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HomeMy WebLinkAboutMINUTES - 07241990 - S.1 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on ' July 24, 1990 , by the following vote: AYES: Supervisors Powers, Schroder, McPeak, Torlakson, Fanden NOES: None ABSENT: None ABSTAIN: None ------------------------------------------------------------------ ------------------------------------------------------------------ SUBJECT: Proposed Prevailing Wage Ordinance Supervisor Tom Powers brought to the attention of the Board a proposed prevailing wage ordinance which would be limited to industrial construction projects in the unincorporated area of the County and would promote safety on those projects and the public welfare. The Board received the attached memorandum dated July 19, 1990 fT.�om Victor J. Westman, County Counsel, transmitting the proposed_,drdinance and commenting on various aspects of the ordinance. Board members being in agreement, IT IS ORDERED that the ordinance providing prevailing wage standards for industrial facilities construction is INTRODUCED. IT IS FURTHER ORDERED that July 31, 1990 at 11: 00 A.M. is FIXED for a public hearing on this matter. CC: County Administrator County Counsel I hereby certify that this Is a true and correct Copy of an action taken and entered on the minutes of the Board of Supe on the date shown. ATTEST Ep: s 074 /AV PHILOATCHWOR,Clerk of the Board of Supervisors 'and County Administrator By Deputy COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date:. July 19 , 1990 To: Supervisor Tom Powers, DistricttIX�.��, From: Victor J. Westman, County Counse�/l Re: Proposed Prevailing Wage Ordinance As requested, the last submitted draft of the above-noted proposed ordinance has in the attached been placed into Contra Costa County Ordinance Code format. The attached ordinance is in a form which would allow its adoption as an amendment to the County Ordinance Code. Also as requested, this office provides the following comments concerning the attached ordinance for your consideration. 1 . Legal Opinion. In 1988 this office issued its opinion (CC Ops . No. 88-1 ) expressing concern about the legal authority of the County to adopt an ordinance regulating local hiring and the paying of prevailing wage rates . After our 1988 opinion was issued, the California Attorney General in January 1990 issued his Opinion No. 89-502 in which he concluded that a California city (and presumably a California county) has the legal authority to enact an ordinance prohibiting the payment of less than prevailing wages and regulating the employment of properly trained apprentices on involved construction projects . State courts give great weight to the opinions of the California Attorney General but the question of the authority of a city or county to adopt these kinds of local regulations will not be resolved until a reported final decision is entered by the courts on this subject. In any event, the attached ordinance has been drafted to be within the parameters of the legal authority which the California Attorney General has opined is available to California cities and counties . M 2 . Permit Issuance Restriction. Concerning the attached ordinance, it should be noted that its S 526-2 . 808 (together with S 526-2 . 608 ) does not allow the issuance of county building or grading permits for proposed major industrial development until the Community Development Director has determined the involved development will comply with this ordinance and its prevailing wage rate provisions . Usually for this type of regulation, the County would not require this type of predetermination and withholding of building permits, Supervisor Tom Powers, District I -2- July 19, 1990 but would instead pursue a violator once illegal conduct was engaged in. Recently San Mateo County adopted a similar ordinance but directed to residential home building activity. In its ordinance San Mateo County did not prohibit the issuance of permits and require a pre-compliance determination; but, instead provided for the pursuit of remedies (criminal prosecution, stop work orders, etc. ) should violations subsequently occur. You may wish to consideration which is the better approach here concerning the withholding or issuance of building permits . 3 . Operative Date. In section 526-2. 2002 of the attached ordinance it is necessary to insert a date after which it will be operative and applicable to the construction of major industrial developments . One proposal is that that date be the date this ordinance is first introduced (July 24 ) before the Board of Supervisors . Usually when the County adopts this type of legislation which could affect ongoing building projects, it has made it first applicable on the effective date of the ordinance (30 days after the adoption of the ordinance) or some date thereafter. If this ordinance is to be adopted, an operative date must be inserted in S 526-2 . 