07-085, San Jose Conservation Corp.
~ .
MASTER AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND
SAN JOSE CONSERVATION CORPS:
To carry out community benefit activities, and share in Proposition 84 Funding
l ~!HIS AGREEMENT is made and entered onto this 3;e..b day of
~{,. 'I ,2007 by and between the CITY OF CUPERTINO, a
MUNICIPAL CORPORATION ("CITY"), and SAN JOSE CONSERVATION CORPS,
a California non-profit public benefit corporation ("SJCC"), for community improvement
services on an as-needed basis for the Stevens Creek Corridor Project.
RECIT ALS
The purpose for which this AGREEMENT is made, and all pertinent recitals, are
listed on EXHIBIT A, entitled "RECITALS", which is attached hereto and incorporated
herein.
THE PARTIES HEREBY AGREE AS FOLLOWS:
SECTION 1 SCOPE OF SERVICES.
SJCC shall perform those services specified in detail in EXHIBIT B, entitled
"SCOPE OF SERVICES", which is attached hereto and incorporated herein.
SECTION 2. TERM OF AGREEMENT.
A. The term of this AGREEMENT shall be two (2) years from the date of final
execution of this AGREEMENT as written above, subject to the provisions of SECTION
13 of this AGREEMENT.
B. Prior to the expiration of the term of this AGREEMENT, it may be extended
by written amendment if such an extension is necessary. In no event shall any such
amendment extend the term of this AGREEMENT beyond an additional two (2) years
from the date of final execution of Agreement.
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SECTION 3. SCHEDULE OF PERFORMANCE
The services of SJCC are to be completed according to the schedule set out in
EXHIBIT C, entitled "SCHEDULE OF PERFORMANCE", which is attached hereto and
incorporated herein.
SECTION 4. COMPENSATION.
The total compensation for multiple projects approved under this Master
Agreement, paid to SJCC, including payment for services, supplies, materials, and
equipment provided by SJCC, shall not exceed FIVE HUNDRED THOUSAND AND
NO/1 00 DOLLARS (500,000.00) pursuant to the payment terms set forth in EXHIBIT D,
entitled "COMPENSATION", which is attached hereto and incorporated herein. Any
expenses incurred in the performance ofthis AGREEMENT shall be the sole
responsibility of SJCC.
SECTION 5. METHOD OF PAYMENT.
Payments to SJCC by CITY shall be made within thirty (30) days after receipt of
SJCC's itemized invoice. Request for payment shall be made to:
City of Cupertino
Attention: Therese Smith
10300 Torre Avenue
Cupertino, CA 95014
SECTION 6. INDEPENDENT CONTRACTOR
It is understood and agreed that SJCC, in the performance of the work and
services agreed to be performed by SJCC, shall act as and be an independent contractor
and not and agent or employee of CITY.
SECTION 7. ASSIGNABILITY.
The parties agree that the expertise and experience of SJCC are material
considerations for this AGREEMENT. SJCC shall not assign or transfer any interest in
this AGREEMENT nor the performance of any of SJCC's obligations hereunder, without
the prior written consent of CITY, and any attempt by SJCC to so assign this
AGREEMENT or any rights, duties or obligations arising hereunder shall be void and of
no effect.
SECTION 8. SUBCONSUL T ANTS
A. Notwithstanding Section 7 above, SJCC may use subcontractors in performing
the work under this AGREEMENT based upon prior written approval by CITY's Project
Manager.
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B. SJCC shall be responsible for directing the work of the approved
subcontractors and for any compensation due to subcontractors. CITY assumes no
responsibility whatsoever concerning such compensation.
C. SJCC shall change or add subcontractors only with the prior written approval
pfthe CITY's Project Manager.
SECTION 9. INDEMNIFICATION.
SJCC shall defend, indemnify and hold harmless CITY, its officers, employees
and agents against any claim, loss or liability arising out of or resulting in any way from
work performed under this AGREEMENT due to the willful or negligent acts (active or
passive) or omissions by SJCC's officers, employees or agents. The acceptance of said
services and duties by CITY shall not operate as a waiver of such right of
indemnification. All of CITY's obligations under this Section are intended to apply to the
fullest extend permitted by law and shall survive the expiration or sooner termination of
this AGREEMENT.
