HomeMy WebLinkAboutord2022-091Whatcom County COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
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• 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. 2022-091
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
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 remains committed to training 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
2021 flood events impeded the County Departments from attending to the related issues of
administration of the 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 her�W'46h�c) 66415,provided for in Exhibit A attached hereto.
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0 C;TY �� `:. WHATCOM COUNTY COUNCIL
ATTEST r; �m�r _ ., WHAT M C LINTY, W SHINGTON
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Dana Browd-Dav'is;.U4,W t1ie.Councd: Todd onovan, Council Chair
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WHATCOM COUNTY EXECUTIVE
APPROVED AS TO FORM: WHATCOM COUNTY, WAS INGTON
Approved Via Email-KF/EK S'ZtII—C LXL.
Civil Deputy Prosecutor Satpal Sidh , County Executive
( Approved
Date Signed: /.� I G�
) Denied
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.
3.72.010 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. "Registered apprenticeship program" means an apprenticeship training program 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, or joint
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.
F. "Contractor Apprenticeship Program (CAP)" refers to the requirements of this chapter and any
administrative regulations applicable thereto.
G. "CAP coordinator" refers to the person designated by the County Executive to administer and
coordinate the CAP.
H. "CAP Utilization Plan" refers to the description of how the contractor will meet or exceed
apprentice labor hours as required by this Chapter.
I. "Cost estimate" shall mean the anticipated cost of a public work project, as determined by the
County Engineer, based upon the expected costs of materials, supplies, equipment, and labor,
but excluding taxes and contingency funds.
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, orjoint
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).
3.72.020 Minimum apprentice labor hours required for public work.
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 July 1, 2023, there shall be no requirement;
3. For contracts advertised for bid 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 for bid 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).
3.72.030 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 construction projects subject to this chapter shall include
provisions detailing the apprentice labor requirements. The CAP 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 a CAP Utilization Plan and shall
meet with the CAP Coordinator to review said CAP Utilization Plan prior to being issued a notice
to proceed. Failure to submit a CAP 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 CAP coordinator prior to issuance of a notice to proceed shall be excused with
administrative approval only when the CAP coordinator is unavailable to meet prior to the
scheduled date for issuance of the notice to proceed and the contractor and the CAP
coordinator have otherwise scheduled a meeting for the coordinator to review the contractor's
plan. The contractor shall be responsible for meeting the CAP 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 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 Utilization Plan.
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 CAP Utilization Plan shall meet the following requirements:
1. Shall be submitted on forms prepared or approved by the CAP 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 CAP 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.
3.72.050 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, the 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;
B. In order to meet the requirement, the contractor will be forced to displace
members of its workforce;
C. 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 requirements;
D. The reasonable and necessary requirements of the contract render apprentice
utilization infeasible at the required levels;
E. There exists a disproportionately high ratio of material costs to labor hours, which
does not make feasible the required minimum level of apprentice participation;
F. The contractor or the agency has demonstrated that meeting the requirements
would significantly delay an urgent public work project; or
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. Apprentice labor hour goals are in conflict with funding agreements in place,
including state and federal funded projects, in connection with public work; or
B. 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.
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, veterans, and women; and assessing whether the contractor has complied with the
apprenticeship requirement established in its contract. (Ord. 2019-079 Exh. A).
3.72.070 Reporting.
The County Executive shall report to the County Council 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 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 to journey
level during the reporting year;
F. All exceptions and waivers granted under WCC 3.72.050 as well as any contractors who have
violated the requirements in this chapter; and
G. Recommendations 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 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. 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.