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2016-08 SilverRock Park Venue (Urban Habitat) PLA MOAExecution Version MEMORANDUM OF AGREEMENT RE SILVER ROCK RESORT PROJECT This Memorandum of Agreement ("MOA") is entered into by and between SilverRock Development Company, LLC ("Owner -Developer"), and the Southern California District Council of Laborers and its affiliated Laborers Union Local 1184 (collectively the "Laborers Union"). WHEREAS, the Owner -Developer entered into a Development Agreement dated November 19, 2014 and a Purchase, Sale and Development Agreement with the City of La Quinta ("City") dated November 19, 2414, and subsequently amended, to develop the SilverRock Resort located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta in Riverside County ("Project") WHEREAS, the Project includes, but is not limited to, the development and construction of: Master Site Infrastructure Impr©vements. a luxury resort hotel and spa and associated branded luxury residential units, a lifestyle hotel and associated lifestyle branded residential units, a conference and shared service facility, a permanent clubhouse for the SilverRock Resort's Arnold Palmer Classic Course, a temporary club house, a mixed use village, all American and Water Well Sites, a resort residential village and associated amenities, a public park, renovation of the Ahmanson Ranch House, and reconfiguration of the Golf Course, WHEREAS, the Parties agree that a large labor pool is needed to construct the improvements for the Project, and that the Laborers Union can provide a local, skilled workforce to perform certain work in a highly quality and cast competitive manner; and WHEREAS, the Parties agree that the development of the Project would lead to increased jobs, economic growth and opportunities, and tourism in the area. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The Laborers Union shall support the Owner -Developer and the City in the resolution of any environmental concerns that may be raised during the entitlement process, and the Laborers Union will provide its full and active support to the Owner -Developer and the City in seeking fmal approvals for the Project. Execution Version 2. The Laborers Union acknowledges that the parties have resolved all issues regarding the extent to which the Project is governed by State prevailing wage laws, and that the Laborers Union shall request the Center for Contract Compliance ("CCC") to withdraw its request to the Department of Industrial Relations ("DIR") for a public works coverage determination for the Project. The Parties acknowledge and agree that withdrawal of this request by the CCC, and the approval of such request by the DK is a material condition of this MOA, and that the MOA shall not be effective unless and until this has been accomplished and if not this MOA shall be voidable by Owner -Developer. The Laborers Union also agrees not to make any further requests to seek a public works coverage determination for the Project from the M, to not file any such a request for a determination from the DIR, and to use its best efforts to ensure that the CCC and any affiliated union of the Building Trades Council do not seek or file any such request for a determination from the DIR. 3. The Laborers Union agrees not to file or support any action against the Owner - Developer, the City, any general contractors or subcontractors of any tier which (i) alleges that any work performed under the Private Works Project Labor Agreement described herein below is a public work covered by State prevailing wage laws and/or (ii) seeks the recovery of prevailing wages for any work performed under the Private Works Project Labor Agreement. 4. Parties hereby establish a Project specific partnership that will ensure that the Laborers Union will provide the requisite number of Laborers Union represented workers to perform work on certain portions of the Project, more specifically described as "Covered Work" in Attachment A hereto, to allow the Project to be completed on schedule in a high quality and cost effective manner. 5. a. Covered Work on the Project, as more specifically described in Attachment A, shall be performed by employees represented by the Laborers Union under a Public Works Project Labor Agreemmnt ("Public Works PLA") for the portion of the Project subject to the State prevailing wage laws and described as Covered Public Works in Attachment A, Section 1; and shall be performed by employees represented by the Laborers Union under a Private Works Project Labor Agreement ("Private Works PLA") for the portion of the Project described as Covered Private Works in Attachment A, Section 2. The parties agree that certain work on the Project, as described in Attachment A, Section 3, shall not be covered by any Project Labor Agreement ("Nan -Covered Work"). b. Notwithstanding the provisions of subsection a. above; regarding Non -Covered Work, the Owner -Developer agrees to advise all general contractors and subcontractors of any tier that will perform or subcontract Non -Covered Work, that Execution Version (i) Owner -Developer and Laborers Union have a mutually beneficial partnership on the Project, (ii) that the Laborers Union has collective bargaining agreements with contractors that perform work of the nature of the Non -Covered Work, (iii) that all general contractors and other contractors that will subcontract Non -Covered Work are encouraged to contact the Laborers Union for the names of Laborers Union signatory contractors that can perform Non -Covered Work, and (iv) that Laborers Union signatory contractors should be allowed to bid on Non -Covered Work on the Project, and if feasible, such Laborers Union signatory contractors shall perform Non - Covered Work. b. To