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When used in this Chapter 83, the following terms have the following meanings:
"Apprentice level position" shall mean a position that requires a worker who is indentured in a construction apprenticeship program approved by the State of California's Department of Industrial Relations. "Apprentice level position" shall include temporary and permanent jobs that are construction jobs related to the development of a commercial activity or residential project.
"Approved plan" shall mean a first source hiring implementation and monitoring plan developed by a City department and approved by the FSHA.
"Biotechnology business" shall mean conducting biotechnology research and experimental development, and operating laboratories for biotechnology research and experimental development, using recombinant DNA, cell fusion, and bioprocessing techniques, as well as the application thereof to the development of diagnostic products and/or devices to improve human health, animal health, and agriculture.
"City" shall mean the City and County of San Francisco.
"Commercial activity" shall include but not be limited to, for purposes of this Chapter only, retail sales and services, restaurant, hotel, education, hospital, and office uses, biotechnology business, and any other non-profit or for-profit commercial uses.
"Contract" shall mean an agreement for public works or improvements to be performed, or for goods or services to be purchased, or grants to be provided, at the expense of the City, or to be paid out of moneys deposited in the Treasury of the City, or out of trust moneys under the control of, or collected by, the City involving an expenditure in excess of $350,000 for construction contracts, in excess of $50,000 for goods, or in excess of $50,000 for services. Contract shall also mean loans or grants in excess of $50,000 which are awarded by the Mayor's Office of Housing, the Mayor's Office of Community Development, the Mayor's Office of Children, Youth and their Families, or by any other City department for work covered under this Chapter.
The requirements of this Chapter shall apply to: (1) entry level positions for work performed by a contractor in the City; (2) entry level positions for work performed on the contract in counties contiguous to the City; (3) entry level positions for work performed on the contract on property owned by the City; and (4) positions for work performed on Development Projects as defined by this Chapter.
For purposes of this Chapter, "contract" shall include subcontracts under the contract subject to first source hiring, unless otherwise exempted under this Chapter.
For purposes of this Chapter, "contract" shall not include contracts for urgent litigation expenses as determined by the City Attorney, emergency contracts under San Francisco Administrative Code Section 6.30, or Section 21.25, tolling agreements, cooperative purchasing agreements with other governmental entities or contracts with other governmental entities.
"Contractor" shall mean any person(s), firm, partnership, corporation, or combination thereof, who enters into a contract or property contract with a department head or officer empowered by law to enter into contracts or property contracts on the part of the City.
"Developer" shall mean the property owner, agents of the property owner, including but not limited to management companies, person or persons, firm, partnership, corporation, or combination thereof, having the right under the San Francisco Planning Code and/or the San Francisco Building Code to make an application for approval of a commercial activity or residential project.
"Development project" shall mean commercial activity(ies) or a residential project that require a permit that is subject to the requirements of this Chapter, including applicable permits related to biotechnology business.
"Economically disadvantaged individual" shall mean an individual who is either: (1) eligible for services under the Workforce Investment Act of 1988 (WIA) (29 U.S.C.A. 2801 et seq.), as determined by the San Francisco Private Industry Council, or any successor agency; or (2) designated "economically disadvantaged" by the First Source Hiring Administration, as an individual who is at risk of relying upon, or returning to, public assistance, including unemployment benefits. Examples of "economically disadvantaged individuals," for purposes of this subsection, may include, but not be limited to, the following individuals: individuals existing the criminal justice system; individuals participating in or completing substance abuse treatment; individuals who receive financial aid for the purpose of obtaining an education or other vocational training program; survivors of domestic violence seeking employment; people with disabilities seeking employment; and veterans seeking employment.
"Employer" shall mean a contractor, sub-contractor, developer, agents of the developer, tenants or other occupants, or person(s), firm, partnership, corporation, or combination thereof engaged in work performed under a contract, lease, loan, grant, or permit, or engaged in work performed in the City, subject to the requirements of this Chapter.
