[HISTORY: Adopted by the City Council of the City of East Orange 2-27-2012 by Ord. No. 8-2012; amended in its entirety 8-18-2014 by Ord. No. 19-2014. Subsequent amendments noted where applicable.]
Affirmative Action Program — See Ch. 8.
This chapter shall ensure that large construction projects with total costs that exceed $15,000,000 excluding land acquisition costs and certain public construction contracts with total costs that exceed $5,000,000 that the municipality directly undertakes or for which it provides financial support are performed promptly, at a reasonable cost and with the highest degree of quality. This chapter also creates opportunities to employ a substantial number of apprentices, thus ensuring that these projects will expand access to living-wage careers in the construction trades for a new generation of workers. Projects which exceed the five-million-dollar or fifteen-million-dollar thresholds during the pendency of the project shall also be subject to this chapter.
As used in this chapter, the following terms shall have the meanings indicated:
- A worker who participates in a federal apprenticeship program or as an apprentice equivalent participates in a federally approved training program, takes a construction apprenticeship test and receives benefits and pay not less than those received by an apprentice.
- APPRENTICE PROGRAM
- An apprenticeship program operated by an entity registered by the Bureau of Apprenticeship and Training of the United States Department of Labor or registered by a federal apprenticeship agency recognized by the Bureau.
- CERTAIN PROJECTS
- That the City in its sole discretion may exempt projects which otherwise would fall within the purview of this chapter from the requirements of same.
- A person or entity awarded a public works or publicly funded contract contemplated by this chapter.
- CRAFT REQUEST FORM
- A form which delineates the job or craft titles and descriptions (for example, but not by way of limitation, plumbers, glazers, carpenters, etc.) which are needed for a particular project, which form may be the one customarily used by the relevant trade or craft unions at that time and place.
- The recipient of financial assistance for a financial assistance project or the contractor for a public works project.
- LABOR ORGANIZATION
- An organization which represents, for purposes of collective bargaining, employees involved in the performance of construction contracts and eligible to be paid prevailing wages under the New Jersey Prevailing Wage Act, P.L. 1963, c. 150 (N.J.S.A. 34:11-56.25 et seq.), and has the present ability to refer, provide or represent sufficient numbers of qualified employees to perform the contracted work and which has an apprenticeship program registered by the Bureau of Apprenticeship and Training of the United States Department of Labor.
- NOT FOR PROFIT
- Any entity that is organized as a nonprofit or not-for-profit entity, corporate or otherwise, or a governmental entity.
- PRIVATE ENTITY
- Any organization which conducts a profit-making business and is not otherwise organized as a nonprofit or a not-for-profit organization or governmental entity.
- PROJECT LABOR AGREEMENT
- A contract between a contractor/labor organization, a developer and/or the City of East Orange that contains, at a minimum, the requirements set forth in this chapter.
- PUBLIC WORKS PROJECTS
- Building, altering, repairing, improving or demolishing any public structure or facility constructed, acquired or otherwise owned by the City of East Orange to house local government functions or provide water, waste disposal, power, transportation and other public infrastructure.
- PUBLICLY FUNDED PROJECTS
- Includes certain public construction contracts with total costs that exceed $5,000,000 that it directly undertakes or large construction projects where the public entity estimates that the total cost of the project, exclusive of any land acquisition costs, will equal or exceed $15,000,000 to a private entity, expressly articulated or identified in writing by the City of East Orange, including, but not limited to grants, rent subsidies or reductions, loan forgiveness, approved bond financing, contingent obligations taken on by the City of East Orange such as any guaranty, fee reductions or fee waivers, density bonuses and tax abatements awarded pursuant to the Long Term Tax Exemption Law (N.J.S.A. 40A:20-1 et seq.) and the New Jersey Housing and Mortgage Finance Agency Law, N.J.S.A. 55:14k-1 et seq.
- A person or entity that is engaged or performs work or provides materials for a contractor or developer, as defined herein, which person or entity may not be in privity of contract with the City of East Orange.
- TOTAL PROJECT COSTS
- Shall be inclusive of environmental work, demolition, preconstruction and construction costs.
The terms of this chapter, set forth in § 8A-5 below, are applicable to covered projects. Covered projects include public works and publicly funded projects.
To the extent any of the provisions of this chapter are deemed to conflict with N.J.S.A. 52:38-1 et seq. (P.L. 2202, c. 44), the statute shall control. To the extent the provisions of this chapter conflict with Chapter 8, Affirmative Action Program, this chapter shall prevail. To the extent this chapter conflicts with any additional local ordinances, this chapter shall control.
Project labor agreement required. Certain public works projects and publicly funded projects shall require the execution of a project labor agreement that complies with the requirements of this chapter, unless the Director of Public Works or his designee determines that it is in the best interests of the City to waive this requirement. The agreement shall either be directly entered into with a labor organization or the award of the contract shall be made on the condition that the construction manager for the contract shall negotiate a project labor agreement in good faith with one or more labor organizations.