fulfill the contractual obligations contained in paragraph 4 and 5.a. above, the Owner -Developer shall do the following: a. Covered Public Works. The Owner -Developer shall obtain the City's agreement to require that the Project's general contractor(s), and any other contractor which the City, Owner -Developer, and/or general contractors) direct or authorize to perform Covered Public Works on the Project, enter into and be bound to a PLA substantially in the form attached hereto as Attachment B for the portion of the Project subject to prevailing wage laws and described as Covered Public Works in Attachment A, Section 1. In the alternative, the City may enter into the PLA with the Laborers Union for Covered Public Works that requires all contractors performing Covered Public Works to be bound to the PLA and MLA for the duration of the project_ If the City does not direct the general contractor(s) to enter into the PLA for Covered Public Works as a requirement of performing Covered Public Works, and the City does not execute a PLA for Covered Public Works as described above, the Owner -Developer shall be in breach of this Agreement. b. Covered Private Works. The Owner -Developer shall require that the Project's general contractor(s), and any other contractor which the Owner -Developer, and/or general contractor(s) direct or authorize to perform Covered Public Works on the Project, enter into and be bound to a PLA substantially in the form attached hereto as Attachment C for the portion of the Project described as Covered Private Works in Attachment A, Section 2_ c. The PLAs described in subsections a. and b. above shall be executed at least thirty (30) days prior to any construction on the Project subject to the applicable PLA. The Project's general contractor(s) shall serve as "Primary Employer(s)" as defined in the applicable PLA, and all other contractors Execution Version performing Covered Work shall be Employers as defined in the applicable PLA. 7. The Owner -Developer shall not allow any Covered Work to proceed prior to the execution of the PLA covering Covered Work on the Project. If the City permits Covered Public Works to proceed prior to the execution of the PLA for Covered Public Works, the Owner -Developer shall be deemed in breach of this Agreement. 8. The Owner -Developer agrees that the PLA shall require, and it is the express intent of the parties to this MOA, that all Covered Work as defined in Attachment A and the applicable PLA be performed by a contractor or subcontractor that is bound to the applicable PLA and is either: a) signatory to the Southern California Master Labor Agreement between Southern California General Contractors and the Southern California District Council of Laborers ("Master Agreement") for the duration of the Master Agreement; or b) bound to the terms of the Master Agreement for duration of the Project only. 9. This MOA shall survive any full or partial termination of the Owner -Developer's involvement in the Project as a result of the transfer of all or any portion of the Project or any interest in the Project by the Owner -Developer. 10. In the event that the Owner -Developer sells, transfers, leases, or assigns all or any part of its right, title, or interest in the Project to another party ("Successor Party"), the Successor Party shall be bound to the terms of this MOA. The Owner -Developer shall unsure that in any contract involving the sale, transfer, lease or assignment of its right, title, or interest in the Project, the requirement that the Successor Party be bound to this MOA shall be made a contractual requirement of the Successor Party. Owner -Developer shall give the Union written notice of any impending sale, transfer., lease, or assignment of the Project within twenty-one (21) business days of the execution of such contract between the Owner -Developer and Successor Party to ensure compliance with this paragraph. 1 I. If the Owner -Developer fails to comply with Paragraph 5.a., 6, 7 or 8 above, or any other provision of this MOA that results in Covered Work not being performed by contractors signatory to the PLA and Master Agreement as required by this MOA, the parties agree that such violation shall cause harm and result in damages to the Laborers Union as the representative of its members who will lose wages by not performing Covered Work on the Project, and to the Pension Fund and Health. & Welfare Fund established in the Master Agreement as a result of not receiving contributions that would be due for Covered Work on the Project. The parties agree that a reasonable amount of damages for the Owner -Developer's failure to comply Execution Version with Paragraph 5.a, 6, 7 or 8 above, or any other provision of this MOA that results in Covered Work not being performed by contractors signatory to the PLA and Master Agreement as required by this MOA, are damages that compensate the Laborers Union for the loss of work opportunities for its members, and the Pension and Health & Welfare Funds for the loss of contributions to these Funds. Because such damages would be unreasonably difficult, costly, inconvenient or impracticable to calculate, the Owner -Developer agrees to pay the Liquidated Damages that bear a reasonable relationship to the actual harm suffered by the Union and its members, and the Trust Funds, as provided in paragraph 12. 