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(a) Role of OEWD. OEWD is authorized to enforce all terms of this Policy. Awarding Departments shall work cooperatively with OEWD to implement requirements of this Policy, to include the provisions of the Policy in every contract for which inclusion is required, to assist Contractors and Subcontractors in complying with the Policy, and to assist OEWD in furthering the purposes of the Policy through monitoring and enforcement activities. OEWD shall determine the records required to be verified and/or provided by Contractors and Subcontractors to establish workers’ qualifications and status relevant to this Policy.
(b) Role of Community-Based Partners. OEWD shall be authorized to engage its community-based partners in the City’s workforce development system to assist with the recruitment and retention of Targeted Workers. OEWD shall, through the existing Workforce Investment Board, provide a forum for community members, community-based organizations, and representatives of all stakeholders affected by or interested in this Policy to exchange information and ideas and to advise OEWD staff concerning the operation and results of the Policy.
(c) Recordkeeping. Each Contractor and Subcontractor shall keep, or cause to be kept, for a period of four years from the date of substantial completion of Project Work on a Covered Project, certified payroll and basic records, including time cards, tax forms, and superintendent and foreman daily logs, for all workers within each trade performing work on the Covered Project. Such records shall include the name, address and social security number of each worker who worked on the Covered Project, his or her classification, a general description of the work each worker performed each day, the Apprentice or journey-level status of each worker, daily and weekly number of hours worked, the self-identified race, gender, and ethnicity of each worker, whether or not the worker was a Local Resident or Disadvantaged Worker, and the referral source or method through which the Contractor or Subcontractor hired or retained that worker for work on the Covered Project (e.g., core workforce, name call, union hiring hall, City-designated referral source, or recruitment or hiring method). Contractors and Subcontractors may verify that a worker is a Local Resident through the worker’s possession of a valid SF City ID Card or other government-issued identification. OEWD and Awarding Departments may require additional records to be kept with regard to Contractor or Subcontractor compliance with this Policy. All records described in this section shall at all times be open to inspection and examination by the duly authorized officers and agents of the City, including representatives of the Awarding Department and the OEWD.
(d) Reporting. The OEWD shall establish reporting procedures for Contractors and Subcontractors to submit to OEWD and the Awarding Department the records described above, for purposes of monitoring compliance with and effectiveness of this Policy and monitoring operation of the City’s public construction sector for other valid purposes. All records submitted by Contractor or Subcontractor shall be accompanied by a statement of compliance signed by an authorized representative of Contractor or Subcontractor indicating that the records are correct and complete.
(e) Monitoring. From time to time and in its sole discretion, OEWD and/or the Awarding Department may monitor and investigate compliance of Contractor and Subcontractors working on Covered Projects with requirements of this Policy. OEWD and Awarding Departments shall have the right to engage in random inspections of job sites, subject to construction schedule and safety concerns. Each Contractor and Subcontractor shall allow representatives of OEWD and the Awarding Department, in the performance of their duties, to engage in random inspections of job sites and to have access to the employees of the Contractor and Subcontractor and the records required to be kept by this Policy. The OEWD shall establish an administrative procedure for OEWD monitoring of compliance with this Policy and to address allegations of noncompliance. The OEWD shall have sole authority over the administration of this procedure. Except as prohibited by law, OEWD will make data collected under subsections 82.8(c) and (d) of this Policy available on-line to the public in real-time and create a process for members of the public to submit complaints regarding alleged violations of this Policy. The OEWD shall investigate all complaints filed by members of the public; the scope, methods, and conclusions of all such complaint-driven investigations shall be within the discretion of OEWD, with no right of the complaining party to determine the scope or methods of the investigation. All Contractors, Subcontractors, and Awarding Departments shall cooperate fully with OEWD in monitoring and compliance activities. OEWD may interview, either at the worksite or elsewhere, any witness who may have information related to a complaint.
(f) Compliance Procedures.
