[HISTORY: Adopted by the Township Council of the Township
of Montclair 7-23-2019 by Ord. No. O-19-024. Amendments noted where applicable]
This chapter shall ensure that large construction projects with
total costs that exceed $5,000,000, 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 wages careers
in the construction trades for a new generation of workers Projects
which exceed the $5,000,000 threshold 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 federally-approved 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.
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.
The Township 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 project or contract
on a publicly funded project contemplated by this chapter.
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 redevelopment
area financing project or the contractor for a public works project.
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.
Any entity that is organized as a nonprofit or not-for-profit
entity, corporate or otherwise as a governmental entity.
A contract between a contractor/labor organization, and a
developer and/or the Township of Montclair that contains, at a minimum,
the requirements set forth in this chapter.
Any organization which conducts a profit-making business
and is not otherwise organized as a nonprofit organization or governmental
entity.
Building, altering, repairing, improving or demolishing any
public structure or facility constructed, acquired or otherwise owned
by the Township of Montclair to house local government functions or
provide water, waste, disposal, power, transportation and other public
infrastructure.
Includes public works projects that the Township of Montclair
directly undertakes with total costs that exceed $5,000,000 and redevelopment
area financing projects with total costs that exceed $5,000,000.
A project that has a total construction cost that is equal
to or exceeds $5,000,000, exclusive of any land acquisition costs,
which and receives (1) a tax exemption pursuant to N.J.S.A. 40A:20-1
et seq. or N.J.S.A. 40A:21-1 et seq. and (2) receives some form of
redevelopment area financing such as an affordable housing trust fund
grant, a community block development grant, or a redevelopment area
bond.
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 or may not be in privity of contract with the Township
of Montclair.
Shall be inclusive of environmental work, demolitions, pre-construction
and construction costs.
The terms of this chapter, set forth in § 51A-4 below are applicable to covered projects. "Covered projects" includes public works and publicly funded projects.
To the extent of 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) or any
other applicable New Jersey statute, the statute shall control. To
the extent the provisions of this chapter conflict with the Township's
ordinance implementing an Affirmative Action Program (Ordinance No.
7 of 1982)[1], this chapter shall prevail. To the extent this chapter
conflicts with any additional local ordinances, this chapter shall
control.
A.
Projects labor agreement required. 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 Township
Manager or his designee determines that it is in the best interests
of the Township 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 conditions that the construction
manager for the contract shall negotiate a project labor agreement
in good faith with one or more labor organizations.
B.
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).
(1)
Advance the interests of the Township of Montclair, including the
interests in cost, efficiency, quality, timeliness, skilled labor
force, and safety;
(2)
Contain guarantees against strikes, lock-outs, or other similar actions;
(3)
Set forth effective, immediate, and mutually binding procedures for
resolving jurisdictional and labor disputes arising before the completion
of the work;
(4)
Be made binding on all contractors and subcontractors on the project
in all relevant documents, including bid specifications;
(5)
Require that each contractor and subcontractor working on the project
utilize have an apprenticeship program as defined herein;
(6)
Fully conform to all statutes, regulations and Township of Montclair
ordinances regarding the implementation of set-aside goals for women
and minority owned businesses, the obligation to comply with which
shall be expressly provided for in the project labor agreement;
(7)
Include a publicly available plan which is in full conformance with
the requirements of all applicable statutes, regulations, executive
orders and Township ordinances 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;
(8)
State that contractors and subcontractors need not be a party to
a collective bargaining agreement with the applicable labor organization
other than for the project covered by the project labor agreement;
(9)
Require the Township 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 Township 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;
(10)
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 Montclair residents
were not in line for referral under normal hiring hall procedures;
(11)
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 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 organization and the public entity;
(12)
State that the terms of the project labor agreement shall prevail
over conflicting terms of any collective bargaining agreements;
(13)
Require that the labor organization utilize members who are
Montclair residents as their first choice for staffing without regard
of any other preferential status; and
(14)
Require that 10% of the labor hours required shall be performed
by the Montclair residents who are participating in the apprenticeship
program and that 100% of the apprentices shall be Essex County residents.
C.
Advertisement. At such time as its sponsored apprentice program is
seeking applications, the labor organization will advertise in two
newspapers regularly published and distributed in the Township and
outreach via other media, such as cable television, the Internet and/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.
D.
Pre-construction meeting. Not less than 30 days prior to the commencement
of construction, the developer shall meet with the appropriate Township
officials, 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.
E.