"Entry level position" shall mean a position that requires any of the following: (1) no education above a high school diploma or certified equivalency; (2) less than two years of training or specific preparation; (3) a college and/or post graduate degree; or (4) a license or a permit. "Entry level position" shall include temporary and permanent jobs, and construction jobs related to the development of a commercial activity or residential project.
"FSHA" shall mean the First Source Hiring Administration.
"Local resident" shall mean an individual who is domiciled, as defined by Section 349(b) of the California Election Code, within the City at least seven (7) days prior to commencing work on a project.
"Permit" shall mean, during Phase I, as defined in this Section 83.4 below, either or both of the following: (1) any building permit application for a commercial activity over 50,000 square feet in floor area and involving new construction, an addition, or alteration which results in the expansion of entry or apprentice level positions for a commercial activity; (2) any application which requires discretionary action by the City's Planning Commission relating to a commercial activity over 50,000 square feet including, but not limited to, a conditional use, project authorization under San Francisco Planning Code Section 309, and office development under San Francisco Planning Code Section 320, et seq. During Phase II, as defined in this Section 83.4, any or all of the following: (1) any building permit application for a commercial activity over 25,000 square feet in floor area and involving new construction, an addition, or alteration which results in the expansion of entry and apprentice level positions for a commercial activity; (2) any application which requires discretionary action by the City's Planning Commission relating to a commercial activity over 25,000 square feet including, but not limited to conditional use, project authorization under San Francisco Planning Code Section 309, and office development under San Francisco Planning Code Section 320, et seq., or (3) any building permit application for a residential project as defined herein.
The requirements of this Chapter shall apply to entry and apprentice level positions for work done under a permit authorizing a development project or residential project in the City.
"Phase I" shall refer to the first stage of implementation of this Article which became operative on October 20, 1998. Phase I applied to contracts for public works or improvements to be performed, property contracts, grants or loans issued by the Mayor's Office of Housing, or by the Mayor's Office of Community Development, and permits issued for commercial activity over 50,000 square feet.
"Phase II" refers to the second stage of implementation of this Chapter which became operative on April 1, 2001, 24 months after the FSHA adopted a resolution stating that Phase I had been implemented. In addition to the contracts, property contracts, grants or loans referred to in the definition of Phase I, above, Phase II shall apply to contracts for goods in excess of $50,000, contracts for services in excess of $50,000, permits issued for commercial activity exceeding 25,000 square feet, grants and loans in excess of $50,000 issued by other City departments, and permits issued for residential projects as defined herein. In addition, Phase II shall apply to any and all work performed in the City by City contractors.
“Prevailing Wage” shall mean “Prevailing Wage or Prevailing Rate of Wages” as defined in Labor and Employment Code Section .
"Property contract" shall mean a written agreement, including leases, concessions, franchises and easements, between the City and a private party for the exclusive use of real property, owned or controlled by the City, for a term exceeding 29 days in any calendar year (whether by a singular instrument or by cumulative instruments) for the operation or use of such real property for the operation of a business establishment, that creates available entry or apprentice level positions. For purposes of this Chapter, "property contract" does not include an agreement for the City to use or occupy real property owned by others, or leases, easements or permits entered into by the Public Utilities Commission for pipeline rights-of-way property and watershed property.
"Publicize" shall mean to advertise or post, and shall include participation in job fairs, or other forums in which employment information is available.
"Qualified" with reference to an economically disadvantaged individual shall mean an individual who meets the minimum bona fide occupational qualifications provided by the prospective employer to the San Francisco Workforce Development System in the job availability notices required by this Chapter.
"Residential project" shall mean a residential development involving new construction, an addition, a conversion, or substantial rehabilitation that results in the creation or addition of ten or more residential units.
"Retention" shall, when used in this Chapter, be construed to apply to the entry or apprentice level position, not to any particular individual.
"San Francisco Workforce Development System (System)" shall mean the system established by the City and County of San Francisco, and managed by the FSHA, for maintaining: (1) a pool of qualified individuals; and (2) the mechanism by which such individuals are certified and referred to prospective employers covered by the first source hiring requirements under this Chapter.