SECTION 10. INSURANCE REQUIREMENTS
SJCC agrees to have and maintain the policies set forth in EXHIBIT E, entitled
"INSURANCE REQUIREMENTS" which is attached hereto and incorporated herein.
All policies, endorsements, certificates and/or binders shall be subject to approval by the
Director of Finance or the Director's authorized designee ("Risk Manager") as to form
and content. These requirements are subject to amendment or waiver if so approved in
writing by the Risk Manager. SJCC agrees to provide CITY with a copy of said policies,
certificates and/or endorsements before work commences under this AGREEMENT.
SECTION 11. NONDISCRIMINATION.
SJCC shall not discriminate in any way, against or grant preferential treatment to
any person on the basis of race, sex, color, age, religion, sexual orientation, actual or
perceived gender identity, disability, ethnicity, or national origin, in connection with or
related to the performance of this AGREEMENT.
SECTION 12. CONFLICT OF INTEREST.
SJCC shall at all times avoid conflict of interest or appearance of conflict of
interest in the performance of this AGREEMENT. SJCC shall disclose any conflict of
interest, or potential conflict of interest, which exist or arises at any time during the term
of this AGREEMENT. CITY shall have the right to treat any violation of this Section as
a material breach of this AGREEMENT, and shall have the right to terminate the
AGREEMENT and pursue any and all legal or equitable remedies for said breach of this
AGREEMENT.
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SECTION 13. TERMINATION.
A. CITY shall have the right to terminate this AGREEMENT, without cause, by
giving not less than seven (7) days written notice of termination.
B. If SJCC fails to perform any of its material obligations under this
AGREEMENT, in addition to all other remedies provided by law, CITY may terminate
this AGREEMENT immediately upon written notice.
C. CITY's Parks and Recreation Director IS empowered to terminate this
AGREEMENT on behalf of CITY.
D. In the event of termination, CITY shall pay SJCC for services performed and
supplies, materials, and equipment provided by SJCC to the date of termination.
SECTION 14. GOVERNING LAW.
CITY and SJCC agree that the law governing this AGREEMENT shall be that of
the State of California.
SECTION 15. COMPLIANCE WITH LAWS.
SJCC shall comply with all applicable laws, ordinance, codes and regulations of
the federal, state and local governments.
SECTION 16. CONFIDENTIAL INFORMATION.
All data, documents, discussions or other information developed or received by or
for SJCC in performance of this AGREEMENT are confidential and not to be disclosed
to any person except as authorized by CITY, or as required by law.
SECTION 17. OWNERSHIP OF MATERIALS.
All reports, documents, electronic equivalents or other materials developed or
discovered by SJCC or any other person engaged directly or indirectly by SJCC to
perform the services required hereunder shall be and remain the property of CITY
without restriction or limitation upon their use.
SECTION 18. WAIVER.
SJCC agrees the waiver by CITY of any breach or violation of any term or
condition of this AGREEMENT shall not be deemed to be a waiver of any other term, or
condition contained herein or a waiver of any subsequent breach or violation of the same
or any other term or condition. The acceptance by CITY of the performance of any work
or service by SJCC shall not be deemed to be a waiver of any term or condition of this
AGREEMENT.
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SECTION 19. SJCC'S BOOKS AND RECORDS.
A. SJCC shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to
charges for services, supplies, materials, or equipment provided to CITY for a minimum
period of three (3) years, or for any longer period required by law, from the date of final
payment to SJCC pursuant to this AGREEMENT.
B. SJCC shall maintain all documents and records which demonstrate
performance under this AGREEMENT for a minimum period of three (3) years, or for
any longer period required by law, from the date of termination or completion of this
AGREEMENT.
C. Any records or documents required to be maintained pursuant to this
AGREEMENT shall be made available for inspection or audit, at no cost to CITY, at any
time during regular business hours, upon written request by the CITY's General Counsel,
City Manager, Director of Finance/Budget, City Auditor, or a designated representative
of any of these officers. Copies of such documents shall be provided to CITY office when
it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the
records shall be available at SJCC's address indicated for receipt of notices in this
AGREEMENT.
D. Where CITY has reason to believe that such records or documents may be lost
or discarded due to dissolution, disbandment or termination of SJCC's business, CITY
may, by written request by any of the above named officers, require that custody of the
records be given to CITY and that the records and documents be maintained at the
CITY's office. Access to such records and documents shall be granted to any party
authorized by SJCC, SJCC's representatives, or SJCC's successor-in-interest.