12, If Liquidated Damages are owed as described in Paragraph 9, Owner -Developer shall pay $30.00 for each hour of Covered Work performed on the Project within the scope of this Attachment A, by employees of contractors or subcontractors v. ho are not signatory to the PLA and Master Agreement as required by this MOA. The Liquidated Damages shall be paid as follows: Ten Dollars ($10.00) per hour to the Laborers Union's Pension Trust described in the Master Agreement, Ten Dollars ($10.00) per hour to the Laborers Union's Health & Welfare Trust fund described in the Master Agreement, and Ten Dollars ($10.00) to the Laborers Union for the benefit of its membership who lost work opportunities. The Parties agree that the Laborers Union shall enforce, collect and receive Liquidated Damages pursuant to this MOA on behalf of its Trust Funds. 13. Any and all disputes that may arise between the Parties regarding the interpretation or alleged violation of the terms of this MOA matter that cannot be resolved by the Parties within ten (10) business days from the date the dispute first arose or was raised by either Party shall be submitted to final and binding arbitration before an arbitrator selected by the Parties from a list of proposed labor arbitrators, who must be a member of the National Academy of Arbitrators, provided by the American Arbitration Association in accordance with its labor relations ntles (including expedited labor arbitration rules). 14. It is understood that the final plans for the Project are subject to modifications and approval by public agencies possessing lawful approval and authority over the Project. The Laborers Union agrees that it shall support and encourage the development and construction of the Project before state and local governmental agencies. 15. This MOA shall be enforceable in any court of competent jurisdiction. Execution Version 16, This MOA may be signed in counterparts, such that signatures appear on separate signature pages. A copy or original of this document with all signature pages appended together shall be deemed a fully executed Agreement. Copies, pdf, or facsimiles of signatures are the equivalent of original signatures. SILVERROCK DEVELOPMENT SOUTHERN CALIFORNIA DISTRICT COMPANY, LLC COUNCIL OF LABORERS � By By Armando Esparza, Business Manager Robert Green � � 8113ByDated: Jon P. Preciado, Secretary M Sergio Rascon, President LABORERS LOCAL UNION NO. 1184 VA John L. Smith, Business Manager By: Michael S. Dea, Assistant Business Manager Dated: Execution Version ATTACKVIE TA TON*1 - N LMOFAGRFFMLVT Section L Covered Public Works Subiect to Public Works Pro•eet Labor A reement s Definition — Covered Public Works shall mean any work of improvements that will ultimately be owned by the City of La Quinta or another public agency or utility, or otherwise subject to the State prevailing wage law. Governing Document — Public Works PLA (Attachment B) with the Genera! Contractor performing Covered Public Works, Appileable Wage Rate — Laborers Union Master Agreement Wage hate and Fringe Benefits in effect at the time the work is performed. Scope of Public Covered Works a) Site prep work, including work to grade, clean or prepare construction site b) Installation of all roads and pathways c) Dust control, including water trucks d) Fencing e) Landscaping and replanting fj Demolition g) Asphalt paving h) Site Concrete Curb and Gutter/Site Concrete Paving, including foundations i) Pipeline (Storm Drain, Water Lines, Sewer) j) Underground Utilities, including Dry Utilities k) B1ocklMasonry and veneer stone 1) Pavement Marking and Slurry Seal in) Fireproofing n) Concrete finishing and placement, by any method or means o) Signs p) Solar technologies r) Installation and placement of electrical conduit and duct banks s) Traffic Control t) Trenching; horizontal directional drilling; plow trenching; and digging and construction of tunnels on the Project u) Backfilling of Trenches v) Construction or ornamentation done with plaster w) Construction and landscaping of Parks x) Installation of pavers and/or paving stones Execution Version ATTACHMENT B TO MEMORANDUM OF AGREEMENT LABORERS PUBLIC WORKS PROJECT LABOR AGREEMENT I ii SILVERROCK RESORT PROJECT RIVERSIDE COUNTY, CALIFORNIA Execution Version 1. INITIAL PROVISIONS 1.1 This Project Labor Agreement ("Agreement") is entered into by ("Primary Employer") and the Southern Califoriva District Council of Laborers and its affiliated Local 1184 (the "Union"). 1.2.1.The SilverRock Resort Project ("Project") is a development located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta in Riverside County_ The Project includes, but is not limited to, Master Site Infrastructure Tmprovements, the development and construction of a luxury resort hotel and spa and associated branded luxury residential units, a lifestyle hotel and associated Iifestyle branded residential units, a conference and shared service facility, a permanent clubhouse for the SilverRock Resort's Arnold Palmer CIassic Course, a temporary club house, a mixed use village, all American and Water Well Sites, a resort residential village and associated amenities, a public parr, renovation of the Ahmanson Ranch House, reconfiguration of the Golf Course. The Project is more fully described in the Purchase, Sale, and Development Agreement ("PSDA") between. the City of La Quinta and SilverRock Development Company, LLC (the "Owner/Developer," which includes successors in interest approved pursuant to the PSDA), the SilverRock Specific Plan, also known as Specific Plan No. SP 2006-080, the Mitigated Negative Declaration and the Addenda to the Adopted Mitigated Negative Declaration. It is understood and agreed by and between the Primary Employer and the Union ("Parties") that the final plans for the Project may be subject to modifications and approval by those public agencies possessing lawful approval authority over the Project, and may be modified by the Owner/Developer (including, but not limited to, modifications to reduce overall costs), and that this Agreement applies to the Project as it is finally approved and modified by such entities, agencies and/or the Owner/Developer. 