"Substantial rehabilitation," when used in this Chapter, shall mean rehabilitation that involves costs in excess of 75 percent of the value of the building after rehabilitation.
(Added by Ord. 264-98, App. 8/21/98; amended by Ord. 207-04, File No. 040987, App. 8/5/2004; Ord. 250-04, File No. 041190, App. 10/14/2004; Ord. 76-06, File No. 060166, App. 4/20/2006; Ord. 214-08, File No. 080235, App. 9/19/2008; Ord. 149-09, File No. 090327, 7/10/2009; Ord. 47-14
, File No. 140150, App. 4/18/2014, Eff. 5/18/2014; Ord. 296-24, File No. 240985, App. 12/19/2024, Eff. 1/19/2025, Oper. 2/19/2025)
The requirements of this Chapter shall apply to: (a) entry level positions for work performed by a contractor in the City; (b) entry level positions for work performed on the contract in counties contiguous to the City; (c) entry level positions for work performed on the contract on property owned by the City; and (d) entry level positions for work done under a permit authorization on a development project in the City.
(Added by Ord. 264-98, App. 8/21/98; amended by Ord. 250-04, File No. 041190, App. 10/14/2004)
(a) Establishment and Composition. A First Source Hiring Administration ("FSHA") is hereby established for the purpose set forth in Subsection (b) below. The FSHA shall consist of the following: (1) the Mayor or his/her designee from the Mayor's Office of Economic and Workforce Development; (2) the Executive Director of the Human Services Agency, or his/her designee; (3) the Director of the Mayor's Office of Community Development, or his/her designee; (4) the Chair of Workforce Investment San Francisco, or his/her designee; (5) the Chancellor of the City College of San Francisco or his/her designee; (6) other City department representatives appointed by the FSHA as necessary from time to time; and (7) other San Francisco governmental agency representatives participating in the First Source Hiring Program and invited by the FSHA.
The Department of Economic and Workforce Development shall manage and provide staff for the FSHA.
(b) Powers and Duties. The FSHA shall be responsible for the implementation, oversight, and monitoring of the first source hiring requirements of this Chapter. Its powers and duties shall include:
(1) Providing assistance to individual City departments in designing first source hiring implementation and monitoring plans for that department to use in contracts and property contracts, including criteria for assigning particular numerical hiring goals, or reviewing and approving existing Plans. The FSHA shall work with departments to identify those contracts and property contracts that offer available entry level positions in duration and numbers sufficient to justify the additional administrative duties resulting from the implementation of the requirements of this Chapter. To the greatest extent possible, the development of these plans shall utilize the department's existing contract-monitoring procedures and facilitate a coordinated flow of information;
(2) Working with the Department of City Planning and the Department of Building Inspection to establish conditions based upon first source hiring agreements for development projects;
(3) Working with employers and unions to identify entry level positions for qualified economically disadvantaged individuals, and to set appropriate recruitment, hiring and retention goals;
(5) Developing written regulations to implement first source hiring;
(6) Entering into cooperative agreements with other San Francisco governmental agencies, including, but not limited to, the Housing Authority, the Redevelopment Agency, the In-Home Supportive Services Public Authority, and the Parking Authority, consistent with the laws governing such agencies and consistent with the purpose of this Chapter;
(7) Conducting independent audits of City departmental implementation, monitoring and enforcement of the requirements of this Chapter;
(8) Preparing an annual report on the progress of first source hiring for presentation to the Mayor and the Board of Supervisors that will include but not be limited to the status of first source implementation by all City departments, the number of contractors by department subject to first source requirements by department, the number of permittees subject to first source requirements, the number and percent of contractors and permittees with signed first source agreements on file, the number and percent of first source employers posting jobs, the number of jobs posted and the wage data associated with those jobs, the number of job seekers referred to employers, the number of job seekers hired by first source employers, the number and percent of first source employers hiring job seekers, and the length of time that hired individuals remain employed. All contractors and permittees covered by this Chapter shall comply with all reasonable requests for information from the FSHA in its attempt to comply with this subdivision. In addition, the FSHA shall review these data to determine whether, in light of the data, the liquidated damages provision that this ordinance requires continues to reflect a fair estimate of the injury that the City suffers when a contractor fails to comply with its first source referral obligations. If the FSHA determines that the liquidated damages provision can be improved it shall submit to the Board of Supervisors proposed amendments to this Ordinance reflecting those improvements. The Board of Supervisors shall hold a hearing on the report within 45 days of its submission to the Clerk of the Board of Supervisors.