2002. If we may be of any further assistance, please advise. vJw:df attachment df4:vjw\memo\wage n► ORDINANCE NO. 90- (Providing Prevailing Wage Standards for Industrial Facilities Construction) SECTION I . SUMMARY. This ordinance provides prevailing wage standards for industrial construction projects in the unincorporated area to promote safety on those projects and the public welfare. SECTION II . Division 526 is added to the County Ordinance Code to read as follows: DIVISION 526 PREVAILING WAGES FOR INDUSTRIAL CONSTRUCTION ARTICLE 526-2.2 GENERAL 526-2. 202 . Preamble. The purpose of this division is to promote safety on industrial construction projects in the unincorporated area of the county, to promote the construction of industrial facilities which will not be dangerous to the community and to improve the economic welfare of people who work and live in Contra Costa County by requiring that prevailing wages be paid to workers on those projects . Requiring payment of prevailing wages will attract skilled, qualified, competent workers and will reduce the incentive to hire unskilled workers and thereby reduce the risk of poor quality, unsafe construction. (Ord. 90-_. ) 526-2. 204 . Interpretation. This division should be liberally construed to further the legislative findings and declarations of public policy set forth herein. This division is not intended,. and shall not be interpreted, to conflict with or prevent compliance with applicable federal or state laws, regulations, rules or orders, or so as to create any power or .duty in conflict with the preemptive effectiveness of any federal or state law. (Ord. 90-l. ) -1- ORDINANCE NO. 526-2 . 206 . Fees . Applicants may be charged reasonable fees established pursuant to applicable general laws to defray reasonable expenses incurred by the county for administering this division. (Ord. 90-_. ) 526-2 . 208 Decisions-Notice. All community development director or zoning administrator decisions and determinations made pursuant to this division shall be made in writing and shall be summarized in the next agenda of the county planning commission. (Ord. 90-_. ) ARTICLE 526-2.4 FINDINGS AND DECLARATIONS 526 . 2 .402 . General . The board hereby makes the legislative findings and declarations of public policy following in this article concerning this division. (Ord. 90 526-2 .404 . Location. Contra Costa County is the location of many large industrial facilities, including refineries, chemical companies , metal processing plants, manufacturing plants, hazardous waste incinerators, hazardous waste treatment facilities, primary metals industries, petrochemical industries, power plants, pesticide manufacturers, producers and users of diesel, gasoline, jet fuel, solvents, acids, industrial oils, industrial oils, industrial fuels and chemicals . These facilities are sometimes near residential neighborhoods, which contain homes, schools, hospitals and other community facilities. (Ord. 90-_. ) 526-2 .406 . Dangerous materials . Many industrial facilities store large amounts of hazardous and toxic materials on site and use such materials in their industrial processes . They handle toxic and hazardous substances, handle fluids under high pressure and high temperatures and handle and store explosive and combustible materials . Construction, expansion and repair of these facilities must be done so that they can handle -2- ORDINANCE NO. hazardous, toxic, explosive and combustible materials safely, and so that they meet seismic and fire safety requirements, as well as general construction requirements applicable to large industrial projects . (Ord. 90-_. ) 526-2 .408 . Construction workers . These industrial facilities use large numbers of construction workers to construct, repair and expand their plants. These are often hard and dangerous jobs . Use of poorly trained and low-paid workers can result in poor quality construction and use of unapproved construction materials and techniques, jeopardizing public safety. A well trained, highly skilled construction work force is essential to promote quality construction. Safety and quality requirements are often complex in contemporary industrial construction, and their attainment can be jeopardized by the unwitting damage caused by unskilled workers . (Ord. 90-^. ) 526-2 .410 . Proper construction. it is critical to the public safety that large industrial plants which store and use toxic and hazardous materials, process fluids under high temperatures or pressures, and handle or store explosive or combustible materials, be constructed so that they are safe to use and operate. Improper construction of such facilities can lead to accidents, including fires, .explosions, and release of toxic gases, which are a danger to the workers at such facilities and to the nearby community. New industrial facilities must meet significant structural and fire safety requirements in order to protect the public safety. The use of inadequately trained construction workers can lead to serious violations of structural and fire safety requirements, and can jeopardize the public safety. (Ord. 90-_. ) 526-2 . 