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City departments shall include the requirements of this article in all solicitations and contracts. If the department primarily responsible for managing any contract covered by this article learns that the contractor has violated the above provision, the department must notify the procurement director regarding the non-compliance. If the contractor, after being advised of the noncompliance, does not demonstrate that it has taken appropriate corrective action for the breach, the procurement director will notify OSHA/ADOSH and may take other action as permitted by the procurement code and the contract, including termination of the contract.
(Ord. No. 12100, § 1, 6-4-24)
ARTICLE XVI. PREVAILING WAGE
In this article, unless the context otherwise requires:
Sec. 28-163(1). “Affordable housing” means residential or mixed-use development that provides low-to-moderate-income housing to at least fifty (50) percent of the dwelling units at a site committed for a minimum term through covenants or restrictions to households with incomes at eighty (80) percent or less of the area median income as defined by the United States Department of Housing and Urban Development.
Sec. 28-163(2). “City” means the City of Tucson and any related city agency, department or authority.
Sec. 28-163(3). “Construction” has the meaning as set forth in section 34-101(3) of Title 34, Chapter 1, Article 1 of the Arizona Revised Statutes. For the purposes of this article, construction does not include work performed by employees of the city.
Sec. 28-163(4). “Covered contractor” means any contractor or subcontractor performing work on a covered project.
Sec. 28-163(5). “Covered project” means a city construction project on city-owned or leased property where the city is the "owner" of the project, the solicitation and award of contract(s) for the construction of the project is subject to the Procurement Code as well as Title 34 of the Arizona Revised Statutes, and the engineer's estimate of the total project cost is no less than two million ($2,000,000) dollars, with the exception of the following:
(a) Projects subject to federal prevailing wage law.
(b) Projects for which contracts are solicited before July 1, 2024, including any renewals.
(c) Projects funded in whole or in part by revenues generated from ballot measures approved by voters prior to January 1, 2024.
(d) Any projects to be constructed under a job order contract (JOC).
(e) Any affordable housing project.
(f) Any project where the contract solicitation is being re-advertised because the initial solicitation received less than three (3) responsive qualifying bids.
(g) Public infrastructure projects built by private developers regardless of whether the city is providing any form of cost reimbursement.
Sec. 28-163(6). “Prevailing wage rate” means the rate, amount, or level of wages, salaries, benefits, and other remuneration prevailing for the corresponding class of mechanics, laborers, or workers employed for the same work in the same trade or occupation in the locality in which the construction takes place, as determined by the director on the basis of applicable prevailing wage rate determinations made by the U.S. Secretary of Labor under the provisions of the Davis-Bacon Act, 40 U.S.C. § 3142 et seq., as amended.
Sec. 28-163(7). “Willfully” means any act that is intentional, deliberate, conscious or voluntary and designed to achieve a particular result.
(Ord. No. 12066, § 1, 1-9-24)
(a) Required. Every mechanic, laborer or other worker employed by any contractor or subcontractor performing work on a covered project shall be paid not less than the prevailing wage rate for the same class and kind of work in the Tucson metropolitan area. This section shall not apply to any participant in a youth employment program where the participant is employed in non-construction work.
(b) Apprenticeship programs. Any covered contractor may support employee apprenticeship participation by contributing an amount to an apprenticeship program approved by the U.S. Department of Labor that is equivalent to and consistent with the appropriate Prevailing Wage Rate as determined by the U.S. Department of Labor and is registered with the State of Arizona.
(c) Contract specifications. Every construction contract entered into by the city for a covered project shall contain a provision: (i) stating that the minimum wages to be paid for every class of mechanic, laborer and worker performing construction work on the project shall be not less than the prevailing wage rate for that class of worker; (ii) requiring the contractor to pay every mechanic, laborer or other worker at least once a week the full amount of wages accrued at the time of payment at the applicable prevailing wage rate; (iii) mandating that the contractor comply with the recordkeeping and notice posting requirements in section 28-165; (iv) stating that the contractor may not misclassify any mechanic, laborer or other worker as an independent contractor, as defined in CFR 541; (v) requiring compliance with this article; and (vi) requiring the contractor impose these same requirements on all subcontractors. A mechanic, laborer or other worker shall be classified as an independent contractor only if their work relationship satisfies the legal definition of an independent contractor under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., as amended.