SECTION 20. GIFTS.
A. SJCC is familiar with CITY's policy against the acceptance of any gift by a
CITY officer or designated employee.
B. SJCC agrees not to offer any CITY officer or designated employee any gift
prohibited by City's policy.
C. The offer or giving of any prohibited gift shall constitute a material breach of
this AGREEMENT by SJCc. In addition to any remedies CITY may have in law or
equity, CITY may terminate this AGREEMENT for such breach as provided in
SECTION 13 of this AGREEMENT.
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SECTION 21. DISQUALIFICATION OF FORMER EMPLOYEES.
SJCC shall not utilize either directly or indirectly any officer, employee, or agent
ofSJCC, to perform services under this AGREEMENT.
SECTION 22. SPECIAL PROVISIONS.
Special provisions, if any, to this AGREEMENT are specified in EXHIBIT F,
entitled, "SPECIAL PROVISIONS", which is attached hereto and incorporated herein.
SECTION 23. NOTICES.
All notices and other communications required or permitted to be given under this
AGREEMENT shall be in writing and may be delivered by hand, by facsimile
transmission with verification of receipt, or by United States mail, postage prepaid and
return receipt requested, addressed to the respective parties as follows:
To CITY:
City of Cupertino
Attn: Therese Smith
10300 Torre Avenue
Cupertino, CA 95014
To SJCC:
San Jose Conservation Corps
Attention: Robert J. Hennessy
2650 Senter Road
San Jose, CA 95111
Or to such other address as any party may designate by notice in accordance with this
Section.
A copy of any notice of a legal nature, including, but not limited to, any claims
against CITY, its officers or employees shall also be served in the manner specified
above to the following address:
City of Cupertino
Charles Kilian, City Attorney
20410 Town Center Lane, Ste. 210
Cupertino, CA 95014
Notice shall be deemed effective on the date of personal delivery by hand or the
date of receipt of facsimile transmission (with verification of receipt) or, if mailed, three
(3) days after deposit in the mail.
SECTION 24. VENUE.
In the event that suit shall be brought by either party hereunder, the parties agree
that trial of such action shall be exclusively vested in a state court in the County of Santa
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Clara or, or if federal jurisdiction is appropriate, in the United States District Court for
the Northern District of California, San Jose, California.
SECTION 25. PRIOR AGREEMENTS AND AMENDMENTS.
This AGREEMENT, including all Exhibits attached hereto, represents the entire
understanding of the parties as to those matters contained herein. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered
hereunder. This AGREEMENT may only be modified by a written amendment duly
executed by the parties to this AGREEMENT.
SECTION 26. SEVERABILITY.
If any term, covenant, condition or provision of this AGREEMENT, or the
application thereof to any person or circumstance, shall to any extend be held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions of this AGREEMENT, or the application thereof to
any person or circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
SECTION 27. REPRESENTATION OF AUTHORITY.
The person executing this AGREEMENT on behalf of SJCC does hereby
represent and warrant that SJCC is a duly authorized and existing California corporation,
that SJCC has, is and shall remain during the term of this AGREEMENT qualified to do
business in the State of California, that SJCC has full right, power and authority to enter
into this AGREEMENT and to carry out all actions contemplated by this AGREEMENT,
that the execution and delivery of this AGREEMENT were duly authorized by proper
action of SJCC and no consent, authorization or approval of any person is necessary in
connection with such execution, delivery and performance of this AGREEMENT except
as have been obtained and are in full force and effect, and that this AGREEMENT
constitutes the valid, binding and enforceable obligation of SJCC. Upon CITY's request,
SJCC shall provide CITY with evidence reasonably satisfactory to CITY confirming the
foregoing representations and warranties.
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fo./i tf6tJST6? t
WITNESS THE EXECUTION HEREOF on the day and year first hereinabove
written.
"CITY"
CITY OF CUPERTINO
BY~C~ ~ r
avid Knapp, City Manag~ ..,
Cupertino, CA 95014
(408) 777-3212
{. ~..Of
"SJCC"
2650 Senter Road
San Jose, CA 95111
(408) 918-1009
Employer J.D. No.?;
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4:PJ- 9/ /~ - C; 3--e,TiJ
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EXHIBIT A
RECITALS
A. The CITY is presently engaged in park renovation and creek restoration activities
in The Stevens Creek Corridor, between Stevens Creek Blvd. and McClellan Rd. in
Cupertino, CA.