412 . Safety element. There are more heavy industrial facilities in Contra Costa County than in most other California counties . The 1975 Safety Element of the County General Plan designates these facilities as hazardous land uses and finds that they create a potential for significant risk to public safety because of the hazardous nature of petroleum and chemical materials, and toxic and hazardous substances . The Safety Element finds that these substances are present in the county in large quantities and create a potential safety hazards, -3- ORDINANCE NO. particularly when they are close to our upwind of populated areas . There are more than twenty Superfund sites in the county. (Ord. 90-_. ) 526-2 .414 . Past experience. In the past, industrial facilities have employed poorly trained workers at low wages to construct, repair and expand such facilities . There have been fatal accidents and serious injuries to construction workers at these plants . The poor quality of construction has led to concerns about community safety. Recently there have been reports of unusually large number of explosions and accidents at large industrial facilities, which have killed and injured workers, destroyed large amounts, of private property, and killed and injured members of the. public. (Ord. 90-_. ) 526-2 .416 . Low wage workers. Additionally, as a recent study has demonstrated, the region has suffered economically from the payment of low wages to construction workers . Low paid workers place a demand on public services, such as welfare, food stamps, health care, schools, housing and on law enforcement. Meeting this demand is costly to the public. What workers lose in wages must often be made up in public services by the taxpayers . Low paid workers often cannot afford adequate housing and are forced to live in unsafe and unsanitary conditions, or to camp out on the construction site. Paying low wages is also detrimental to the local economy, since it creates fewer secondary jobs, and results in less local spending: (Ord. 90-_. ) 526-2 . 418 . Inspectors . County building inspectors are often overworked making it difficult for them to supervisor each phase of construction. Public safety often depends upon private supervision of construction and upon a skilled construction work force: (Ord. 90 ) 526-2 . 420 Trained workers . Major new industrial development in , Contra costa County is a potential source of significant construction employment, and the region provides a pool of trained construction workers who have the skill levels necessary to construct such major new developments in a manner consistent with the protection of public safety. (Ord. 90-_. ) -4- ORDINANCE NO. 1� 526-2 .422 . Adequate wages . Paying workers at the prevailing wage rate will reduce the burden on public services because such workers will be: better able to afford health insurance, better able to afford to plan for retirement, better 'able to afford decent, safe and sanitary housing, able to contribute to education through property tax, and employed at wages which will not require them to make use of welfare programs . Recent studies have demonstrated that paying less than prevailing wages costs the county millions of dollars annually in lost purchasing power. (Ord. 90-_. ) 526-2 .424 . New development. One of the primary purposes of new industrial development is to promote economic prosperity. The county may accept adverse environmental, social and fiscal impacts associated with new development, in the belief that the development will be economically beneficial in the long term, partly because the new development will provide employment for construction workers . (Ord. 90-_. ) 526-2 . 426 . Adoption. Adoption of this division serves the general welfare of the community because it: ( 1) promotes safety and higher quality of construction in large industrial projects; (2). maintains and improves the standard of living of construction workers.,, and thereby improves the economy as a whole; and ( 3) relieves the burden on public services caused by low- paid and unemployed construction workers . (Ord. 90-,. ) ARTICLE 526-2.6 DEFINITIONS 526-2 . 602 . General . Unless otherwise specifically Provided, or required by the context, the following terms have these meanings in this division. (Ord. 90-_. ) -5- ORDINANCE NO. I 526-2 . 604 . Applicant. "Applicant" means the person or entity owning the land, or having the right to use the land, upon which major industrial development will occur. (Ord. 90-_. ) 526-2 . 604 . . Approved apprenticeship program. "Approved apprenticeship program" means an apprenticeship program which has been approved by the California Apprenticeship Council, Department of Industrial Relations, pursuant to Title 8, California Code of Regulations, section 200, et seq. pursuant to 29, U.S .C. §50 et seq. (Ord. 90-_. ) 526-2 . 606 . Base wage. "Base wage" means the basic straight time, overtime, or holiday rate of hourly pay which is determined to be prevailing pursuant to California Labor Code §§ 1773 and 1773 . 