1.2.2. This Agreement covers only work of improvements on the Project that will ultimately be owned by the City of La Quinta or another public agency or utility, or work that is otherwise subject to the State prevailing wage law. 1.3 It is the intent of the Parties to establish a Project -specific partnership that will provide a skilled workforce represented by the Union and will allow the Employer (as defined in Section 1.6) to perform the Covered Work (as defined in Article 2) for the Project, including determining the number of employees necessary, work schedules, and working conditions (among other things) to allow the Project to be completed in a high quality manner, on schedule, and in a cost competitive Execution Version manner. As it is essential for the Owner/Developer and/or Employer to .meet certain dates for the construction and development of the Project, the Union agrees that time is of essence as it applies to the performance of this Project. 1.4 A large labor pool represented by the Union will be required to perform the work involved in the Project. Employer (as defined in Section 1.6) wishes and it is the purpose of this Agreement to ensure that a sufficient supply of skilled craft workers are available at the Project, that all construction work and related work performed by the members of the Union on this Project shall proceed continuously, without interruption, in a safe and efficient inanner, and economically with due consideration for the protection of labor standards, wages and working conditions in compliance with applicable law. In furtherance of these purposes and to secure optimum productivity, harmonious relations between the Parties and the orderly performance of the work, the Parties to this Agreement agree to establish adequate and fair wage levels and working conditions in compliance with applicable law and to ensure there will be no work stoppages during the construction of the Project. 1.5 Primary Employer is a contractor primarily engaged in the construction industry. Primary Employer will perform construction work directly on the Project and will utilize subcontractors to perform work as well. 1.6 As provided below all contractors, subcontractors, or other persons or entities (other than the City of La Quinta) assigning, awarding, or subcontracting Covered Work (as defined in Article 2) will be subject to this Agreement by executing Attachment A, the Agreement To Be Bound (all of whom, including the Primary Employer, are individually and collectively referred to as "Employer" or "Employers"). The City of La Quinta, through the City Manager, will require any contract awarded to an Employer to execute the Agreement To Be Bound to memorialize that Employers, as independent contractors of the City of La Quinta, must comply with this Agreement. This Agreement shall not bind or apply to any parents, affiliates, subsidiaries of any Employer. Each separate Employer shall be liable for its own breach of this Agreement. 1.7 The Union is a labor organization whose members are construction industry employees who generally work in close proximity to one another at construction job sites and whose jobs are closely related and coordinated. The Union is a party to a multi -employer collective bargaining agreement known as the Southern California Master Labor Agreement between Southern California General Contractors and the Southern California District Council of Laborers ("Master 2 Execution Version Agreement") that covers the geographic area of the Project. Where the term Master Agreement is used, it means the existing Master Agreement in effect as to the Union at the time the Covered Work is performed. 1.8 In the interest of the future of the construction industry in the local area, of which the Union is a vital part, and to maintain the most efficient and competitive posture possible, the Union pledges to work and cooperate with the management of the Project to produce the most efficient utilization of labor and equipment in accordance with this Agreement. In addition, the Union shall not afford preferential status to other projects in the jurisdiction to the extent such preference will inhibit the availability of qualified workers for the Project. 1.9 The Parties recognize the importance of economic growth in the area and the creation of job opportunities by the development of this particular Project. By entering into this Agreement, the Parties recognize that the terms and conditions covered by this Agreement are therefore unique and limited to this Project. Accordingly, the Parties have in good faith arrived at the special conditions contained in this Agreement, and the parties agree to jointly work together to support the Project and make it successful. 2. SCOPE OF AGREEMENT 2.1 Subject to Section 2.2, this Agreement covers only work on the Project that will ultimately be owned by the City of La Quinta, or work that is otherwise subject to the State prevailing wage law, covered by the Master Agreement ("Covered Work"), including but not limited to: a) Site prep work, including work to grade, clean or prepare construction site b) installation of all roads and pathways c) Dust control, including water trucks d) Fencing e) Landscaping and replanting f) Demolition g) Asphalt paving h) Site Concrete Curb and Gutter/Site Concrete Paving, including foundations i) Pipeline (Storm Drain, Water Lines, Sewer) j) Underground Utilities, including Dry Utilities k) Block/Masonry and veneer stone 3 Execution Version 1) Pavement Marking and Slurry Seal m) Fireproofing n) Concrete finishing and placement, by any method or means o) Signs p) Solar technologies r) Installation and placement of electrical conduit and duct banks s) Traffic Control t) Trenching; horizontal directional drilling; plow trenching; and digging and construction of tunnels on the Project u) Backfilhng of Trenches v) Construction or ornamentation done with plaster w) Construction and landscaping of Parks x) Installation of pavers and/or paving stones y) installation of street lights and traffic signals z) General Conditions (Clean Up) Covered Work shall be construed in the broadest terms possible. 