(1) Consequences of Noncompliance. Awarding Departments and OEWD have the authority to seek for violations of this Policy all of the consequences imposed by or described in this Policy, in the contract for a Covered Project, or by statute, including the authority to assess penalties as described herein, assess damages for other violations of terms of this Policy, and/or seek penalties set forth in Article V of Chapter 6 of the Administrative Code, including debarment.
(2) Penalties Amount. Any Contractor or Subcontractor who fails to satisfy Local Hiring Requirements of this Policy applicable to Project Work Hours performed by Local Residents shall forfeit to the City, and, in the case of any Subcontractor so failing, the Contractor and Subcontractor shall jointly and severally forfeit to the City, an amount equal to the journeyman or Apprentice prevailing wage rate, as applicable, with such wage as established by the Board of Supervisors or the California Department of Industrial Relations under subsection 6.22(e)(3) of the Administrative Code, for the primary trade used by the Contractor or Subcontractor on the Covered Project for each hour by which the Contractor or Subcontractor fell short of the Local Hiring Requirement. The assessment of penalties under this subsection 82.8(f) shall not preclude the City from exercising any other rights or remedies to which it is entitled.
(3) Assessment of Penalties.
(A) For a Covered Project undertaken by a Contractor with the City where the City makes payments directly to the Contractor(s) using City funds, it shall be the duty of the Awarding Department, when certifying to the Controller any payment which may become due under a contract, to deduct from said payment or payments the total amount of penalties due under this subsection 82.8(f). In doing so, the department head must also notify OEWD of his or her action. OEWD may also upon written notice to the Awarding Department, certify to the Controller any forfeiture to deduct from any payment as provided for in this subsection 82.8(f). Certification of forfeitures under this subsection 82.8(f) shall be made only upon an investigation by the Awarding Department or OEWD and upon written notice to the Contractor or Subcontractor identifying the grounds for the forfeiture or forfeitures, and providing the Contractor or Subcontractor with the opportunity to respond according to the procedures prescribed in subsection 82.8(f)(4). The Controller, in issuing any warrant for any such payment, shall deduct from the amount which would otherwise be due on said payment or payments the amount of said forfeiture or forfeitures as so certified. Any retainage to cover contract performance that may become due to Contractor under subsection 6.22(j) of the Administrative Code may be withheld by the City pending a determination by the Awarding Department or OEWD as to whether a Contractor or Subcontractor must pay a penalty or penalties.
(B) For any other Covered Project for which Local Hiring Requirements are required under this Chapter 82, OEWD shall determine whether a Contractor and/or any Subcontractor has failed to comply with the Local Hire Requirement. If after conducting an investigation, OEWD determines that a violation has occurred, it shall issue and serve an assessment of penalties to the Contractor and/or any Subcontractor that sets forth the basis of the assessment and orders payment of penalties in the amounts equal to the journeyman or apprentice prevailing wage rates, as applicable, for the primary trade used by the Contractor or Subcontractor on the Covered Project for each hour by which the Contractor or Subcontractor fell short of the Local Hiring Requirement. Assessment of penalties under this subsection 82.8(f)(3)(B) shall be made only upon an investigation by OEWD and upon written notice to the Contractor or Subcontractor identifying the grounds for the penalty and providing the Contractor or Subcontractor with the opportunity to respond pursuant to the procedures prescribed in subsection 82.8(f)(4).
(C) For Covered Projects under subsection 82.4(b) where the construction contract is issued by an entity or individual other than the City, and that entity or individual includes such requirements in a construction contract for a Covered Project and reasonably cooperates with the City in any enforcement action of such requirements, the entity or individual shall not be in breach of its contract with the City due to the failure of a Contractor or Subcontractor to comply. Provided that the entity or individual who issues the construction contract complies with the provisions in the previous sentence, any enforcement action by the City, through OEWD or otherwise, shall be directly against the Contractor or Subcontractor that failed to apply the Local Hire Requirements. Nothing in this Chapter 82 shall limit the remedies available to a City department, as set forth in the applicable sales contract or lease, for a purchaser’s or tenant’s failure to require compliance with this Chapter 82 in a construction contract for a Covered Project or to reasonably cooperate with the City in any enforcement action as set forth above.