(9) Submitting all approved first source hiring implementation and monitoring plans ("approved plan") to the Workforce Development Advisory Committee for review;
(10) Developing effective outreach, education, support services for, and recognition of, employers.
(c) The FSHA shall phase-in implementation of this Chapter in accordance with Section 83.18, below, and as defined in Section 83.4 above. The FSHA shall first establish a schedule for assisting in the development of, or approving existing first source hiring implementation and monitoring plans by the following City departments: Airport; Department of Building Inspection; Department of Planning; Department of Public Health; Mayor's Office of Children, Youth and Families; Mayor's Office of Community Development; Mayor's Office of Housing; Municipal Railway; Parks and Recreation; Port; Public Works, and Purchasing. The FSHA shall also establish a schedule for the remaining City departments.
(d) The FSHA shall exercise its powers and duties in a manner that does not result in delay for contractors or developers subject to this Chapter.
(e) The FSHA, or the OLSE, where appropriate, shall make the final administrative determination as to compliance with the requirements of this Chapter.
(Added by Ord. 264-98, App. 8/21/98; amended by Ord. 250-04, File No. 041190, App. 10/14/2004; Ord. 76-06, File No. 060166, App. 4/20/2006; Ord. 270-07, File No. 071056, App. 11/26/2007; Ord. 214-08, File No. 080235, App. 9/19/2008; Ord. 47-14, File No. 140150, App. 4/18/2014, Eff. 5/18/2014)
(a) All commissions, departments, officers and employees of the City shall cooperate with the FSHA in connection with their respective duties relative to the award of contracts, property contracts, and the issuance of permits subject to this Chapter.
(b) City departments shall develop an overall first source hiring implementation and monitoring plan ("plan") with the assistance of the FSHA. Once the FSHA approves the plan ("approved plan"), the Department is not required to seek approval from the FSHA for specific contracts, property contracts or permits unless otherwise instructed to do so in the approved plan. If a Department is required to comply with Federal or State hiring program regulations that meet or exceed the requirements of this Chapter, that department shall submit that information as its plan. Compliance with such regulations shall be deemed to be an "approved plan." Compliance by a Department with the approved plan shall be deemed to be compliance with the requirements of this Chapter. The FSHA may require regular reports by the Department as part of the plan.
(c) In situations where both the Departments of Building Inspection and Planning grant approval for a development project or residential project, the City's Department of Planning shall have primary jurisdiction for the conditions imposed on the permit required under this Chapter, and the role of the Department of Building Inspection shall be limited to assisting in enforcement of the first source hiring requirements.
(Added by Ord. 264-98, App. 8/21/98; amended by Ord. 250-04, File No. 041190, App. 10/14/2004; Ord. 76-06, File No. 060166, App. 4/20/2006)
There shall be established a Workforce Development Advisory Committee ("Advisory Committee") to advise the FSHA on workforce development, employ-mended needs, program policy, design, implementation, oversight, and monitoring. This advisory committee shall be appointed by the Mayor and shall include representatives of community-based organizations, labor, the business community, educational institutions, and City departments. The members of this advisory committee shall serve at will for a term of one year, and may be reappointed. This advisory committee shall meet at least quarterly.
(Added by Ord. 264-98, App. 8/21/98; amended by Ord. 250-04, File No. 041190, App. 10/14/2004)
(a) This Chapter applies to all contracts and property contracts, except where the FSHA determines that application of the requirements of this Chapter is not feasible or conflicts with applicable Federal or State law. In addition, this Chapter applies to any and all work performed in the City by a City contractor.
