Chapter 3.36
TRIBAL PREVAILING WAGE ORDINANCE
Sections:
3.36.040 Establishment of Tribal prevailing wage.
3.36.050 Payment of prevailing wages required.
3.36.010 Declaration of need.
It is hereby declared:
(a) That certain federal laws require the payment of “prevailing wages” when expending funds appropriated pursuant to such laws;
(b) That under existing federal law applicable to the expenditure of Indian Housing Block Grant (“IHBG”) funds, 25 U.S.C. 4114(b)(1), there is a requirement that any contract or agreement for assistance, sale, or lease must contain a provision requiring that not less than the wages prevailing in the locality shall be paid to all architects, technical engineers, draftsmen, and technicians employed in the development, and all maintenance laborers and mechanics employed in the operation of the affordable housing project involved; and must also contain a provision that not less than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C. 276a et seq.), shall be paid to all laborers and mechanics employed in the development of the affordable housing involved;
(c) That this same law was amended to state that this requirement shall not apply to any contract or agreement for assistance, sale, or lease pursuant to this chapter, if such contract or agreement is otherwise covered by one or more laws or regulations adopted by an Indian tribe that requires the payment of not less than prevailing wages, as determined by the Indian tribe (25 U.S.C. 4114(b)(1));
(d) That authorizing the establishment of such prevailing wages by the Tribe to apply where required is consistent with the principles of Tribal self-determination, self-governance, and sovereignty;
(e) That the Tribe hereby finds that entities and persons who do business with the Tribe or any of its departments, entities, and instrumentalities (including but not limited to the Housing Authority) have entered into a consensual relationship with the Tribe, and that the employment activities of such entities and persons have a significant impact on the economic security, political integrity, and health and welfare of the Tribe;
(f) That the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination. [Res. 120707A Art. I (07/12/07)]
3.36.020 Purposes.
(a) The Puyallup Tribe desires to establish a Tribal prevailing wage, equal to or greater than Davis-Bacon, for laborers, mechanics, architects, technical engineers, draftsmen, technicians, and other positions which may be designated by the federal government or the Tribe on the Puyallup Reservation and in other areas where the Tribe’s Housing Authority undertakes construction projects or administration of affordable housing, in order to promote the general welfare and economic development of the Tribe in exercise of the Tribe’s inherent authority and Congressionally delegated authority.
(b) Notwithstanding any other provision of Tribal law to the contrary, the prevailing wage established by the Tribe under this chapter is intended to supersede all federal wage determinations otherwise applicable to the Tribe’s Housing Authority to the greatest extent allowed under federal law and to the fullest legal authority under Tribal law. [Res. 120707A Art. II (07/12/07)]
3.36.030 Definitions.
The following terms, wherever used or referred to in this chapter, shall have the following respective meanings, unless a different meaning clearly appears from the context:
(a) “Agreement” means any contract or agreement for assistance, sale or lease funded under any federal law applicable to Indian tribes and specifically including but not limited to NAHASDA, and such other Tribal agreements as may be determined by Tribal Council to be appropriate.
(b) “Council” means the Puyallup Tribal Council.
(c) “Federal government” includes the United States of America and its Department of Housing and Urban Development, as well as any other agency or instrumentality, corporate or otherwise, of the United States of America.
(d) “Federal law” means any statute enacted by the United States Congress or any federal regulation duly enacted by a federal agency containing requirements for establishment and payment of a determined prevailing wage, including but not limited to wage determinations of the Secretary of Labor or the Secretary of Housing and Urban Development, and further including but not limited to wage determinations set under the Davis-Bacon Act (40 U.S.C. 276a et seq.) or under NAHASDA, applicable to Indian tribes.
(e) “Housing Authority” shall mean the Puyallup Tribe Housing Authority, the Puyallup Tribe’s designated housing entity.
(f) “Housing project” or “project” means any work or undertaking to provide or assist in providing (by any suitable method, including but not limited to: rental, sale of individual units in single- or multifamily structures under conventional condominium or cooperative sales contracts or lease-purchase agreements; loans; or subsidizing of rentals or charges) decent, safe and sanitary dwellings, apartments, or other living accommodations for eligible persons. Such work or undertaking may include buildings, land, leaseholds, equipment, facilities, and other real or personal property for necessary, convenient, or desirable appurtenances, for streets, sewers, water services, utilities, parks, site preparation or landscaping, and for administrative, community, health, recreational, welfare, or other purposes. The term “housing project” or “project” also may be applied to the planning of the buildings and improvements, the acquisition of property or any interest therein, the demolition of existing structures, the construction, reconstruction, rehabilitation, alteration or repair of the improvements or other property and all other work in connection therewith, and the term shall include all other real and personal property and all tangible or intangible assets held or used in connection with the housing project.
(g) “NAHASDA” means the Native American Housing Assistance and Self-Determination Act of 1996, as amended, Pub. L. 104-330, 25 U.S.C. 4101 et seq.
(h) “Prevailing wage” means the wage as determined by the Tribe pursuant to this chapter as the wage prevailing on the Tribe’s Reservation and within the Tribe’s and Housing Authority’s area of operations for each category of employee including, but not limited to, architect, technical engineer, draftsman, technician, laborer, and mechanic.
