no evening ^'asses F. G. For other reasons deemed appropriate by the County Executive, and not inconsistent with the purpose and goals of this chapter. (Ord. 2019-079 Exh. A). 2. One of the following conditions is met and documented: A. To the ^Ae.mt that ^Apprentice labor hour goals are in conflict with funding agreements in place, including state and federal aid funded projects, in connection with toe public work; of A. The contractor or the agency has demonstrated that meeting the requirements would significantly delay an urgent public work related to a local, state, or federally declared emergency; or B. F. FE th r Feasens de rned aPPFE)PFiate by the ,.E „nt y E,,,,eutive and approved by the County Council and net in iste t with the PUFPese and goals ofthisEhapteF 3.72.060 Monitoring. The county shall implement a system for monitoring the actual use of apprentices in construction projects subject to this chapter. Such monitoring shall include identifying individual apprentices by name and Washington State or Federal apprenticeship registration number; reviewing documents provided by the contractor showing total apprentice labor hours; determining the apprentice hours worked by minorities, disadvantaged yeutI4 veterans, and women, and, as available, peFseps with disabilities and assessing whether the contractor has complied with the apprenticeship requirement established in its contract. (Ord. 2019-079 Exh. A). 3.72.70 Reporting. The c-County eExecutive shall report to the eCounty eCouncil annually upon the use of apprentices for public work projects. The report shall include, to the extent it is available: A. The percentage of labor hours actually worked by apprentices on each project and the total number of labor hours on each project; B. The number of apprentices by contractor broken down by trade and craft category; C. The number and percentage of minorities, veterans, and women,, peFseRs with d;I;^".I.*,Pr ;;n disadvantaged ye*t4 utilized as apprentices on each project; D. The number of new apprentices indentured during the reporting year as a result of the county's apprenticeship requirements; E. The percentage of apprentices in training on county projects who have graduated tojourney level during the reporting year; a -PA F. All exemptions exceptions and waivers granted under WCC 3.72.050 as well as any contractors who have violated the requirements in this chapter; and F-G.Recommen dations for maintaining enhancing or otherwise amending the existing minimum apprentice labor hours required for public work under WCC 3.72.020 and the exceptions and waivers under WCC 3.72.050. (Ord. 2019-079 Exh. A). 3.72.080 Remedies. Failure by a contractor to comply with established apprenticeship requirements, unless otherwise waived or excused in writing by the county executive or CAP Coordinator pursuant to WCC 3.72.050, shall be deemed a breach of contract for which the county shall be entitled to all remedies allowed by law and under the contract. Failure to comply with the apprenticeship requirements may also be considered evidence bearing on a contractor's qualification for award of future contracts with the county. Contractors who are found to knowingly violate the requirements under this chapter twice shall be deemed ineligible to bid for County projects for -at least one year and added to a list maintained by the CAP Coordinator (Ord. 2019-079 Exh. A). 3.72.090 Emergencies. This chapter shall not apply in the event of an emergency emergenc-y. For the purposes of this section, "emergency" means unforeseen circumstances beyond the control of the county that either: (A) present an immediate threat to the proper performance of essential functions; or (B) will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken. (Ord. 2019-079 Exh. A). 3.72.100 Severability. The provisions of this chapter shall be effective in all cases unless otherwise provided by federal or state law. The provisions of this chapter are separate and severable. The invalidity of any clause sentence paragraph, subdivision, section or other portion of this chapter or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this chapter or the validity of the application to other persons or circumstances.