(b) As an essential term of, and consideration for, any contract or property contract with the City, not exempted by the FSHA, the Contractor shall enter into a first source hiring agreement ("agreement") with the City, on or before the effective date of the contract or property contract. Contractors shall also enter into an agreement with the City for any other work that it performs in the City. Such agreement shall:
(1) Set appropriate hiring and retention goals for entry level positions. The employer shall agree to achieve these hiring and retention goals, or, if unable to achieve these goals, to establish good faith efforts as to its attempts to do so, as set forth in the agreement. The agreement shall take into consideration the employer's participation in existing job training, referral and/or brokerage programs. Within the discretion of the FSHA, subject to appropriate modifications, participation in such programs may be certified as meeting the requirements of this Chapter. Failure either to achieve the specified goal, or to establish good faith efforts will constitute noncompliance and will subject the employer to the provisions of Section 83.10 of this Chapter.
(2) Set first source interviewing, recruitment and hiring requirements, which will provide the San Francisco Workforce Development System with the first opportunity to provide qualified economically disadvantaged individuals for consideration for employment for entry level positions. Employers shall consider all applications of qualified economically disadvantaged individuals referred by the System for employment; provided however, if the employer utilizes nondiscriminatory screening criteria, the employer shall have the sole discretion to interview and/or hire individuals referred or certified by the San Francisco Workforce Development System as being qualified economically disadvantaged individuals. The duration of the first source interviewing requirement shall be determined by the FSHA and shall be set forth in each agreement, but shall not exceed 10 days. During that period, the employer may publicize the entry level positions in accordance with the agreement. A need for urgent or temporary hires must be evaluated, and appropriate provisions for such a situation must be made in the agreement.
(3) Set appropriate requirements for providing notification of available entry level positions to the San Francisco Workforce Development System so that the System may train and refer an adequate pool of qualified economically disadvantaged individuals to participating employers. Notification should include such information as employment needs by occupational title, skills, and/or experience required, the hours required, wage scale and duration of employment, identification of entry level and training positions, identification of English language proficiency requirements, or absence thereof, and the projected schedule and procedures for hiring for each occupation. Employers should provide both long-term job need projections and notice before initiating the interviewing and hiring process. These notification requirements will take into consideration any need to protect the employer's proprietary information.
(4) Set appropriate record keeping and monitoring requirements. The First Source Hiring Administration shall develop easy-to-use forms and record keeping requirements for documenting compliance with the agreement. To the greatest extent possible, these requirements shall utilize the employer's existing record keeping systems, be nonduplicative, and facilitate a coordinated flow of information and referrals.
(5) Establish guidelines for employer good faith efforts to comply with the first source hiring requirements of this Chapter. The FSHA will work with City departments to develop employer good faith effort requirements appropriate to the types of contracts and property contracts handled by each department. Employers shall appoint a liaison for dealing with the development and implementation of the employer's agreement. In the event that the FSHA finds that the employer under a City contract or property contract has taken actions primarily for the purpose of circumventing the requirements of this Chapter, that employer shall be subject to the sanctions set forth in Section 83.10 of this Chapter.
(6) Set the term of the requirements.
(7) Set appropriate enforcement and sanctioning standards consistent with this Chapter.
(8) Set forth the City's obligations to develop training programs, job applicant referrals, technical assistance, and information systems that assist the employer in complying with this Chapter.
(9) Require the developer to include notice of the requirements of this Chapter in leases, subleases, and other occupancy contracts.
(c) The employer shall make the final determination of whether an economically disadvantaged individual referred by the System is "qualified" for the position. Any qualified economically disadvantaged individual who is hired by the employer shall have the same rights and obligations as all other employees in similar positions. The employer shall not discriminate against any employees on the basis of participation in the First Source Hiring Program. Any such discrimination shall be considered a breach of the employer's "good faith" obligations under the agreement, and shall be subject to the sanctions set forth in Section 83.10 of this Chapter.
(d) Compliance by an employer with a City department's approved plan shall be deemed to be compliance with the requirements of this Chapter.