B. SJCC wishes to provide training in job skills and environmental education to
young men and women through a program that includes projects in public service
construction and conservation work.
C. CITY can provide opportunities for public services through meaningful and
productive community programs.
D. CITY has projects appropriate for Proposition 84 funding and SJCC has identified
CITY as a partner agency, for matching funds to FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($500,000.00).
E. The Cupertino City Council has approved the selection of SJCC for work in the
Stevens Creek Corridor and has endorsed the Proposition 84 partnership.
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EXHIBIT B
SCOPE OF SERVICES
A. SJCC shall provide community construction and conservation services on an as
needed basis and as directed by CITY. Such services shall be limited to special
community projects, including; park and trail improvements; park and facility
construction and creek restoration work.
B. The performance of all services by SJCC shall be to the satisfaction of the CITY.
C. All of the services to be furnished by SJCC under this AGREEMENT shall be of
the professional standard and quality which prevail among SJCCs of similar knowledge
and skill engaged in related work throughout California under the same or similar
circumstances.
D. SJCC shall coordinate all services with the CITY and CITY's separate SJCCs and
contractors performing work on this Project as necessary.
E. All work performed under this AGREEMENT shall be authorized by a Special
Project Approval Form as approved by the CITY's Project Manager. SJCC shall not
perform any services unless authorized by a Special Project Approval Form. Any
unauthorized services performed by SJCC shall be at no cost to CITY.
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EXHIBIT B-1
SAN JOSE CONSERVATION CORPS
PROJECT APPROVAL FORM
Date
San Jose Conservation Corps
Project Approval
Form
Project #
The terms of the "Master Agreement By and Between the City of Cupertino
and the San Jose Conservation Corps to Carry Out Community Benefit
Activities" are incorporated by reference into this Project Approval Form.
1. Project Name:
2. Project Location:
Cross Streets
3. Project Description:
4. Project Start Date:
5. Project Contacts:
Phone:
6. Project financial requirements not to exceed:
Labor:
Materials:
Equipment:
Subcontractors:
7. Materials and equipment needs:
a.Contract not to exceed $
for material, labor, equipment and/or subcontractor costs
9. The City of Cupertino agrees to reimburse the SJCC in full upon the successful
completion of this
project.
Approved:
SJCC Designee
Date
Approved:
City of Cupertino Designee
Date
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EXHIBIT C
SCHEDULE OF PERFORMANCE
All services provided by SJCC pursuant to this AGREEMENT shall be on an as-
needed basis pursuant to a specific Project Approval Form issued to SJCC by CITY.
EXHIBIT D
COMPENSATION
A. The maximum amount of compensation to SJCC under this AGREEMENT,
including payment for professional services, supplies, materials, and equipment provided
by SJCC, shall not exceed FIVE HUNDRED THOUSAND AND NOI100 DOLLARS
($500,000.00).
B. The parties shall negotiate a maximum fee for each project based on the scope of
services for each project. This fee will be specified in a written Project Approval Form.
Any hours worked or expenses incurred in excess of this fee shall be at no cost to the
CITY.
C. Each Project Approval Form shall be paid based on hours worked. If the parties
agree that the fee for the project shall be paid as a lump sum payment, that lump sum
payment shall be for all costs incurred by SJCC in performance of the project and there
shall be no separate payment by CITY for reimbursement expenses.
EXHIBIT E
INSURANCE REQUIREMENTS
SJCC shall procure and maintain for the duration of the AGREEMENT at its sole
cost and expense, insurance against claims for injuries to persons or damages to property
which may arise from, or in connection with, the performance of the work hereunder by
the SJCC, its agents, representative, employees or subcontractors.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office form number GL 0002 (Ed. 01/96) covering
Commercial General Liability and Insurance Services Office Form
Number GL 0404 covering Broad Form Comprehensive General Liability;
or Insurance Services Office Commercial General Liability coverage
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("occurrence") Form Number CG 0001 (Ed. 01/96), including Explosion,
Collapse and Underground; Environmental Impairment Liability; and
2. Insurance Services Office Form Number CA 0001 (Ed. 12/93) covering
Automobile Liability, Code 1 "any auto", or Code 2 "owned autos" and
Endorsement CA 0025. Coverage shall also include Code 8 "hired autos"
and Code 9 "nonowned"; and
3. Workers' Compensation insurance as required by the California Labor
Code and Employers Liability insurance.