Project labor agreement requirements. Each project labor agreement executed pursuant to this chapter shall be in conformity with N.J.S.A. 52:38-1 et seq. (P.L. 2202, c. 44), and:
Advance the interests of the City of East Orange, including the interests in the City of East Orange in cost, efficiency, quality, timeliness, skilled labor force, and safety;
Contain guarantees against strikes, lockouts, or other similar actions;
Set forth effective, immediate and mutually binding procedures for resolving jurisdictional and labor disputes arising before the completion of the work;
Be made binding on all contractors and subcontractors on the project in all relevant documents, including bid specifications;
Require that each contractor and subcontractor working on the project have an apprenticeship program as defined herein;
Fully conform to all statutes, regulations and City of East Orange ordinances regarding the implementation of goals for women- and minority-owned businesses, the obligation to comply with which shall be expressly provided for in the project labor agreement;
Include a publicly available plan which is in full conformance with the requirements of all applicable statutes, regulations and executive orders regarding the share of employment and apprenticeship positions in the project for minority group members and women, and is mutually agreed upon by the participating labor organizations and the public entity or the developer which will own the facilities which are built, altered or repaired under the project, provided that any shares mutually agreed upon pursuant to this subsection shall equal or exceed the requirements of other statutes, regulations, executive orders or local ordinances;
State that contractors and subcontractors need not be a party to a City of East Orange labor agreement with the applicable labor organization other than for the project covered by the project labor agreement;
Require the City to monitor, or arrange to have a state agency monitor, the amount and share of work done on the project by minority group members and women and the progression of minority group members and women into apprentice and journey worker positions and require the City to make public, or have the state agency make public, all records of monitoring conducted pursuant to N.J.S.A. 52:38-1 et seq. (P.L. 2002, c. 44), this chapter and the project labor agreement;
State that any and all residents who are already in any signatory union or an apprenticeship program shall be referred to contractors or subcontractors who request them, even if those residents were not in line for referral under normal hiring hall procedures;
Require the contract for the public works project to provide whatever resources may be needed to prepare for apprenticeship a number of women and minority group members sufficient to enable compliance with the plan agreed upon pursuant to this chapter and provide that the use of those resources be administered jointly by the participating labor organizations and the public entity;
State that the terms of the project labor agreement shall prevail over conflicting terms of any collective bargaining agreements;
Require that the labor organization utilize members who are East Orange residents as its first choice for staffing without regard to any other preferential status; and
Require that 20% of the labor hours required shall be performed by the East Orange residents who are participating in the apprenticeship program and that 100% of the apprentices shall be East Orange residents.
Advertisement. Not less than 60 days prior to the commencement of construction, the labor organization will advertise in two newspapers regularly published and distributed in the City and outreach via other media, such as cable television, the Internet or radio. The advertisement shall solicit apprenticeship applications for the labor organization's apprenticeship program, describe the basic requirements for admission, describe the job training and set forth the range of salaries.
Preconstruction meeting. Not less than 30 days prior to the commencement of construction, the developer shall meet with the appropriate City official, as the context makes relevant, or his or her designee to present workforce needs, which will include the job description of the positions to be filled and duration of the project. In addition, the developer will provide the construction schedule to the respective Director or his or her designee. The labor organization will present the developer and the respective Director or his or her designee with the names, addresses and trades of eligible apprentices who are available to work on the project.
Job fairs. The developer and the labor organization will jointly participate in a job fair to be held in the City in order to explain the apprenticeship program and solicit applications from attendees.
On all covered projects, the minority and women employment goals for each contractor and subcontractor for each trade shall be established by the New Jersey Department of Labor in a manner that is consistent with N.J.A.C. 17:27-7.2; however, a contractor shall not be subject to enforcement actions for violations of this provision if that contractor can demonstrate that it made good faith efforts to comply with this section. For the purposes of this section, good faith efforts for a developer shall at a minimum include compliance with the following:
Entry into a project labor agreement and obtaining letters of assent from each contractor/subcontractor.
Convening prebid and preconstruction meetings to educate construction manager and subcontractors about the apprenticeship utilization goals.
Cooperating with representative. The contractor shall cooperate with the representative appointed by the Mayor to ensure compliance with this section. The representative shall provide services in support of the contractor's apprentice hiring goals.
Establish a point of contact to provide information about preapprenticeship or apprenticeship opportunities.
Develop and maintain an up-to-date list of persons who have been offered opportunities and those who are working on the project.
Facilitate relationships among approved apprenticeship programs and contractors to enable prompt referrals.
Regularly contacting and documenting of contact with the representative and providing certified payroll and other records on a regular basis to the representative.
Use and documenting use of City-approved craft request forms sent to both unions and City representative. Craft request form, as defined herein, means a document through which contractors shall request workers from unions.
Requesting apprentices that are City residents from union hiring halls.
Documenting reasons for not hiring referred candidates from target populations, if applicable.
Allowing the City representative prompt and willing access to documentation of all of the above activities and to the work site if requested.
