#3 Schedule public hearing to amend ordinance regulating prevailing wages on construction projects (File Ord. #2010-462)
PUBLIC WORKS DEPARTMENT MEMORANDUM
September 8, 2010
TO: City Council
FROM: Carl J. Weber P.E., Director of Public Works
SUBJECT: Introduce and Schedule a Public Hearing on a Proposed Ordinance
amending JGO Chapter 2.56 regulating the payment of prevailing
wages on public works construction projects and publicly funded
private construction projects with penalties as set forth in proposed
JGO 2.56.070. (File Ord. 2010-462)
Staff Recommendation
Staff recommends that the City Council schedule Proposed Ordinance 2010-462
amending JGO Chapter 2.56 regulating the payment of prevailing wages on public
works construction projects and publicly funded private construction projects for a
public hearing on October 11, 2010.
City Manager’s Recommendation
The major impact of this change would be to changing the prevailing wage
requirement for projects from $10,000 to $25,000 and then making it consistent
going forward with State Statute.
Requested Action
Schedule Proposed Ordinance 2010-462 for a public hearing on October 11, 2010.
Request
Due to recent changes in State statutes, staff seeks to update a related local
ordinance to be in compliance with state statutes.
Background
Effective January 1, 2010, there were significant changes to State of Wisconsin
prevailing wage laws. These changes included the elimination of single and
multiple trade thresholds that change each year and the creation of a single
unchanging threshold of $25,000. Most recently, on 1/1/09, the threshold was
$48,000 for single trade projects and $234,000 for multiple trade projects. In
addition, State law now requires that prevailing wages be paid on publicly funded
private construction projects which receive public assistance of $1,000,000 or
more.
Analysis
The proposed Ordinance No. 2010-462 amends JGO Chapter 2.56, so as to
include a requirement for the payment of prevailing wages on private construction
projects which receive public funding greater than a threshold established by the
State (currently $1,000,000). It also updates to the threshold for public works
1
construction projects (currently $25,000). Finally it establishes a reference to State
statutes which will automatically coordinate the thresholds in the ordinance with
those in the State statutes which may be amended from time to time.
cc: Eric Levitt, City Manager
Jacob J. Winzenz, Assistant City Manager/Dir. of Administrative Services
2
ORDINANCE NO. 2010 - 462
An ordinance amending JGO Chapter 2.56 regulating the payment of prevailing wages on public
works construction projects and publicly funded private construction projects with penalties as
set forth in proposed JGO 2.56.070.
THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS
FOLLOWS:
SECTION I.
Chapter 2.56 of the Code of General Ordinances of the City of Janesville is hereby
amended to read as follows:
Chapter 2.56
PUBLIC WORKS CONTRACTS WAGE SCALE
Sections:
2.56.010 Definitions
2.56.020 Application
2.56.030 Minimum Wage Scale
2.56.040 Records and Compliance
2.56.050 Posting of Wage Scale
2.56.060 Use of City Employees
2.56.070 Penalties.
2.56.010 Definitions
.
ABuilding or work
. "" shall mean construction activity, including the delivery of
mineral aggregate such as sand, gravel, asphaltic concrete or stone which is incorporated into the
work under contract with the City by depositing the material substantially in place, directly or
through spreaders, from the transporting vehicle. "Building or work" does not include the
manufacturing, furnishing of materials, or servicing and maintenance work.
A. “Direct financial assistance”
shall means moneys, in the form of a grant or other
agreement or included as part of a contract, cooperative agreement, or any other arrangement,
including a redevelopment agreement under Section 66.1333(5) of the Wisconsin Statutes as
from time to time amended or renumbered, economic development agreement, contract under
Section 66.1105(3) of the Wisconsin Statutes as from time to time amended or renumbered, or
assistance provided under Section 66.1109 of the Wisconsin Statutes as from time to time
amended or renumbered, that the City directly provides or otherwise directly makes available to
assist in the erection, construction, repair, remodeling, demolition of a private facility. "Direct
financial assistance" does not include any of the following: A public works contract, a supply
procurement contract, a contract of insurance or guaranty, a collective bargaining agreement, or
any other contract under which moneys are not directly provided or otherwise directly made
available for that assistance.
B.Person
"" shall mean each person, firm, partnership, corporation, cooperative,
joint venture, organization and entity of whatsoever kind or nature.
CPublic works construction
. "" shall mean building or work involving the erection,
construction, remodeling, or repairing demolishing of a public work for the City., including all of
the following: of buildings, parking lots, sidewalks, street lighting, traffic signals, sanitary and
storm sewers, water mains and appurtenances, and the grading or landscaping of public lands.