1 or any successor statutes . (Ord. 90-_. ) 526-2 .608 . Commencement of construction. "Commencement of, construction" means the issuance of either a building permit or a grading permit, whichever comes first, if either such permit is required. If neither a grading permit nor a building permit is required, commencement of construction means the initiation of construction or grading, whichever comes first. (Ord. 90-_. ) 526-2 .610 . Construction work. "Construction work" means work that is traditionally and historically within the jurisdiction of the building trades and crafts, whether that work is performed at a construction site or off-site. (Ord. 90-l. ) 526-2 . 612 . Construction workers . "Construction workers ' means those persons who perform construction work on a major industrial development at any time between the commencement of construction and the completion of construction work. Construction workers include both journey level workers and apprentices . (Ord. 90-_. ) 526-2 . 614 . Employer. "Employer" means a person or entity who employs a construction worker on a major industrial development. "Employer" includes the applicant, any tenant or subtenant in the major industrial development or any contractor -6- ORDINANCE NO. or subcontractor performing construction work on the major development. (Ord. 90-_. ) 526-2 .616 . Employer payments . "Employer payments" means the employer payments set forth in California Labor Code S 1773 . 1, or any successor provision. (Ord. 90-_. ) 526-2 . 618 . Employee benefit plan. "Employee benefit plan" shall have the same meaning as that term has in the Employee Income and Retirement Security Act (ERISA) , 29 U.S.C. S 1002 or its successor. 526-2 . 620 . Maior industrial development. "Major industrial development" means construction which costs more than $500, 000 . 00 and which is for a use permitted under section 84- 56 .402(4 ) , section 84-58 .402, section 84-60-402, or section 84- 62 . 402 of the code, or for a use which requires a land use permit under chapter 84-63 of the code, or any successor provisions. (Ord. 90-_. ) 526-2 . 622 . Per diem wages . "Per diem wages" means per diem wages as set forth in California Labor Code SS 1773 and 17,73. 1, or any successor statutes . (Ord. 90-_. ) 526-2 . 624 . Prevailing wage. "Prevailing wage" means the "per diem wages" as set forth in California Labor Code SS 1773 and 1773 . 1, or any successor statutes . (Ord. 90-_. ) ARTICLE 526-2.8 PER DIEM WAGE REQUIREMENTS 526-2 . 802 . Wages . All construction workers on a major industrial development shall be paid wages not less than per diem wages . Such wages, including all employer payments, shall be paid directly to each construction worker as wages, provided, however, that if employer provides an employee benefit plan in which the construction worker is a participant, the per diem wages shall be disbursed in accordance with such employee benefit plan and the balance shall be paid to the construction worker as wages provided, however, that the amount paid as wages shall not be less than the base wage. Per diem wages shall be paid from -7- ORDINANCE NO. commencement of construction through completion of construction. Nothing in this subsection shall require any employer to establish or participate in or be bound by the terms of an employee benefit plan. (Ord. 90-_. ) 526-2 . 804 . Apprentices . All apprentices on a major industrial development shall be obtained from an approved apprenticeship program unless the employer is unable to obtain such apprentices within two business days of making a request for such apprentices, in which case the employer may obtain apprentices from any source. Nothing contained in this Ordinance shall require an employer to hire apprentices . (Ord. 90-,. ) 526-2 . 806 . Hours worked. The number of hours worked on any major industrial development by apprentices shall not exceed one hour for each five hours worked by journey level workers . (Ord. 90-_. ) 526-2 . 808 . Compliance determination. Commencement of construction of a major industrial development shall not be initiated and undertaken until the Director of Community Development has made a written determination that the development complies with this division. (Ord. 90-_. ) ARTICLE 526-2.10 ADMINISTRATION 526-2 . 1002 . Prior determination. The director of community development shall make a written determination as to whether or not a major industrial development complies with the requirements of this division. The determination shall be made prior to issuance of a grading permit or building permit, whichever comes first. If no grading permit or building permit is required, then such determination shall be made prior to commencement of grading or building, whichever comes first. (Ord. 90-,. ) 526-2 . 1004 . Information. No later than sixty days prior to commencement of construction, the applicant shall provide all information in a form as required by the Director of Community Development to make the determination required by this article. The application for a building permit or a grading permit, -8- ORDINANCE NO. whichever is applicable, shall not be deemed complete until such information and form has been received by the Director of 11 Community Development. (Ord. 90- 526-2 . 1006 . Compliance determination. Pursuant to section 526-2 . 