2.1.1 Concrete work described in the Master Agreement and part of Covered Work shall include all cement finishing work on all concrete and related products on the Project, including but not limited to setting all concrete fortes and perimeters forms including catch basin structures and drain inlets, curb forms and planks, setting of lines, stakes and grades, setting screed including screed pins; Garb and Gutter Machine Operator; Clary and similar type of Screed Operator (Cement); Grinding Machine Operator (all types); Jackson Vibratory or similar type; Texas Screed and similar type Screed Operator; Scoring Machine Operator; Magnesite, magnesite-terazzo and mastic composition; epoxy urethanes and exotic coatings; Dex-O-Tex Floating and Troweling Machine Operator. 2.1.2 All work done in temporary yards or facilities adjacent to or near the Project which are a part of and are a requirement for the Project. The Owner/Developer, manufacturer's representatives, vendor's representatives, and facility operating personnel may supervise and direct Covered Work, and the Union agrees that craft work is typically performed as part of a joint effort 11 Execution Version with these representatives and personnel. Covered Work shall not be performed by, manufacturer's representatives, vendor's representatives, and facility operating personnel. 2.2 Covered Work shall not include any work performed on or near the Project site by federal, state, county, city, or other governmental bodies and/or agencies or their contractors or work performed by utilities or their designated contractors or work performed by the Owner/Developer, manufacturer's representatives, vendor representatives or plant operating or their contractor personnel as discussed in Section 2.1. Any pre -assembled or manufactured items produced in a manufacturing facility for the assembly or supply of products is also excluded from the scope of this Agreement and shall not be considered subcontracting under Article 3 below. 2.3 This Agreement applies to all employees performing Covered Work. It does not apply to work which is not Covered Work, to supervisors not covered by a collective bargaining agreement, to technical or non -manual employees including but not limited to executives, office and clerical personnel, drafters, engineers, timekeepers, messengers, or to any other employees above the classification of general foreman who perform administrative/clerical functions. 3. SUBCONTRACTING 3.1 Primary Employer and each other Employers agree that they will contract for the assignment, awarding, or subcontracting of Covered Work, or authorize another party to assign, award or subcontract Covered Work, only to a person, firm, corporation, or other entity that, at the time the contract is executed, has become a party to this Agreement by executing Attachment A, the Agreement To Be Bound. 3.2 Primary Employer and each other Employer agree that they will subcontract Covered Work only to a person, firm, corporation, or other entity v ho is or becomes a party to this Agreement and who is or becomes signatory to the Master Agreement of the Union for the Project (subject to 3.3). Any Employer performing Covered Work on the Project shall, as a condition to working on the Project, become signatory to and perform all Covered Work under the terms of this Agreement and the Master Agreement.. Before being authorized to perform any Covered Work, Employers shall become a party to this Agreement by signing Attachinent A, the Agreement To Be Bound. Each Employer agrees that by executing the Agreement To Be Bound, it agrees to assign all Covered Work to the Union. Every Employer shall notify the Union in writing within five business days after it has subcontracted work, and shall, at the same, time provide to the Union a copy of the executed Agreement To Be Bound. 5 Execution Version issued under Section 6.6.4 of this Article, all parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agreement does not waive any party`s right to participate in a hearing for a final order of enforcement, The Court's order or orders enforcing the Arbitrator's award shall be served on all parties by hand or by delivery to their last known address or by registered mail or by electronic mail. All parties waive the right to require the issuance of a bond or other security for issuance of an injunction or an appeal to a refusal to issue one under this Article. 6.6.6. Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure or which interfere with compliance therewith are hereby waived by the parties to whom they accrue. 6.6.7. The fees and expenses of the Arbitrator shall be borne by the party or parties found in violation., or in the event no violation is found, such fees and expenses shall be borne by the moving party. 6.7 The procedures contained in Section 6.6 shall be applicable to any alleged violations of this Article. Disputes alleging violation of any other provision of this Agreement, including any underlying disputes alleged to be in justification, explanation or mitigation of any violation of this Article, shall be resolved under the grievance procedures of Article 7. 