HomeMy WebLinkAboutAT&T/SBC/Pacific Bell; 2006-05-18; 5623110ACW-F Iss. 1/31/06
AT&T Project Number 5623110
Return signed Application with payment to: Telco Desk
4220 Arizona Street
San Diego, CA 92104
APPLICATION FOR CUSTOM WORK - FIXED PRICE BASIS
February 27, 2006
City of Carlsbad
1635 Faraday Aveune
Carlsbad, CA 92008
ATTN: Mr. Soileau
RECEIVED
FEB 2 7 2006
CITY OF CARLSBADENGINEERING DEPARTMENTCM*I DIVISION r _
DESCRIPTION OF CUSTOM WORK: 20B UNDERGROUND CONVERSION OF AERIAL TELEPHONE
FACILITIES FOR N/W QUAD PARK-PROJECT #441686-050
CHARGE FOR CUSTOM WORK: Preparing specifications and drawings for the USS and inspecting
Applicant's trenching and installation of USS
FIXED CONTRACT PRICE: $3,720.87
Applicant has asked AT&T to perform the above-described custom work for which Applicant shall pay AT&T the
contract price of $Three Thousand Seven Hundred Twenty Dollars and Eighty-Seven Cents/$3,720.87 in advance
of the start of any AT&T work.
Applicant shall pay for work on a "Fixed Price" basis. Thus, the amount quoted above is the amount Applicant will
pay for the work regardless of the actual cost of the work.
Charges are computed in accordance with AT&T's ordinary accounting practices under the Uniform System of
Accounts for Class A telephone companies and include allocated costs for labor, engineering, materials,
transportation, motor vehicles, and tool and supply expenses and, if applicable, a 33 percent tax component
collected for State and Federal Income Tax purposes in accordance with CPUC decision 87-09-026.
The amount of $Three Thousand Seven Hundred Twenty Dollars and Eighty-Seven Cents/$3,720.87 is
valid for only sixty (60) days and is therefore subject to change after April 27, 2006 if AT&T has not
received an executed copy of the Application and the advance payment by that date.
If the applicant cancels the work prior to completion, Applicant shall pay AT&T for all costs AT&T has incurred
before being notified in writing to cease work.
AC
Mayor
Date signed:May 18, 2006
ACCEPTED FOR AT&T:
Bv: 4V\0/UA/ A
Printed foamfe: Mary G. Ward
Title: Manager-OSP Engineer
Date signed: February 27, 2006
AERIAL TO UNDERGROUND CONVERSION AGREEMENT
(APPLICANT TO CONSTRUCT USS)
(RULE 32.A.2)
BETWEEN
CITY OF CARLSBAD
and
PACIFIC BELL TELEPHONE COMPANY
DBA AT&T CALIFORNIA
RE
N/W QUAD PARK - 20B CONVERSION
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TABLE OF CONTENTS
I. DEFINITIONS 1
II. RECITALS 1
III. SPECIFIC PROVISIONS 2
A. Tariff. 2
B. Construction 2
C. Term 3
D. Title 3
E. Tax Liability 3
F. Payment 4
G. Cancellation, Modification or Deferment 4
H. Indemnity. Limitation of Liability 4
I. Insurance 5
J. Warranty 6
K. Liens 6
L. Licenses and Easements 6
M. Performance 7
N. Damage to Facilities 7
O. Schedule of Work 7
P. Force Majeure 7
Q. Compliance With Laws 8
IV. GENERAL PROVISIONS 8
A. Assignment 8
B. Binding Effect 8
C. Termination 8
D. Attorneys' Fees 8
E. Entire Agreement 9
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F. Independent Contractor 9
G. Jurisdiction 9
H. Notices 9
I. Waiver and Amendment 9
Exhibit A Applicant's Approved Street Improvement Plans
Exhibit B AT&T's Estimated Costs
Exhibit C Executive Orders and Associated Regulations
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THIS AGREEMENT ("Agreement") is between CITY OF CARLSBAD, a California
corporation ("Applicant"), and PACIFIC BELL TELEPHONE COMPANY, a California
corporation doing business as AT&T CALIFORNIA ("AT&T") (collectively the "Parties").