(i) “Tribe” means the Puyallup Tribe. [Res. 120707A Art. III (07/12/07)]
3.36.040 Establishment of Tribal prevailing wage.
(a) The Tribe shall establish a Tribal prevailing wage pursuant to the process set out in this section. Notwithstanding any other provision of Tribal law to the contrary, the prevailing wage established pursuant to this chapter shall apply only to construction activities funded or otherwise managed by the Tribe’s Housing Authority.
(b) Tribe to Conduct Wage Survey. The Tribe shall periodically arrange for a wage survey to be conducted in order to determine and establish the Tribal prevailing wage.
(1) The Tribe shall obtain wage rates from available sources of each class of profession or trade included in the survey and shall establish the prevailing wage at not less than the average wage paid to each class of profession or trade included in the survey. The survey shall also include the classification for trainee in all trades.
(2) The Tribe shall retain for not less than three years the names and addresses of all sources contacted and the wage rates reported by each source.
(3) Wage rates shall include salary but not the value of benefits paid to or on behalf of the employees.
(4) The results of the survey shall be contained in a proposed schedule of prevailing wages which shall list each covered class of profession, trade and trainees and the hourly rate for each and the effective dates of the schedule.
(c) The Council shall review the results of the survey, and, if the survey results and methodology are acceptable, the Council shall approve such results and shall approve the schedule of prevailing wages. This approval shall establish the Tribal prevailing wage.
(d) Delegation of Authority. The Tribe may delegate its authority to conduct surveys and/or to establish the Tribal Prevailing Wage under this chapter to the Tribe’s Human Resource, Training and Education Division, but Council shall approve the schedule of prevailing wages at least annually by motion or resolution. [Res. 120707A Art. IV (07/12/07)]
3.36.050 Payment of prevailing wages required.
(a) Payment of Prevailing Wages and Access to Records. Each employer, including the Tribe and any of its departments, entities, and instrumentalities (including but not limited to the Housing Authority), when performing construction services funded through or otherwise managed by the Housing Authority, shall pay the prevailing wage established pursuant to this chapter. Each employer shall maintain certified payroll records reporting the hourly rates paid to each employee. The certified payroll records shall be available for inspection and copying during regular office hours by the employee. Any employee shall be entitled to inspect and copy his or her certified payroll record.
(b) Volunteers. The requirement to pay the prevailing wage under this chapter shall not apply to any individual who receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered. No individual currently employed under an agreement for the same or similar services on a project shall be considered a volunteer on the same project.
(c) Schedule to Be Provided. The Housing Authority shall provide every employer at the time bids or proposals are solicited with a copy of the currently effective schedule of prevailing wages.
(d) Posting of Wage Schedules. At all times while performing under an agreement subject to this chapter, each employer shall post at the job site and in its principal office a copy of the schedule of prevailing wages furnished by the Tribe.
(e) Payment of Prevailing Wage Required in Agreements. Any agreement pursuant to federal law with the Housing Authority for construction, alteration, repair or maintenance of buildings or works or for provision of labor to be performed within the area of operation of the Tribe or the Housing Authority shall contain a provision requiring not less than the prevailing wage established pursuant to this chapter shall be paid by the contractor. Agreements not pursuant to federal law are exempt from this requirement unless the Council in its discretion requires payment of determined prevailing wages.
(f) Authority to Withhold Payments. In addition to the remedies available in PTC 3.36.060, the Housing Authority has the authority to withhold payment to contractors/employers if the Housing Authority in good faith believes that a contractor/employer is not complying with any provision of this chapter. [Res. 120707A Art. V (07/12/07)]
3.36.060 Remedies.
(a) Tribal Court Action. The Tribe, its departments, entities, and instrumentalities (including but not limited to the Housing Authority) and any adversely affected employee may bring an action in the Puyallup Tribal Court against any employer for failure to comply with the provisions of this chapter.
(b) Upon a finding by the Tribal Court based upon credible evidence and by a preponderance of the evidence that a violation of this chapter has occurred, the Court may order any of the following remedies:
(1) If the employee has been underpaid, the employer may be ordered to pay the difference in the wage paid to the employee and the prevailing wage.
(2) The Court may also order punitive damages not to exceed three times the amount of subsection (b)(1) of this section.
(3) The Court may also award reasonable attorney fees to the prevailing party.
(4) The Court may also issue an order barring the contractor/employer and/or its principal employees from performing work or services for the Tribe, its departments, entities, and instrumentalities (including but not limited to the Housing Authority) not to exceed five years.
(5) The Court may also order any other remedy that is narrowly tailored to remedy the violation.
(c) Statute of Limitations. No action under this chapter shall be filed or allowed more than two years after the date such wages became due and payable under the agreement. [Res. 120707A Art. VI (07/12/07)]
3.36.070 Sovereign immunity.
Nothing in this chapter provides or may be interpreted to provide a waiver of the sovereign immunity from suit of the Tribe, its departments, entities, and instrumentalities (including but not limited to the Housing Authority), or any of its governmental officers’ and/or agents’ and/or employees’ sovereign immunity from suit. Nothing in this chapter may be construed or interpreted to grant jurisdiction to any court over the Tribe, its departments, entities, and instrumentalities (including but not limited to the Housing Authority), or any of its governmental officers and/or agents and/or employees. [Res. 120707A Art. VII (07/12/07)]