B. Minimum Limits of Insurance
SJCC shall maintain limits no less than:
1. Commercial General Liability: $1,000,000 per occurrence for bodily
injury, personal injury and property damage. If Commercial General
Liability Insurance or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to this
projectllocation or the general aggregate limit shall be twice the required
occurrence limit; and
2. Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage; and
3 . Workers' Compensation and Employers Liability: Workers'
Compensation limits as required by the California Labor Code and
Employers Liability limits of $1 ,000,000 per accident.
C. Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to, and approved by,
the CITY. At the option ofthe CITY, either; the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the CITY, its officials,
employees, agents and contractors; or the SJCC shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense
expenses in an amount specified by the CITY.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following Coverages.
1. Commercial General Liability and Automobile Liability Coverages.
a.
The CITY, the City of Cupertino, their officials, employees, agents
and contractors are to be covered as additional insureds as respects:
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liability arising out of activities performed by, or on behalf of, the
SJCC; products and completed operations of the SJCC; premises
owned, leased or used by the SJCC; automobiles owned, leased,
hired or borrowed by SJCc. The coverage shall contain no special
limitations on the scope of protection afforded to the CITY, their
officials, employees, agents and contractors; and
b. The SJCC 's insurance coverage shall be primary insurance as
respects the CITY, their officials, employees, agents and
contractors. Any insurance or self-insurance maintained by the
CITY, their officials employees, agents, or contractors; and
c. Any failure to comply with reporting provisions ofthe policies
shall not affect coverage provided to the CITY, their officials,
employees, agents, or contractors; and
d. Coverage shall state that the SJCC's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respects to the limits of the insurer's liability.
2. All Coverages
Each insurance policy required by this AGREEMENT shall be endorsed to state
that coverage shall not be suspended, voided, cancelled, or reduced
In limits except after thirty (30) days prior written notice has been given
to the CITY.
E. Acceptability of Insurers
Insurance is to be placed with insurers acceptable to the City's Risk
Manager.
F. Verification of Coverage
SJCC shall furnish the CITY with certificates of insurance and with
original endorsements affecting coverage required by this AGREEMENT.
The certificates and endorsements for each insurance policy are to be
signed by a person authorized by that insurer to bind coverage on its
behalf.
G. Subcontractors
SJCC shall include all subcontractors as insureds under its policies or shall
obtain separate certificates and endorsements for each subcontractor.
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EXHIBIT F
NATIONAL SERVICE PROGRAM
National and Community Service Trust Act of 1993, signed into
Law by the President on September 21, 1993 (hereafter the
National Service Act).
The National Service Program
The national service program initially proposed by the Clinton
administration emphasized loan forgiveness for college-bound youth who engaged in a
period of public service work. Because some members of Congress felt the President's
proposal provided insufficient opportunities for low-income youth not planning to attend
college, the administrator bill was amend in the House of Representatives to provide
service opportunities for such youth. The key amendments, which were accepted by the
Senate, authorize the participation of "qualified urban youth corps" (such as the
conservation corps programs earlier described) in federal public works projects at the
local level that do not require great technical skill.
5 The authors of the key amendments were the three California Democrats on the House
Education & Labor Committee-- Congressmen George Miller, Matthew Martinez and
Xavier Becerra -- as well as California Congressman Norman Mineta, Chairman of the
House Committee on Public Works and Transportation.
6 The term "qualified urban youth corps" is defined in the National Service Act as "any
program established by a State or local government or by a nonprofit organization that -
"(A) is capable of offering meaningful, fulltime, productive work for individuals
between the ages 16 and 25, inclusive, in an urban or public works or transportation
setting;
"(B) gives participants a mix of work experience basic and life skills, education,
training, and support services; and
"(C) provides participants with the opportunity to develop citizenship values and
skills through service to their communities and the United States." (S 106 (c) (3).)
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Secretary of Transportation is expressly authorized to "make grants to States (and
through States to local governments) for the purpose of establishing, operating or
supporting qualified urban youth corps that will perform appropriate service projects
relating to transportation resources or facilities."