6.8 Notwithstanding the provisions of Section 6.1 above, with seventy-two (72) hours prior written notice to the Primary Employer, the Union retains the right to withhold the services of its members from a particular contractor or subcontractor who fails to make timely payments to the Union's benefit plans or fails to timely pay its weekly payroll in accordance with its agreements with the Union; provided, however, that in the event the Union or any of its members withhold their services from such contractor or subcontractor, Primary Employer shall have the right to replace such contractor or subcontractor with any other contractor or subcontractor who executes the Agreement to be Bound. 6.9 The Master Agreement shall govern, except to the extent it conflicts with the provisions of this Agreement, in which case the provisions of the Agreement shall prevail. In the event that the current Master Agreement expires and the Union negotiates a successor or extension to the Master Agreement, the Union shall continue to provide employees to the Employers working on the Project under all the terms of the Master Agreement in effect as of the Effective Date of this Agreement until a new Master Agreement is entered into, at which time all terms and conditions of the new Master Agreement shall apply to Covered Work at the Project from the effective date of the 10 Execution Version new Master Agreement, except to the extent they conflict with any provision of this Agreement, in which case the ternas of this Agreement shall prevail. 7. GRIEVANCE PROCEDURE 7.1 Any question or dispute arising out of and during the term of this Agreement involving its interpretation and application shall be considered a grievance, and shall be resolved in accordance with the provisions of this Article, A grievance between or among parties signatory to the Master Agreement arising out of or involving the interpretation of the Master Agreement shall be resolved under the grievance procedure provided in the Master Agreement. 7.2 The Primary Employer and other Employers, as well as the Union, may bring forth grievances under this Article. 7.3 A grievance shall be considered null and void if not brought to the attention of the Employer within fifteen (15) working days after the incident that initiated the alleged grievance occurred or reasonably should have been discovered, whichever is later. The terra "working days" as used in this Article shall exclude Saturdays, Sundays, or holidays regardless of whether any work is actually performed on such days. 7.4 Grievances shall be settled according to the following procedure: Step 1 The Union representative and the grievant shall attempt to resolve the grievance with the craft supervisor within five (5) working days after the Grievance has been brought to the attention of the Employer, This step may be skipped if the Union, rather than an individual employee, initiates the grievance. Step 2 In the event the matter remains unresolved in Step 1 above after five (5) working days, within five (5) working days thereafter, the alleged grievance may be referred in writing to the Union Business Manager, or his designated representative, and the site construction manager or Labor Relations representative of the Employer for discussion and resolution. A copy of the written grievance shall also be mailed, faxed or emailed to the Primary Employer. Step_ 3 In the event the matter remains unresolved in Step 2 above within five (5) working clays, within five (5) working days thereafter, the grievance may be referred in writing to the Union Business Manager, or his designated representative, and the Manager of Labor Relations of the Employer or the Manager's designated representative and the Primary Employer for discussion and resolution. 11 Execution version Step 4 If the grievance is not settled in Step 3 within five (5) working days, within five (5) working days thereafter, either party may request the dispute be submitted to arbitration or the time may be extended by mutual consent of both parties. The request for arbitration and/or the request for an extension of time must be in writing with a copy to the Primary Employer. Should the parties be unable to mutually agree on the selection of an Arbitrator, selection for that given arbitration shall be made by seeking a list of seven (7) labor arbitrators with construction experience from the Federal Mediation and Conciliation Service and alternately striking names from the list of names on the list until the parties agree on an Arbitrator or until one name remains. The first party to strike a name from the list shall alternate between the party defending the grievance and the party bringing the grievance. 7.5 The Arbitrator shall conduct a hearing at which the parties to the grievance shall be entitled to present testimonial and documentary evidence. The parties shall be entitled to file written briefs after the close of the hearing and receipt of the transcript. 7.6 The Arbitrator shall issue a written decision that will be served on all parties and on the Primary Employer. The Arbitrator shall have the authority to utilize any equitable or legal remedy to prevent and/or cure any breach or threatened breach of this Agreement. The Arbitrator's decision shall be final and binding as to all parties signatory to this Agreement. The parties agree that a judgment on the decision may be entered into by a court of competent jurisdiction. 7.7 The cost of the Arbitrator shall be borne equally by the parties to the grievance. All other costs and expenses in connection with the grievance hearing shall be borne by the party who incurs them. 7.8 The Arbitrator's decision shall be confined to the issue(s) posed by the grievance and the Arbitrator shall not have the authority to modify, amend, alter, add to or subtract from any provision of this Agreement. 7.9 Any party to a grievance may invite the Primary Employer to participate in resolution of a grievance. The Primary Employer may, at its own initiative, participate in Steps 1 through 3 of the grievance procedure. 