Job fairs. The developer and the labor organization will jointly
participate in a job fair to be held in the Township 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 manner that is consistent
with N.J.A.C. 17:27-7.2; however, a contractor shall not be subject
to enforcement actions for violation 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:
A.
Entry into a project labor agreement and obtaining letters of assent
from each contractor/subcontractor;
B.
Convening pre-bid and pre-construction meetings to educate construction
manager and subcontractors about the apprenticeship utilization goals;
C.
Cooperating with Township representative. The contractor shall cooperate
with the representative appointed by the Manager to ensure compliance
with this section. The representative shall provide services in support
of the Contractor's apprentice hiring goals;
D.
Establish a point of contact to provide information about pre-apprenticeship
or apprenticeship opportunities;
E.
Develop and maintain an up-to-date list of persons who have been
offered opportunities and those who are working on the project;
F.
Facilitate relationships among approved apprenticeship programs and
contractors to enable prompt referrals;
G.
Assist contractors with reporting by working with contractors and
the representative where appropriate;
H.
Regularly contacting and documenting of contact with the representative
and providing certified payroll and other records on a regular basis
to the representative;
I.
Use and documenting use of Township-approved craft request forms
sent to both unions and Township representative craft request form,
as defined herein means a document through which contractors shall
request workers from unions;
J.
Requesting apprentices that are Township residents from union hiring
halls;
K.
Documenting reasons for not hiring referred candidates from target
populations, if applicable;
L.
Allowing the Township 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 pursuant
to N.J.A.C. 17.27-7.2.
A.
Monitoring and enforcement. Each contractor and subcontractor subject
to the provisions of this chapter shall submit to the Township a completed
certified declaration of compliance form prior to commencing work
on the covered project.
B.
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 Township. Copies of such agreements shall be submitted
to the Township.
C.
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.
(1)
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 Township 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.
(2)
Certified payroll report. The developers/contractors, as the case
may be, that will specify the residence, gender and ethnic/racial
origin of each worker, work hours, and the rate of pay and benefits
provided.
(3)
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 Equal Employment Opportunity
Commission by the labor organization.
(4)
Apprenticeship report. The report of the labor organization that
shall list the names, address and contact information of all Montclair
residents who were accepted in to the apprenticeship program. The
report shall also list the names, address and contact information
of all Montclair residents who were rejected for admission, with the
reasons for rejection and, for those Montclair residents who failed
to finish the program, the reasons why they failed to complete the
program.
(5)
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 $5,000,000
or it will be deemed that this chapter applies.
(6)
Final cost report. No later than 90 days following project completion,
the developer shall submit a certificate of actual total construction
costs. All total construction costs shall be certified to the Township
by the project architect and engineer and is subject to review by
the Township at the time of application for certificate of occupancy
and audit by the Township.
(7)
Other reports. The developer or the labor organization shall furnish
to the Township of Montclair such further information, documents or
reports as shall be requested.
D.
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 Township or its designee and upon
inspection without notice.
E.
Site and records access. All developers, contractors and subcontractors
performing work on covered contracts shall permit access for representatives
of the Township or its designee to all work sites and to all applicable
records in order to monitor compliance with the provisions of this
chapter. In the event the Township 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
Township official prior to the imposition of the sanctions set forth
in this section. The decision of the respective director(s) shall
be final.
F.
Township remedies. In the event the Township 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, said contractor or subcontractor shall be given written
notice of their alleged noncompliance and afforded an opportunity
to submit a written response to the Township In the event the Township
determines 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, it shall have available all remedies
available at law or in equity, which shall include, but not be limited
to the following:
(1)
Suspending or terminating the contract, grant, subsidy agreement,
or tax abatement agreement in question;
(2)
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 their performance bond;
(3)
Debarring the developer, contractor or subcontractor from eligibility
for future Township contracts and for financial assistance;
(4)
Assessing liquidated damages in the amount of 5% of the value of
the contract or subsidy in question;
(5)
Late filing of any report or record or the prohibition of any access required for same under Subsections 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 applies. After 15 days, the failure to provide same shall constitute a material breach and the above remedies shall apply;
(6)
Such other remedies available at law or in equity.
A.
The Township shall include language in all grant agreements or other
documents approved by the Township Council providing financial assistance
on covered projects, including financial agreements in connection
with long term tax abatements, requiring compliance with this chapter.
B.
Any advertisement for a public works project published 60 days or
more following the effective date of this chapter shall contain provisions
conditioning the award of any contract on compliance with this chapter.
C.
The Manager or his designees may promulgate regulations or policies
implementing this chapter.