(Ibid. )
In short, the appropriate federal agencies possess the legal authority to involve state
and local conservation corps in public works projects, and large amounts of funds that
can be used for that purpose have already been appropriated.8 Expansion of conservation
corps can also help ameliorate the unemployment and other problems that will result
from the large number of military base closures in California. It is worth noting, in this
connection, that the National Service Act authorizes the Secretary of Defense "to identify
military installations and other facilities of the Department of Defense ... that may be
used, in whole or in part, by [participants in corps programs.]" (S 205(c).)
There is significant congressional support for financing the work of urban youth
corps on public works and
8 It should be noted that, under the Act, the specified federal agencies "are each
authorized to pay not more that 75 percent of the costs of any appropriate service proj ect
carried out pursuant to [Section 106 of the Act] by a qualified urban youth corps. The
remaining 25 percent of the costs of such a project may be provided from the nonfederal
sources in the form of funds, services, facilities, materials, equipment, or any
combination of the foregoing."
environmental restoration projects with federal funds appropriated for those purposes.
(See, for example, the attached letter date March 31, 1993 from Congressman Norman
Mineta (Chairman of the House Committee on Public Works and Transportation) and
Congresswoman Nancy Pelosi (member of the House Appropriations Committee) to
Secretary of Transportation Federico Pena, which is attached to this paper.)
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."
Possible Concerns of Organized Labor
Opposition to the involvement of urban youth corps in public works projects was
never expressed during congressional debates on the National Service bill, nor has any
such opposition yet appeared. If it does develop, it is most likely to come from elements
within organized labor fearing job displacement. Such a concern would be unjustified.
The National Service Act strengthens and reaffirms the strong nondisplacement
provisions of the National and Community Service Act of 1990 (42 U.S.C. SS 12501 et
seq.) (which was initiated by President Bush to promote volunteerism). The applicable
statute now provides that "An employer shall not displace an employee or position,
including partial displacement such as reduction in hours, wages, or employment
benefits, as a result of the use by such employer of a participant in a program receiving
assistance under [the law relating to national service]." (42 U.S.C. S 12637(b) (1).)
Similarly, "A participant in a program receiving assistance [under the national service
law] shall not perform any services or duties or engage in activities that would be
otherwise performed by an employee as part of the assigned duties of such employee."
(Id., S 12637(b) (3).)
Federal law also provides that a participant in any program receiving assistance
under the national service program "shall not perform any services, duties, or engage in
activities, that - (i) will supplant the hiring of employed workers; or (ii) are services,
duties, or activities with respect to which an individual has recall rights pursuant to a
collective bargaining agreement or applicable personnel procedure." (Id., S12637 (b) (3).
In short, labor cannot genuinely claim there are inadequate safeguards against
displacement of other workers by urban youth corps.
Conclusion
The state and local conservation corps programs that exist throughout California,
which have been the chief model for such programs elsewhere, serve two great heretofore
unmet needs: (1) the need to engage large numbers of urban youth in forms of public
service that will develop in them a sense of civic consciousness, personal responsibility
and self-worth; and (2) the need to restore disintegrating urban environments.
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.'
The success of these programs lies in their roots in the communities they serve and
the fact that most are or can become self-supporting. These programs cannot continue to
grow to meet the needs they serve, however, without developing new sources of revenue.
Simply stated, as Congress has recognized, they need more remunerative public service
work.
The provision of such work, vast amounts of which has already been funded, should
be an important goal of public officials and other policymakers.
Application of the Davis Bacon Act
The extent to which the Davis Bacon Act (40 U.S.C. SS 276a -276e) may apply to
the participation of youth corps programs in public works projects is unclear. That Act
provides that the minimum wages that may be paid in connection with federal public
works projects shall not be less than "the wages that will be determined by the Secretary
of Labor to be prevailing for the corresponding classes of laborers and mechanics
employed on projects of a character similar to the contact work on the city, town, village
or other civil subdivision of the State in which the work is to be performed.. 00" (S276a.)
The purpose of the Davis Bacon Act -like Labor Code section 1771, the state law
counterpart 9 - is to protect local wage standards by preventing contractors on
government projects from basing their bids on wages lower that those prevailing in the
area, and to give local labor organizations a fair opportunity to participate in government
subsidize b.uilding programs.