I. DEFINITIONS.
As used in this Agreement, the following terms apply:
A. The term "Tariff refers to Schedule Cal. P.U.C. No. A2, Rule 32.A.2.
B. The terms "Underground Supporting Structure" and "USS" include, but are not
limited to, conduit, manholes, service boxes, and related equipment.
C. The terms "Trench" and "Trenching" include, but are not limited to, excavating,
backfilling, compacting, and, as necessary, breaking and replacing pavement,
sidewalks, driveways, curbs and gutters, and restoring all other surface features
disturbed by underground construction including landscaping, plus the cost of
performing such work.
D. The term "Hazardous Substance" refers to any substance, material or chemical
that is or becomes regulated under applicable local, state, or federal law,
regulation, or ordinance.
E. The term "District" refers to the area in/on/along Harding Street-Pine Avenue to
Chestnut Avenue, Chestnut Avenue-Harding Street to Madison Street where the
undergrounding of existing aerial facilities is to take place.
F. The term "Project" means all of the work required to underground existing aerial
facilities within the District.
G. The term "CPUC" refers to the California Public Utilities Commission.
II. RECITALS.
A. Applicant has asked AT&T to replace its existing aerial communication facilities
with underground communication facilities within the District.
B. AT&T is willing to underground its existing aerial communication facilities
within the District, subject to the terms and conditions of this Agreement.
In consideration of the above, the Parties agree as follows:
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III. SPECIFIC PROVISIONS.
A. Tariff.
The Project will be conducted in accordance with the Tariff.
B. Construction.
1. Upon receipt of a copy of this Agreement that has been executed by
Applicant and the advance payment described in Section HI.G, AT&T will
engineer and perform the work required to convert its existing aerial
facilities to underground facilities in the area in the District shown on
Applicants' plans, which are attached hereto as Exhibit A.
2. If, during the installation or construction of communications facilities,
AT&T employees, subcontractors, or agents encounter any Hazardous
Substance(s) that may be disturbed by AT&T's activities:
a. AT&T shall give prompt written notice of the discovery of the
Hazardous Substance(s) to Applicant;
b. AT&T shall suspend performance under this Agreement until (1)
containment and removal of the Hazardous Substance(s) has been
completed and approved by the appropriate governmental
agency(ies), if such approval is required, or approved by AT&T if
governmental agency(ies) approval is not required, or (2) Applicant
reasonably demonstrates that the Hazardous Substance(s) will not
be disturbed by AT&T's activities;
c. AT&T's performance of its obligations under this Agreement is
extended for the amount of time which it takes to complete
containment/removal of the Hazardous Substance(s); and,
d. If Applicant elects not to remove/contain the Hazardous
Substance(s), AT&T may terminate this Agreement without further
liability by giving advance notice to Applicant no later than ten
(10) days after the date the Applicant notifies AT&T of its decision
not to remove/contain the Hazardous Substance(s). hi this case,
Applicant shall reimburse AT&T for AT&T's share of the USS
cost paid by AT&T and for the costs incurred by AT&T for the
placement of cables and wiring on the Project and the wrecking
associated with that placement up to the effective date of the
termination. Upon such payment, Applicant shall become the
owner of said wire and cables.
3. Applicant shall be responsible for the construction and installation of the
necessary USS along the public way and utility rights of way in the
District and shall prepare all documents necessary to coordinate and
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implement the Project plans. The documents shall include, but shall not
be limited to: (a) Project Plans and Specifications, which shall be prepared
in accordance with specifications and drawings furnished to Applicant by
AT&T; (b) documents that delineate all USS to be constructed and
installed within the District; (c) a Bid Package covering the construction
and installation of the USS for which Applicant is responsible; (d) separate
agreements with Participants pertaining to the construction of facilities for
the Project; and (e) a contract ("Contract") with an independent contractor
for the construction and installation of USS for which Applicant is
responsible under the Project. APPLICANT SHALL NOT DEVIATE
FROM AT&T'S TRENCH SPECIFICATIONS WITHOUT AT&T'S
PRIOR WRITTEN CONSENT.