(4) Recourse Procedure. If the Contractor or Subcontractor disagrees with the assessment of penalties as so provided in this subsection 82.8(f), then the following procedure applies:
(A) The Contractor or Subcontractor may request a hearing in writing within 15 days of the date of the final notification of assessment. The request shall be directed to the City Controller. Failure by the Contractor or Subcontractor to submit a timely, written request for a hearing shall constitute concession to the assessment and the forfeiture shall be deemed final upon expiration of the 15-day period. The Contractor or Subcontractor must exhaust this administrative remedy prior to commencing further legal action.
(B) Within 15 days of receiving a proper request, the Controller shall appoint a hearing officer with knowledge and not less than five years’ experience in labor law, and shall so advise the enforcing official and the Contractor or Subcontractor, and/or their respective counsel or authorized representative.
(C) The hearing officer shall promptly set a date for a hearing. The hearing must commence within 45 days of the notification of the appointment of the hearing officer and conclude within 75 days of such notification unless all parties agree to an extended period.
(D) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision affirming, modifying, or dismissing the assessment. The decision of the hearing officer shall consist of findings and a determination. The hearing officer’s findings and determination shall be final.
(E) The Contractor or Subcontractor may appeal a final determination under this Section 82.8 only by filing in the San Francisco Superior Court a petition for a writ of mandate under California Code of Civil Procedure Section 1084 et seq., as applicable and as may be amended from time to time.
(5) Remedies for Non-Compliance with Penalty Assessments. No later than 30 days after receipt of a final assessment of penalties by OEWD or, in the case of an appeal, after an adverse final determination by a hearing officer, the Contractor and/or Subcontractor shall comply with the assessment by paying the amounts due. The Contractor and/or Subcontractor shall, in addition, be subject to the penalties set forth in Article V of Chapter 6, including debarment. If any Contractor and/or Subcontractor fails to pay the amounts required under this subsection 82.8(f)(5) within the required 30 days, the City may bring a civil action in a court of competent jurisdiction against the non-complying party and, upon prevailing, shall be entitled to such legal and equitable relief as may be appropriate to remedy the violation including, without limitation:
(A) damages in the amount of wages due for violation of the Local Hiring Requirement as calculated under subsection 82.8(f)(3), and
(B) an award of reasonable attorney’s fees and costs.
(6) Distribution of Penalties. The Controller shall withhold any penalties assessed as provided in the foregoing subparagraphs until such time as either the Contractor or Subcontractor has conceded to the penalties or, in the event of an objection, there is a determination no longer subject to judicial review. The Controller shall then deposit the amounts withheld into a special account which shall be created for the sole purpose of receiving said funds. The funds deposited into this account shall be used to support the enforcement of this Policy and the further development of workforce development initiatives to train and prepare Local Residents for careers in construction. This subsection 82.8(f)(6) also shall be applicable to damages obtained as a result of an enforcement action pursuant to subsection 82.8(f)(5).
(7) Other Violations; Repeated Violations. Violations of this Policy for which penalties or other remedies are not specified above constitute violations of contract terms, for which the full range of remedies under the contract may be invoked, including but not limited to withholding of progress payments in amounts deemed proportional to the violation. Awarding Departments shall comply with and implement damages claims and other noncompliance consequences assessed or required by OEWD.
(Added by Ord. 84-17, File No. 170004, App. 3/30/2017, Eff. 4/29/2017, Retro. 3/25/2017)
(Former Sec. 82.8 added by Ord. 148-99, File No. 990433, App. 6/2/99; repealed by Ord. 171-03. File No. 030422, App. 7/3/2003)