7.10 In determining whether the time limits of Steps 2 through 4 of the grievance procedure have been met, a written referral or request shall be considered timely if it is personally delivered, sent by overnight mail, electronic mail, or faxed within the five (5) working day period. Any of the time periods set forth in this Article may be extended in writing by mutual consent of the parties to the grievance. Failure to process a grievance, or failure to respond in writing within the time limits 12 Execution Version provided above, without a request for an extension of time, shall be deemed a waiver of such grievance to the other without prejudice, or without precedent to the processing of and/or resolution of like or similar grievances. 7.11 In order to encourage the resolution of disputes and grievances, the Parties agree that settlements shall not be precedent setting. 7.12 Individual seniority shall not be recognized or applied to employees working under this Agreement. 7.13 The Employer shall establish and employees shall observe such reasonable project job site work rules as the Employer deems appropriate. These rules will be reviewed and discussed at the pre job conference, distributed to all employees, posted at the project site by the Employer, and may be amended thereafter as necessary. 8. MANAGEMENT RIGHTS 8.1 Notwithstanding any provision to the contrary in the Master Agreement, the Employer retains and shall exercise full and exclusive authority and responsibility for the management of its operations and work forces, except as expressly limited by the terms of this Agreement. This authority includes, but is not limited to, the right to: 8.1.1. Plan, direct and control the operation of all the work and the workforce. 8.1.2. Decide the number and type of employees required for the work on both a daily basis and a project basis. 8.1.3. Hire, promote, and layoff employees as deemed appropriate to meet work requirements and/or skills required, and to select and hire directly all supervisory personnel above the classification of general foreman it considers necessary and desirable, without such persons being referred by the Union. 8.1.4. The selection of foremen. 8.1.5. Discharge, suspend, or discipline employees for just cause. 8.1.6. Require all employees to observe the Employers' and Owners' reasonable Project Rules, Security, Environmental and Safety Regulations, consistent with the provisions of this Agreement. These Project Work Rules and Regulations shall be supplied to the Union, to all employees and posted on the job site. 8.1.7. Determine the competency of all employees. 13 Execution version 8.1.8. Assign and schedule work crews at its sole discretion and determine when overtime will be worked and the number of employees engaged in such work. There shall be no refusal by the Union to perform work, including overtime work, assigned. 8.1.9. Utilize any safe work methods, procedures or techniques and select and use any type or kind of materials, apparatus or equipment regardless of source, manufacturer, or designer. The foregoing listing of management rights shall not be deemed to exclude other functions not specifically set forth herein that do not conflict with the terms of this Agreement. 8.2. The Union understands the importance of maintaining construction duality and maintaining the construction schedule. The Union also understands that construction errors or delays in construction can result in the loss of production, which creates a great loss to Primary Employer. Therefore, the Union will encourage and advise the employees to exhaust every effort, ways, and means to perform work of good quality and quantity. The Parties recognize the necessity for eliminating restrictions and promoting efficiency and agree that no rules, customs, or practices shall be permitted that limit production, efficiency, or increase the time required to do the work, and no limitation shall be placed upon the amount of work which an employee shall perform, nor shall there be any restrictions against the use of any kinds of machinery, tools, or labor-saving devices. No rule or regulation shall be adopted that compromises employee safety. Nothing in this Agreement shall require any employee to engage in an unsafe work practice. The Employer may utilize any methods or techniques of construction, tools, or other labor saving devices to accomplish the work. 8.3. There shall be no limitation or restriction by Union upon an Employer's choice of materials or design, nor upon the full use and utilization of equipment, machinery, packaging, pre- cast, pre -fabricated, pre -finished, or pre -assembled materials, tools, or other labor saving devices. For Covered Work, the on -site installation or application of all items shall be performed by the Union; provided, however, it is recognized that installation of specialty items which may be furnished by Owner or Employer may be performed by employees employed under this Agreement who may be directed by other personnel in a supervisory role, or, in limited circumstances requiring special knowledge of the particular items), may be performed by employees of the vendor or other companies where necessary to protect a manufacturer's warranty or where the employees working under this Agreement lack the required skills to perform the work. 8.4. The use of new technology, equipment, machinery, tools, and/or labor saving devices and methods of performing work may be initiated by Employer from time -to -time during the project. 