4. Applicant shall award the Contract to a qualified bidder. The terms and
conditions of the Contract shall oblige the Contractor to furnish all
materials, adhere to the Project Plans and Specifications, and install the
USS at the locations designated on the map attached to this Agreement as
Exhibit A. Applicant shall have full supervision of and control over the
independent contractor's construction and installation of the USS.
However, AT&T shall be given the opportunity to inspect the construction
and installation of the USS and to coordinate with Applicant to ensure that
the construction and installation are completed in accordance with the
Project plans and specifications.
Applicant shall require all property owners who are served by the aerial
facilities to be replaced within the District to provide and maintain the
USS on their property.
C. Term.
This Agreement is effective upon execution and shall continue in effect until
terminated or canceled as provided by law or this Agreement.
D. Title
Upon inspection and acceptance in writing of the USS by AT&T, title to the USS
and all associated communications facilities placed by or for AT&T, except the
underground service connections, shall vest in AT&T, provided that such is free
of all liens and encumbrances.
E. Tax Liability
Applicant shall pay, and hold AT&T harmless from and against, all penalties,
interest, taxes or other charges that are levied or assessed against Applicant.
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F. Payment.
Applicant shall pay to AT&T within forty-five (45) days after execution of this
Agreement the sum of Three Thousand Seven Hundred Twenty Dollars and
Eighty-Seven Cents/$3,720.87, which represents the estimated cost of AT&T
preparing specifications and drawings for the USS and inspecting Applicant's
trenching and installation of the USS.
If applicable, Applicant shall pay to AT&T a tax component of- NOT
APPLICABLE - for Federal and State Income Tax in accordance with CPUC
decision 87-09-026.
Applicant shall send payments to:
AT&T California
4220 Arizona Street, Room 200
California, CA 92104
ATTN: Mary Ward
G. Cancellation. Modification or Deferment.
If Applicant cancels, modifies or defers its request for conversion of the aerial
facilities to underground facilities within the District, Applicant shall pay all
charges incurred by AT&T, in accordance with the Tariff.
H. Indemnity; Limitation of Liability.
1. Applicant shall indemnify, defend at AT&T's request and at no cost or
expense to AT&T, and hold harmless AT&T and its officers, agents and
employees, as well as its associated and affiliated companies and their
respective officers, agents, and employees ("Indemnitees"), from and
against any and all losses, damages, expenses, costs, penalties, fines, fees
(including reasonable attorney's and consultant's fees), or liabilities
(collectively "Liabilities"), incurred as a result of any injury to or death of
any person(s) or damage to any property(ies) arising out of or in
connection with the materials used or the work performed by Applicant
under this Agreement or the condition of the Project's property, including
environmental contamination, except where such Liabilities are caused by
the sole negligence or willful misconduct of Indemnitees.
2. AT&T shall notify Applicant within a reasonable time of any written claim
or demand against AT&T for which Applicant is responsible under this
section. Applicant shall also (a) keep AT&T fully informed as to the
progress of such defense, and (b) afford AT&T, at its own expense, an
opportunity to participate with Applicant in the defense or settlement of
such claims, demand, lawsuits or other legal proceedings.
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3. These indemnities shall survive the termination or cancellation of this
Agreement or any provision to the contrary herein.
4. IN NO EVENT WILL AT&T BE LIABLE TO APPLICANT FOR
INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, WHETHER BY TORT OR
CONTRACT, INCLUDING LOST REVENUES, LOSS OF PROFITS OR
OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF
THE PERFORMANCE OF THIS CONTRACT, INCLUDING,
WITHOUT LIMITATION, NEGLIGENT PERFORMANCE OR
FAILURE TO PERFORM, OR A DEFECT OR FAILURE TO
PERFORM OR DEFECT OF CABLE OR WIRING, REGARDLESS OF
THE FORESEEABILITY THEREOF.