808, the Director of Community Development's written compliance determination, in a form established by the Director, that he is satisfied the applicant will comply with this division must be made and issued prior to the commencement ofgconstruction. Such a compliance determination shall not be made issued unless and until the applicant executes and files with the Director a written acknowledgement of, and statement of intent to comply with the provisions of this division. This acknowledgment may be submitted with the information required by section 526-2. 1004 . (Ord. 90-_. ) 526-2 . 1008 . Accurate records. The Director of Community Development shall keep an accurate record for at least three years of all of the information provided by the applicant seeking a written determination under this division. The record shall be subject to the provisions of the California Public Records Act (Government Code S 6.240, et seq. ) , or any successor provisions . (Ord. 90-_. ) ARTICLE 526-2.12 APPLICANT AND EMPLOYER DUTIES con526-2 . 1202 . Contracts . The applicant shall cause each struction contract and subcontract for the major industrial development to contain a requirement for compliance with this division and payment of not less than per diem wages, for obtaining apprentices as required by this division, and for maintaining an appropriate ratio of apprentice hours to journey level hours. (Ord. 90-_. ) 526-2 . 1204 . Posting. Each employer shall be responsible for posting the current per diem wage rates for all construction workers in a prominent, visible and easily accessible place on the site of the major industrial development. (Ord. 90-_. ) I -9- ORDINANCE NO. k 526-2 . 1206 . Payroll records . Each employer shall keep accurate payroll records in the manner specified in Labor Code 5 1776 (a) . Certified copies of the payroll records shall be available for inspection at all reasonable hours at a local office of each employer. Copies of the records shall be provided upon request to a representative of the county, a construction worker, the construction worker's authorized representative, or a member of the public within ten (10) days after receipt of a written request for the records. A reasonable copying fee, not in excess of $0 . 25 per page, may be charged only when the request is from a member of the public. The addresses and social security numbers of employees shall be masked or deleted so as to prevent disclosure in copies furnished to the county or to the public . The failure of an employer to comply with the requirements of this section to maintain and make available accurate payroll records shall create a presumption that per diem wages have not been paid. (Ord. 90-_. ) 526-2 . 1208 Each employer shall maintain accurate records demonstrating its compliance with the requirements of article 526-2 . 8 with respect to each of its employees. Copies of the records shall be provided upon request to a representative of the county, a construction worker, the construction worker's authorized representative, or a member of the public within ten ( 10) days after receipt of a written request for the records . A reasonable copying fee, not in excess of $0 . 25 per page, may be charged only when the request is from a member of the public . The failure of an employer to comply with the requirements of this section to maintain such records shall create a presumption of non-compliance with the requirements of article 526-2 . 8 . (Ord. 90-_. ) ARTICLE 526-2.14 ENFORCEMENT 526-2 . 1402 Wage recovery. In addition to any other rights provided by California law to recover compensation, a construction worker who has been paid less than per diem wages shall have a right to commence an action or proceeding against the employer of the construction worker for the difference between the per diem wage rate and the amount paid to such construction worker for each calendar day or portion thereof of which the construction worker was paid less than the wages required to be paid under the provisions of this ordinance. The Al -10- ORDINANCE NO. i is in such an action shall be the liability of the employer for the amount of unpaid wages allegedly due. The prevailing party in such action shall recover costs and such attorney's fees asimay be determined by the court. Ord. 90- G 526-2 .1404 . Incorporation failure. In the .event that the requirements of this division are not incorporated into contracts and subcontracts as required herein, the applicant shall be liable to any construction worker in any action or proceeding for th'e difference between the per diem wage rate required to be paid under this division and the amount actually paid to the construction worker, including costs and attorney's fees as may beiidetermined by the court, as if the applicant were the actual employer. (Ord. 90-_. ) 526-2 . 1406 . Iniunctive relief_ Any construction worker or the collective bargaining representative of any trade engaged in the building and construction industry or the county may bring anlaction for injunctive relief to enforce the provisions of this division. (Ord. 90-_. ) 526-2 . 1408. Other enforcement. Nothing in this division's provisions shall preclude their enforcement by the California Division of Labor Standards Enforcement or any other government agency. (Ord. 90-_. ) Y 526-2 . 