14 Execution Version Union agrees that it will not ui any way restrict the implementation of such new devices or work methods. If there is any disagreement between the Employer and Union concerning the mamier or implementation of such device or method of work, the implementation shall proceed as directed by the Employer, and Union shall have the right to grieve and/or arbitrate the dispute as set forth in Article 8 of this Agreement. 8.5. All Employers may utilize the substance abuse and testing program contained in the Master Agreement. If requested by the Primary Employer, the Primary Employer and the Union will negotiate a substitute program consistent with construction industry standards in the area. 9. GENERAL PROVISIONS 9.I If any article or provision of this Agreement shall become invalid, inoperative, and/or unenforceable by operation of law or by declaration of any competent authority of the executive, legislative, judicial or administrative branches of the federal or local government, (a) the remainder of the Agreement or application of such article or provision to persons or circumstances other than to .which it has been held invalid, inoperative or unenforceable shall not be affected thereby, and (b) the Parties shall suspend the operation of such article or provision during the period'of its invalidity, and the Primary Employer and the Union shall negotiate in its place and stead an article or provision that will satisfy the objections to its validity and that, to the greatest extent possible, will be in accord with the intent and purpose of the article or provision in question -The new article or provision negotiated by the Primary Employer and the Union shall be binding on all parties signatory to this Agreement. At all times relevant the provisions of Article 6 will apply. 9.2 Except as specified in this Agreement, all other terms and conditions of employment described in the Master Agreement shall apply, 9.3 Any modifications. amendments, or supplements to this Agreement may be entered into between the Primary Employer and the Union. 9.4 The provisions of this Agreement shall take precedence over any and all conflicting provisions of the Master Agreement, and if there is any conflict in any such provisions the terms of this Agreement shall govern. 9.5 Each person executing this Agreement represents and warrants that he or she is authorized to execute this Agreemeut on behalf of the party or parties indicated. 9.6 This Agreement may be executed in any number of counterparts, and each counterpart shall be deemed to be an original document. All executed counterparts together shall constitute one 15 Execution Version and the same document, and any signature pages may be assembled to forma a single original document. 10. TERM OF AGREEMENT 10.1 This Agreement shall commence on the date indicated below as the date of execution, and shall continue in effect until the Completion of All Covered Work on the Project pursuant to Article 2. Upon Completion of All Covered Work, the Union shall provide Owner/Developer or Primary Employer with written confirmation that the Agreement is no Ionger in effect. 10.2 Prior to Completion of All Covered Work, upon request from Owner or Primary Employer, the Union shall confirm, in writing, the current status of the Agreement, to include certification that the Agreement has not been modified and is in full force and effect, that there are no known defaults under the Agreement, and such other similar certifications as reasonably requested by Owner or Primary Employer. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and effective as of 9.13 . i , (the Effective Date") [Project Manager/General Contractor] [Signature, Title [Print Name of Person Signing] Date: SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS [Signature, Title] [Signature, Title] [Signature, Title] Date: LA O ERS IN N AMERI� [Si , Titl ] Date: 1b ATIONAL UNION OF )CAL 1184 Execution Version ATTACHMENT A AGREEMENT TO BE BOUND PUBLIC WORKS PROJECT LABOR AGREEMENT SILVERROCK. RESORT PROJECT The undersigned hereby certifies and agrees that: 1. It is an Employer as that term is defined in Section 1.6 of the SilverRock Resort Public Works Project Labor Agreement ("Agreement") because it has been, or will be, awarded a contract or subcontract to assign, award or subcontract Covered Work on the Project (as defined in Sections 1.2 and 2.1 of the Agreement), or to authorize another party to assign, award or subcontract Covered Work, or to perform Covered Work. 2. In consideration of the award of such contract or subcontract, pursuant to Section S(i) of the National Labor Relations Act, and in further consideration of the promises made in the Agreement and any attachments thereto (a copy of which was received and is hereby acknowledged), it accepts and agrees to be bound by the terms and conditions of the Agreement, together with any and all amendments and supplements now existing or which are later made thereto. 3. If it performs Covered Work, it will be bound by the legally established trust agreements designated in Laborers Union's Master Agreement, and hereby authorizes the parties to such Trust Agreements to appoint trustees and successor trustee to administer the trust funds, and hereby ratifies and accepts the trustees so appointed as if made by the undersigned. 4. It has no commitments or agreements that would preclude its full and complete compliance with the terms and conditions of the Agreement and the assignment of all Covered Work to the Laborers Union. 5, It will secure a duly executed Agreement To Be Bound, in form identical to this document, from any Einployer(s) at any tier or tiers with which it contracts to assign., award, or subcontract Covered Work, or to authorize another party to assign, award or subcontract Covered Work, or to perform Covered Work. 01-1 DATED: �°IName of Employer icmdffli (Authorized Officer & Title) _Vb pox V1 (Address) nA 17