For each contractor and subcontractor performing work on a covered project, the project labor agreement shall contain female and minority employment goals that are consistent with the guidelines set forth by the Division of Public Contracts Equal Employment Opportunity Compliance established in the State Department of the Treasury, pursuant to N.J.A.C. 17:27-7.2.
Monitoring and enforcement. Each contractor and subcontractor subject to the provisions of this chapter shall submit the completed certified declaration of compliance form prior to commencing work on the covered project.
Contractors and subcontractors. All contractors on covered projects shall require that their subcontractors comply with the provisions of this chapter. Language indicating the subcontractor's agreement to comply shall be included in the contract between the contractor and subcontractor and shall contain a provision making such terms enforceable by the City. Copies of such agreements shall be submitted to the City.
Reports. All contractors and subcontractors shall report to the respective Director or his or her designee on a quarterly basis according to the following schedule (by March 31, June 30, September 30 and December 31 of each year) and shall provide the following information, certified and notarized, for each covered contract for which work was performed during the previous quarter:
Manning report. The developer's/contractor's report, as the case may be, will accurately reflect the total hours in each construction trade or craft and the number of hours worked by City residents, including a list of minority resident and women resident workers in each trade or craft, and will list separately the work hours performed by such employees of the contractor and each of its subcontractors during the previous quarter.
Certified payroll report. The developer's/contractor's report, as the case may be, will specify the residence, gender and ethnic/racial origin of each worker, work hours, and the rate of pay and benefits provided.
Equal employment opportunity reports. A copy of the labor organization's Local Union Report (EEO-3) and Apprenticeship Information Report (EEO-2), which are required to be filed with the United States Equal Employment Opportunity Commission by the labor organization.
Apprenticeship report. The report of the labor organization which shall list the names, addresses and contact information of all persons who were accepted into the apprenticeship program from the target population. The report shall also list the names, addresses and contact information of all persons from the target population who were rejected for admission, with the reasons for rejection, and for those from the target population who failed to finish the program, and the reasons why they failed to complete the program.
Total cost report. In the event construction permits have been issued and more than 12 months has expired from the date of the adoption of the ordinance approving the tax abatement, the developer shall be required to resubmit a current estimate of total construction costs to ensure that the total construction costs do not exceed $15,000, or it will be deemed that this chapter applies.
Final cost report. No later than 90 days following project completion, the developer shall submit a certification of actual total construction costs. All total construction costs shall be certified to the City by the project architect and engineer and are subject to review by the City at the time of application for certificate of occupancy and audit by the City.
Other reports. The developer or the labor organization shall furnish to the City such further information, documents or reports as shall be requested.
Records. Contractors and subcontractors performing work on covered contracts shall maintain certified payroll records for all employees and shall preserve them for a period of three years after completion of the covered contract, making such records available within three days of a written request by the City or its designee and upon inspection without notice.
Site and records access.
All developers, contractors and subcontractors performing work on covered contracts shall permit access for representatives of the City or its designees to all work sites and to all applicable records in order to monitor compliance with the provisions of this chapter.
In the event the City has good cause to believe that any contractor or subcontractor has failed to comply with the provisions of this chapter, the contractor or subcontractor shall be given written notice and afforded an opportunity for a hearing before the appropriate City official prior to the imposition of the sanctions set forth in this section. The decision of the respective Director(s) shall be final.
City remedies. In the event the City has good cause to believe that any contractor or subcontractor on either a publicly funded project or a public works project has failed to comply with the provisions of this chapter, a contractor or subcontractor shall be given written notice of his alleged noncompliance and afforded an opportunity to submit a written response to the City. In the event the City determines any contractor or subcontractor on either a publicly funded project or a public works project has failed to comply with the provisions of this chapter, it shall have available all remedies available at law or equity, which shall include but not be limited to the following:
Suspending or terminating contract, grant, subsidy agreement, or tax abatement agreement in question.
Completing the public works project with a different contractor or subcontractor and require the original contractor or subcontractor to pay all damages and costs in utilizing a substitute contractor or subcontractor and/or make claim on its performance bond.
Debarring the developer, contractor or subcontractor from eligibility for future City contracts and for financial assistance.
Assessing liquidated damages in the amount of 5% of the value of the contract or subsidy in question.
For late filing of any report or record or the prohibition of any access required for same under Subsection C, D or E hereof, a payment of $1,000 per day for each day that the report is late for up to 15 days shall apply. After 15 days the failure to provide same shall constitute a material breach and the above remedies shall apply.
Such other remedies available at law or in equity.
The City shall include language in all grant agreements or other documents approved by the Municipal Council providing financial assistance on covered projects, including financial agreements in connection with long-term tax abatements, requiring compliance with this chapter.
Any advertisement for a public works project published 60 days or more following the effective date of the chapter shall contain provisions conditioning the award of any contract to be in compliance with this chapter.
The Mayor or his designees may promulgate regulations or policies implementing this chapter.