(e) In any situation where the FSHA concludes based upon application by the employer that compliance with this Chapter would cause economic hardship the FSHA may grant an exception to any or all of the requirements of this Chapter.
(Added by Ord. 264-98, App. 8/21/98; amended by Ord. 250-04, File No. 041190, App. 10/14/2004; Ord. 76-06, File No. 060166, App. 4/20/2006)
(a) Every contract covered by this Chapter shall contain a provision in which the Contractor agrees:
(1) To be liable to the City for liquidated damages as provided in this section;
(2) To be subject to the procedures governing enforcement of breaches of contracts based on violations of contract provisions required by this Chapter as set forth in this section;
(3) That the contractor's commitment to comply with this Chapter is a material element of the City's consideration for this contract; that the failure of the contractor to comply with the contract provisions required by this Chapter will cause harm to the City and the public which is significant and substantial but extremely difficult to quantify; that the harm to the City includes not only the financial cost of funding public assistance programs but also the insidious but impossible to quantify harm that this community and its families suffer as a result of unemployment; and that the assessment of liquidated damages of up to $5,000.00 for every notice of a new hire for an entry level position improperly withheld by the contractor from the first source hiring process, as determined by the FSHA during its first investigation of a contractor, does not exceed a fair estimate of the financial and other damages that the City suffers as a result of the contractor's failure to comply with its first source referral contractual obligations.
(4) That the continued failure by a contractor to comply with its first source referral contractual obligations will cause further significant and substantial harm to the City and the public, and that a second assessment of liquidated damages of up to $10,000.00 for each entry level position improperly withheld from the FSHA, from the time of the conclusion of the first investigation forward, does not exceed the financial and other damages that the City suffers as a result of the contractor's continued failure to comply with its first source referral contractual obligations;
(5) That in addition to the cost of investigating alleged violations under this Section, the computation of liquidated damages for purposes of this section is based on the following data:
A. The average length of stay on public assistance in San Francisco's County Adult Assistance Program is approximately 41 months at an average monthly grant of $348.00 per month, totaling approximately $14,379.00; and
B. In 2004, the retention rate of adults placed in employment programs funded under the Workforce Investment Act for at least the first six months of employment was 84.4%. Since qualified individuals under the First Source program face far fewer barriers to employment than their counterparts in programs funded by the Workforce Investment Act, it is reasonable to conclude that the average length of employment for an individual whom the First Source Program refers to an employer and who is hired in an entry level position is at least one year;
therefore, liquidated damages that total $5,000.00 for first violations and $10,000.00 for subsequent violations as determined by FSHA constitute a fair, reasonable, and conservative attempt to quantify the harm caused to the City by the failure of a contractor to comply with its first source referral contractual obligations.
(6) That the failure of contractors to comply with this Chapter, except property contractors, may be subject to the debarment and monetary penalties set forth in Sections 6.80 et seq. of the San Francisco Administrative Code, as well as any other remedies available under the contract or at law.
(b) The FSHA shall promulgate appropriate guidelines or rules for the enforcement of this Chapter. Such guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Chapter, including mechanisms to monitor contractor compliance with the contract provisions required by this Chapter, and for determining whether a contractor has failed to comply with its first source referral contractual obligations.
(c) The FSHA may investigate possible violations of contract provisions required by this Chapter. Where the FSHA, after providing the contractor with the opportunity to respond to the alleged violation, determines that a contractor failed to make available entry level positions to the FSHA for referral of qualified economically disadvantaged individuals, as required by the applicable first source hiring agreement, the FSHA shall provide written notice to the contractor as follows:
(1) The factual basis for the determination;
(2) The corrective action that the contractor must take to remedy the violation;
(3) The amount of liquidated damages that the FSHA has assessed for the contractor's violation of this Chapter;
(4) Notice that the contractor has 15 days to either take the required corrective action, including payment of liquidated damages, or to file an appeal consistent with subsection (5), below;
(5) That the contractor has the right to appeal the FSHA's final determination to the OLSE, including the assessment of liquidated damages and the amount assessed, but that any such appeal must be filed in writing with the OLSE within 15 days of the date of the issuance of FSHA's determination and that a contractor must file an appeal with the OLSE in order to exhaust administrative remedies;
(6) That if the contractor fails to take the required corrective action or file on appeal in writing with the OLSE within 15 days as set forth above, the FSHA's determination shall be the City's final and binding decision which the City may enforce in a court of law, and
(7) That the contractor will be required to comply with the decision within 5 business days of the FSHA's decision becoming final, including payment of liquidated damages, if any, together with simple annual interest of 10% from the date that payment should have been made.