(Ord. No. 12066, § 1, 1-9-24)
(a) Every covered contractor shall keep certified payroll records showing the name, address, job classification, wages and benefits paid or provided, and the number of hours worked for each employee. These records shall be preserved for four (4) years from the date of an employee's final payment for work done on the covered project and shall be considered public records under Arizona Public Records Law, A.R.S. section 39-101 et seq. Every covered contractor shall file weekly Federal Form WH-347 or its equivalent which shall specify for each employee the employee's name, address, employee ID#/last four digits of the Social Security Number, job classification, hourly wage rate paid, the number of hours worked each week, all deductions made from gross pay, and net weekly pay, with the director. Every covered contractor shall file a statement weekly with the director certifying that (i) all its employees performing work on the covered project have been paid no less than the wage required by this article, or if any wages remain unpaid, setting forth the amount of wages due and owing to each worker respectively; and (ii) the job classification for each employee conforms with the work performed. Social Security Numbers and other personal identifying information shall be kept confidential by the city, unless otherwise required by law.
(b) The director must notify in writing all covered contractors at least once every twelve (12) months of their obligation to file weekly the Federal Form WH-347 or its equivalent. The notification must include a copy of the Federal Form WH-347 with instructions for completing the form, the dates that the completed form is due throughout the subsequent twelve (12) months, contact information for an employee within the director's office where questions can be referred, and a notice of the penalties that can be assessed if the covered contractor becomes non-compliant. In addition, the notice shall include a letter that provides the name, address and telephone number of the director, the applicable prevailing wages for the job classifications at the covered contractor, and a statement advising workers that if they have been paid less than the prevailing wage rate they may notify the director and request an investigation. The city's failure to provide the previously described written notification to covered employers does not relieve covered contractors of their obligations under this article.
(c) Every covered contractor shall post the letter with the related information referenced in subsection (c) above at the job site in an area easily accessible by all employees.
(Ord. No. 12066, § 1, 1-9-24)
(a) Complaint procedure. The director shall provide a complaint form on the official city website. Any affected individual or organization representing such individual(s) may file a complaint with the director for any violation of this article.
(b) Review and investigation. The director shall review and investigate the complaint and shall make a finding of compliance or noncompliance within sixty (60) days of the complaint being filed, including a determination of whether an employer is covered by this article. The covered contractor shall permit authorized agents of the director to observe the work being performed on the work site, to interview employees, and examine the books and records relating to the payrolls being investigated to determine whether or not the covered contractor is in compliance with this article. Failure of the director to issue a finding of compliance or noncompliance does not relieve the covered contractor of their obligations under this article.
(c) Finding of noncompliance. If at any time the director, upon investigation of a complaint or upon independent investigation, finds that a violation of this article has occurred it shall issue a finding of noncompliance and notice of corrective action to the covered contractor. The finding of noncompliance shall specify the areas of noncompliance, indicate such corrective action as may be necessary to achieve compliance, and impose deadlines for achieving compliance.
(d) Dispute of finding of noncompliance. A covered contractor may dispute a finding of noncompliance and notice of corrective action by requesting a review within thirty (30) days of the date of the finding. The director shall appoint a hearing officer, who shall affirm or reverse the finding of noncompliance based upon evidence presented by the applicable city department and the covered contractor. Where the finding of noncompliance and notice of corrective action requires wage restitution, the covered contractor must, as a precondition to a request for review, provide evidence that such wages have either been paid or placed into an escrow account and will be paid from the escrow account directly to employees if the hearing officer affirms the director's finding. A covered contractor who does not timely request review or appeal, or who fails to pay or escrow wages as provided herein, waives the right to dispute a finding of noncompliance. A finding of noncompliance and notice of corrective action shall become final if either the covered contractor fails to request review within thirty (30) days as provided in this paragraph, or the hearing officer affirms such finding after a review.
(e) A violation by a subcontractor of a covered contractor shall be deemed a violation by the covered contractor.
(Ord. No. 12066, § 1, 1-9-24)
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