“Public works construction” does not include a project in which the labor for the project is
provided by unpaid volunteers, minor service or maintenance work, warranty work, or work
under a supply and installation contract. “Public works construction” includes all of the
following:
1)
(A highway, street, bridge, building, or other infrastructure project.
(2)
A project erected, constructed, repaired, remodeled, demolished by one
local governmental unit for another local governmental unit under a contract under Sections
66.0301(2), 83.03, 83.035, or 86.31(2)(b) of the Wisconsin statutes as from time to time
amended or renumbered or under any other statute specifically authorizing cooperation between
local governmental units.
(3)
A project in which the completed facility is leased, purchased, lease
purchased, or otherwise acquired by, or dedicated to, a local governmental unit in lieu of the
local governmental unit contracting for the erection, construction, repair, remodeling, demolition
of the facility.
(4)
A road, street, bridge, sanitary sewer, or water main project in which the
completed road, street, bridge, sanitary sewer, or water main is acquired by, or dedicated to, a
local governmental unit, including under Section 236.13 (2) of the Wisconsin Statutes as from
time to time amended or renumbered, for ownership or maintenance by the local governmental
unit.
D.“Publicly funded private construction project”
shall mean a construction
project in which the developer, investor, or owner of the project receives direct financial
assistance from the City for the erection, construction, repair, remodeling, demolition, including
any alteration, painting, decorating, or grading, of a private facility, including land, a building, or
other infrastructure. "Publicly funded private construction project" does not include a project in
which the labor for the project is provided by unpaid volunteers, minor service or maintenance
work, warranty work, or work under a supply and installation contract. "Publicly funded private
construction project" does not include a project of public works or a housing project involving
the erection, construction, repair, remodeling, demolition of any of the following:
(1)
A residential property, if the project is supported by affordable housing
grants, home improvement grants, or grants from a local housing trust fund.
(2)
A residential property containing 4 dwelling units or less.
(3)
A residential property that contains retail, office, or commercial
components, if the project is intended to increase the supply of affordable housing in a
community.
2.56.020 Application
.
A.
This Chapter shall be applicable to any municipal public works construction
contract project as required by Section 66.0903 of the Wisconsin Statutes as from time to time
amended or renumbered over Ten Thousand ($10,000.00) Dollars.
B.
This Chapter shall be applicable to any publicly funded private construction
project as required by Section 66.0904 of the Wisconsin Statutes as from time to time amended
or renumbered.
2.56.030 Minimum Wage Scale
.
A
. Establishment of Minimum Wage Scale. Prior to the bidding or letting of a public
works construction contract, the City Engineer or his/her designee shall determine the prevailing
wage rate, hours of labor, and hourly basic pay rates for all trades and occupations required to
complete the contemplated public works construction and building or work. In making this
determination, the City Engineer shall obtain and incorporate a current schedule of prevailing
wage rates from the Department of Industry, Labor and Human Relations (DILHR) Workforce
Development (DWD) and a current schedule of prevailing wage rates from the Wisconsin
Department of Transportation (WDOT) and shall require the contractor to compensate its
employees at the prevailing wage rate in accordance with Section 66.0903(3) of the Wisconsin
Statutes and DWD 290 of the Administrative Code as from time to time amended or renumbered.
Except for known increases contained within the prevailing wage schedules received from
DILHR DWD and WDOT, the prevailing wage rates shall not change during any public works
construction contract. For publicly funded private construction projects under this Section the
owner or developer of the real property for which the construction is taking place shall determine
the prevailing wage rate, hours of labor, and hourly basic pay rates for all trades and occupations
required to complete the contemplated publicly funded private construction project. In making
this determination, the owner or developer of the real property shall obtain and incorporate a
current schedule of prevailing wage rates from the Department of Workforce Development
(DWD) and shall require all contractors or subcontractors to compensate its employees at the
prevailing wage rate in compliance with this Section and with Section 66.0904(2) of the
Wisconsin Statutes as from time to time amended or renumbered.
B. Incorporation of Minimum Wage Scale in Construction Contracts
.
Whenever the City shall bid any public works construction contract or owner or developer of the
real property for which a publicly funded private construction project is taking place enters a
contract, the bidding documents and construction contracts shall contain the minimum rate of
wage scale and hours of labor as determined in Section 2.56.030 A. of this Ordinance.