1410. Exception. Notwithstanding any other provision of this code to the contrary, no criminal penalties (infraction or misdemeanors) shall attach for any violation of the provisions of this division. (Ord. 90- ARTICLE 526-2.16 WAIVER 526-2 . 1602. Request. Where an applicant believes it is unable to comply with one or more of the requirements of this division and the applicant can demonstrate ( 1 ) that the major industrial development would yield overriding economic benefits tollthe community which equal or exceed the economic benefits to the community from compliance with the requirements of this -11- ORDINANCE NO. ordinance, ( 2) that the applicant would be unable to construct the major industrial development if the provisions of this division were applied to the development and ( 3) that the major industrial development will be constructed as safely as if the provisions of this division were complied with, the applicant may apply to the community development department for a waiver of one or more of the requirements of this division. (Ord. 90-_. ) 526-2 . 1604 . Upon receipt of a written request for a waiver setting forth the justification for it, the zoning administrator shall give at least ten days notice of a public hearing to consider the request for the waiver. As appropriate, such notice shall be given by mail or publication or both. (01rd. 90 ) 526-2 . 1606 . Decision. At the conclusion of the public hearing, the zoning administrator may grant or deny the waiver or grant the waiver subject to such conditions as the zoning administrator believes are reasonably necessary to achieve the purposes of this division. (d rd. 90-_ . ) 526-2 . 1608 . Findings . If the zoning administrator grants or conditionally grants the waiver, he shall adopt written findings based on substantial evidence introduced at the hearing setting forth: ( 1) The facts demonstrating that application of the requirements of this division would result in the applicant's being unable to construct the major industrial development; and ( 2) The facts which show that there are overriding economic benefits to the community which equal or exceed the economic benefit to the community from compliance with the requirements of this division; and ( 3 ) The facts which show that the major industrial development will be constructed so that public health and safety is; protected to the same extent as it would be if all provisions ofl' the division were complied with. (Ord. 90- -12- ORDINANCE NO. II j �j ARTICLE 526-2.18 APPEALS 526-2 . 1802 . General . Any construction worker, the collective bargaining representative of any trade engaged in the building and construction industry and any person who is aggrieved by a decision or determination of the director of community development or zoning administrator under this division may appeal such decision to the board of supervisors . (Ord. 90- 526-2 . 1804 . Time. The time for filing an appeal from a decision or determination made by the community development director or the zoning administrator shall be no more than ten calendar days from the date of the county planning commission meeting on whose agenda the decision or determination is summarized, but in no event more than thirty days after the date of the decision or determination. The written appeal shall set forth the reasons why the decision of the zoning administrator or the director of community development should be reversed or modified. The appeal shall be filed with the community development department within the time specified herein upon payment of any prescribed fees. (Ord. 90- 526-2 . 1806 . Board review. Upon receipt of an appeal, a hearing thereon shall be fixed before the board and at least 10 F days notice thereof provided Ss required by article 526-2 . 16 . At the hearing on the appeal, the board of supervisors may uphold the decision or determination of the director of community q development or the zoning administrator with or without conditions, may reverse the decision or determination or may •remand the matter to the director of community development or zoning administrator for further consideration. (Ord. 90-_. ) a ARTICLE 526-2.20 MISCELLANEOUS 526-2. 2002 . Operative date . The requirements of this division shall apply to all major industrial developments which commence construction after [July 24, 1990 or effective date of Ord. , etc. 1 . (Ord. 90-_. ) -13- ORDINANCE NO. 526-2. 2004 . Severability. If any part or provision of this division or the application thereof to any person or circumstance is held invalid, the remainder of the division, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this division are severable. (Ord. 90- SECTION III . EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of supervisors voting for and against it in the a newspaper published in this County. PASSED on , by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: PAIL BATCHELOR, Clerk of the Board and County Administrator By: Deputy Board Chair [SEAL] df4:vjw\ord\wage-9ta -14- ORDINANCE NO.