Under current law the Davis Bacon Act applies to federal public works contracts
over $2,000. However, pending
9 Labor Code section 1771 provides in material part that "Except for public works
projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate
of per diem wages for work of a similar character in the locality in which the public work
is to be performed. .. shall be paid to all workers employed on public works."
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Legislation supported by organized labor would raise that threshold to $100,000.
Community conservation corps, which pay corpsmember at or above the federal
minimum wage (Cal. Pub. Resources Code, S 14507, subd. (c) could not survive if
required to pay the prevailing wage, as the revenue they receive in excess of what needed
to pay corpsmember is essential to defray their administrative expenses and the cost of
maintaining their essential educational components.
The Davis Bacon Act does not, however, necessarily apply to urban youth corps
participating in public works projects. First, the Davis Bacon Act only applies to
"contracts". 10 The National Service Act provides that specified federal agencies may not
only enter into contracts with qualified urban youth corps, but may alternatively enter
into "cooperative agreements" with such organizations when appropriate. (S 1 06 (d) (2).)
Unlike a contract - the chief purpose of which "is to acquire (by purchase, lease
or barter) property or services for the direct benefit or use of the United States
Government." (31 US.C. S 6303(1) - a "cooperative agreement" may be used when "the
principal purpose of the relationship is to transfer a thing of value to the State, local
government, or other recipient to carry out a public purpose of support or
10 The state law counterpart to the Davis Bacon Act is also "applicable only to work
performed under contract ...." (Cal. Labor Code, S 1771.)
Stimulation authorized by a law of the United States instead of acquiring (by purchase,
lease or barter) property or services for the direct benefit or use of the United States
Government." (31 U.S.c. S 6305.)
Work performed under cooperative agreements is exempt from the Davis Bacon
Act because the purpose of such arrangements is not so much to obtain a government
benefit as to confer a benefit on the other party to the arrangement beyond compensation
for services provided.
Because the National Service Act was in part designed to confer such a benefit on
urban youth corps programs, it justifies the use of cooperative agreements to exempt such
programs from the prevailing wage requirement.
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The provision of the Act pertaining to urban youth corps commences with the
finding that "[t] he rehabilitation, reclamation, and beautification of urban public housing,
recreational sites, youth and senior centers, and public roads and public works facilities
through the efforts of young in the United States in Urban Youth Corps can benefit these
youths .... by - (A) providing them with education and work opportunities; (B) furthering
their understanding and appreciation of the challenges faced by individuals residing in
urban communities; and (C) providing them with a means to pay for higher education or
to repay indebtedness they have incurred to obtain higher education... "(S106 (a).)
The Act then states that the purpose of the section relating to urban youth corps is,
among other things, "to expose young people in the United States to public service while
furthering their understanding and appreciation of their community; . . . . to expand
educational opportunity for individuals who participate. . . by providing them with an
increased ability to pursue postsecondary education or job training; and [] to stimulate
interest among young people in the United States in lifelong service to their communities
and the United States." (S 106(b).)
Because these legislative goals would be frustrated by application of prevailing
wage requirements to urban youth corps, Congress authorized the use of cooperative
agreements.
If for any reason a cooperative agreement cannot be used in connection with a
particular public works projects and a work contract must be utilized, a youth or
conservation corps program can be administratively exempted from the prevailing wage
requirement by the Department of Labor where the employment in question may be
certified as job-training. As earlier noted, "job-training" is one of the stated purpose of
the portion ofthe National Service Act authorizing the participation of urban youth corps
in public works projects. (See, e.g., S 106 (b) (4).)11 Such certification would
presumably be easier to obtain by a youth corps program if it were authorized by the
California Department of Industrial Relations to sponsor apprenticeship programs forecorpsmember
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11 This portion ofthe Act states that 'It is the purpose ofthis section. . . to expand
educational opportunity for individuals who participate in [urban youth corps] by
providing them with an increased ability to pursue postsecondary education or
iob training
engaged in a public work contract. 12 The prevailing wage for apprentice, which is lower
than that for ordinary employees, is within the ability to pay of many youth corps
programs.
12 See California Labor Code sections 3075 et seq. Section 3075.1 states in part that "It
is the public policy of this state to encourage the utilization of apprenticeship as a form of
on-the-job training, when such training is cost effective in developing skills needed to
perform public services. State and local public agencies shall make a diligent effort to
establish apprenticeship programs for apprenticeship occupations in their respective work
forces."
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