(d) (1) While liquidated damages in the maximum amount set forth in this section are a reasonable estimate of harm to the City caused by the contractor's non-compliance with contract provisions required by this Chapter, the FSHA may determine that less than the full amount is warranted depending on the circumstances of each case. The FSHA shall consider the following factors in determining the amount of liquidated damages, if any, to impose against a contractor who fails to comply with contract provisions required by this Chapter:
(A) The size of the contractor's business;
(B) The contractor's good faith efforts to comply with contract provisions required by this Chapter;
(C) The gravity of the violation;
(D) Whether the contractor has a history of violations of contract provisions required by this Chapter;
(E) Whether the contractor has failed to comply with recordkeeping requirements imposed by contract provisions under this Chapter; and
(F) Whether the imposition of liquidated damages would undermine the purpose of this Chapter by imposing unreasonable financial burdens on the contractor, thereby imperiling the contractor's ability to continue complying with contract provisions required by this Chapter.
(e) (1) Within 15 days of receiving an appeal from the FSHA's final determination, the OLSE shall appoint a hearing officer and shall so advise the FSHA and the contractor, and/or their respective counsel or authorized representative.
(2) 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, not including the issuance of a decision, unless all parties agree to an extended period. If a contractor appeals the FSHA's initial determination but fails to attend a hearing set under this subsection, the FSHA's initial determination shall become final.
(3) The FSHA shall have the burden of producing evidence justifying its imposition of liquidated damages under this Chapter, and of the contractor's violation of contract provisions required by this Chapter, and shall have the burden of proving that a violation occurred. The contractor shall have the right to present evidence on its behalf in response to any alleged violation of contract provisions required by this Chapter.
(4) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision affirming, modifying, or vacating the FSHA's determination of whether the contractor violated the first source hiring agreement, of what corrective action that the contractor must take to remedy any violation, and of the amount of liquidated damages to be assessed, if any. The hearing officer's decision shall consist of findings and a determination, which shall be the City's final decision.
(5) The contractor shall comply with the hearing officer's decision within 5 business days of service of the decision. Service shall be made by first class mail to the contractor's address of record. If the hearing officer imposed liquidated damages, the contractor shall pay the liquidated damages within 5 business days of the receipt of the decision. Payment of liquidated damages after that day shall be subject to simple annual interest of 10% from the day that such damages were due.
(6) The contractor may seek review of the hearing officer's decision only by filing in the San Francisco Superior Court a petition for a writ of mandate under California Code of Civil Procedure, section 1094.5, as may be amended from time to time.
(7) When a contractor fails to take corrective action within the time required by the provisions of this section, the City may immediately pursue all available remedies against the contractor for breach of contract, including debarment proceedings where applicable and filing a civil action to recover liquidated damages due under this section.
(8) The failure of the FSHA or OLSE to comply with the time requirements of this Section shall not cause the OLSE or the hearing officer to lose jurisdiction over an appeal from the FSHA's determination filed under this Section.
(f) If the developer fulfills its obligations as set forth in this Chapter, the developer shall not be held responsible for the failure of an employer to comply with the requirements of this Chapter.
(g) Liquidated damages obtained under this Chapter shall be deposited in the general fund.
(Added by Ord. 264-98, App. 8/21/98; Ord. 76-06, File No. 060166, App. 4/20/2006; Ord. 32-09, File No. 081512, App. 3/9/2009)
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