C. Workers to be Paid According to Minimum Wage Scale.
No laborer, worker,
or mechanic employed directly upon the site of a public works construction contract or publicly
funded private construction project by the contractor, or by a subcontractor, agent, or other
person, doing or contracting any part of the work, may be paid less than the prevailing wage rate
in the same or most similar trade or occupation; nor may he/she be permitted to work a greater
number of hours per day or per calendar week than the prevailing hours of labor determined
under this subsection, unless he/she is paid for all hours in excess of the prevailing hours of labor
at a rate of at least one and one-half times his/her hourly basic rate of pay. An employee's
classification shall not be changed to a classification of a lesser rate during the contract.
D. Resolving Questions about Minimum Wage Scale and/or Hours.
Questions
regarding employee classification, rate of pay, or hours of labor shall be resolved by reference to
the established practice that predominates in the industry and on which the trade or occupation
classification is based. The determination of the City Engineer shall be final.
2.56.040 Records and Compliance
.
A. Contractor Records.
Each contractor, subcontractor, or agent thereof
participating in a public works construction contract or publicly funded private construction
project covered by this Chapter shall keep full and accurate records clearly indicating the name
and trade or occupation classification of every laborer, worker, or mechanic employed thereby in
connection with the project. The contractor records shall include an accurate record of the
number of hours worked by each employee and the actual wages paid therefore. The contractor
shall require, and each subcontractor or agent shall provide, the contractor with evidence of
compliance with the provisions of this subsection.
B. Evidence of Compliance
. Upon completion of the public works construction
project and prior to the final payment therefore, each contractor shall file with the Janesville City
Engineering Department an affidavit stating that the contractor has fully complied with the
provisions and requirements of this Chapter, and that the contractor has received evidence of
compliance from each of the contractor's subcontractors and agents. No final payment shall be
made until such an affidavit is filed in proper form and order. For publicly funded private
construction projects the evidence and affidavit of compliance from each agent or subcontractor
shall be filed with the contractor. The contractor may not authorize final payment until the
affidavit is filed in proper form and order.
C. Complaints
. Complaints made against any of the provisions of this Chapter may
be investigated by the City Engineer or his/her designee, or may be referred to DILHR DWD in
accordance with the provisions of Sections 66.0903 (10)(c) or 66.0904 (8)(c) of the Wisconsin
Statutes as from time to time amended or renumbered ss 66.293 (3) (m). The City Engineer or
his/her designee, may demand and examine copies of any weekly payrolls and other records and
information relating to the wages paid to laborers, workers, and/or mechanics on public works
construction contracts or publicly funded private construction projects covered by this Chapter.
D. Inspection
.
(1)
The contractor shall at all times maintain all records pertaining to the
contract and make all such records available for inspection by the City and each and every of its
elected and appointed officials, officers, employees, representatives, or agents.
(2)
Inspection by the City and related others shall be permitted by the
contractor even without prior notice during normal business hours.
(3)
Failure to permit any inspection shall constitute a separate violation, each
day's continuance constituting a separate violation.
2.56.050 Posting of Wage Scale
. For the information of the employees working on
the public works construction contract or publicly funded private construction project, the
minimum wage rates and hours of labor determined under Section 2.56.030 A. of this Chapter
shall be kept posted by the contractor in at least one conspicuous and easily accessible place at
the site of the public works construction contract or publicly funded private construction project.
2.56.060 Use of City Employees on Building or Public Works Construction.
No provision in this Chapter shall be interpreted as in any way limiting the City's right to
use City employees to perform building or work or public works construction consistent with
State Statutes.
2.56.070 Penalties.
A.
Any person who violates any rate of wage, hours of labor, related to or other
provision of this Chapter shall, upon conviction, pay a forfeiture to the City of not less than One
Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) for each violation,
together with the costs of prosecution. Upon default in forfeiture payment, such person shall be
incarcerated for not more than ninety (90) days or otherwise penalized as provided by law.
B
. The failure to pay the required wage to an employee for any one week or part
thereof shall constitute a separate violation.
C
. Each day that a person fails to pay the required wage to an eligible employee once
it is determined that such wage should have been or should be paid shall constitute a separate
violation.
D.
In addition to and not in lieu of any other penalty or forfeiture provided in this
Chapter, the City may seek injunctive relief.
E
. In addition to and not in lieu of any other penalty or forfeiture provided in this
Chapter, the City may disqualify, refuse to prequalify, and/or refuse to contract with any person
who violates any provision of this Chapter.
ADOPTED: Motion by:
Second by:
APPROVED:
Councilmember Aye Nay Pass Absent
Brunner
McDonald
Eric J. Levitt, City Manager
Perrotto
Rashkin
ATTEST:
Steeber
Truman
Voskuil
Jean Ann Wulf, City Clerk-Treasurer
APPROVED AS TO FORM:
__________________
Assistant City Attorney
Proposed by: Public Works Department
Prepared by: Assistant City Attorney