I. Insurance.
With respect to performance hereunder, and in addition to Applicant's obligation
to indemnify, Applicant agrees to maintain, at all times during the term of this
Agreement, the following minimum insurance coverages and limits and any
additional insurance and/or bonds required by law:
1. Worker's Compensation insurance covering Applicant's full liability
under the worker's compensation laws of California and Employers
Liability insurance with minimum limits of $1,000,000 for Bodily Injury-
each accident, $1,000,000 for Bodily Injury by disease-policy limits and
$1,000,000 for Bodily Injury by disease-each employee.
2. Commercial General Liability insurance with minimum limits of:
$2,000,000 general aggregate limit; $1,000,000 each occurrence limit for
all bodily injury or property damage incurred in any one occurrence;
$1,000,000 each occurrence limit for Personal Injury and Advertising;
$2,000,000 Products/Completed Operations aggregate limit, and
$1,000,000 each occurrence limit for Products/Completed Operations.
AT&T will be named as an additional insured on the Commercial
General Liability policy.
3. If use of a motor vehicle is required, Automobile Liability insurance with
minimum limits of $1,000,000 combined single limits per occurrence for
bodily injury and property damage, which coverage shall extend to all
owned, hired and non-owned vehicles.
4. AT&T requires that companies affording insurance coverage have a
rating of A or better and a Financial Size Category rating of VIII or better,
as rated in the A.M. Best Key Rating Guide for Property and Casualty
Insurance Companies.
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5. A certificate of insurance stating the types of insurance and policy limits
provided the Applicant must be received prior to commencement of any
work.
The cancellation clause on the certificate of insurance will be amended to
read as follows:
"THE ISSUING COMPANY WILL ENDEAVOR TO
PROVIDE AT LEAST 30 DAYS ADVANCE WRITTEN
NOTICE OF CANCELLATION OR NON-RENEWAL TO
AT&T."
6. Applicant shall also require all contractors and subcontractors performing
work on the Project or who may enter upon the work site to maintain the
same insurance requirements listed above.
J. Warranty.
1. Applicant warrants that that for a period of two (2) years following
acceptance of the USS by AT&T, all work and materials to be furnished
under this Agreement:
a. shall conform in all respects to the requirements of this Agreement;
b. are adequate for the purposes for which they are intended;
c. are free from any defects in design, materials, workmanship and
title including, but not limited to, defects that will cause caving or
sinking of the Trench, the USS, paving, or other materials.
2. Applicant warrants that qualified personnel will perform all work
promptly and with diligence, to AT&T's reasonable satisfaction, and that
all work and materials shall be subject to all statutory and express or
implied warranties. This warranty shall survive inspection, acceptance,
termination and payment.
3. Except as disclosed to and acknowledged by AT&T in writing, Applicant
is not aware of the presence of any Hazardous Substance at the locations
on the Project where AT&T will be installing cable and wiring and
performing wrecking in association with such installations.
K. Liens.
Applicant and its agents and contractors shall keep the USS free from any
statutory or common law lien arising out of any work performed, materials
furnished or obligations incurred by Applicant, its agents or contractors. In the
event a lien is recorded against the USS and it is not removed from the record
within ten (10) days after notice is given by AT&T to Applicant to do so, AT&T
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shall have the right to pay and discharge the lien without regard to whether the
lien shall be lawful, valid or correct. Applicant shall, within thirty (30) days after
receiving written notice from AT&T, reimburse AT&T for any such claim paid by
it.
L. Licenses and Easements.
Prior to construction of the Project, Applicant shall, at no cost to AT&T, furnish
AT&T with any and all licenses or grants of easements that are necessary to
accommodate the Project, including the construction and maintenance of AT&T's
facilities.
M. Performance.
If Applicant should default in the performance of any work that it is obligated to
perform under this Agreement within the time allowed for such work, AT&T may
elect, by written notice to Applicant, to perform the work at Applicant's sole risk
and expense and Applicant shall pay to AT&T upon demand AT&T's actual costs
for performing the work.
N. Damage to Facilities.
Applicant and its employees, agents and contractors shall exercise special
precaution and care to avoid causing damage to AT&T's facilities in performing
work under the Project. Applicant shall assume responsibility for any and all
losses, costs and expenses arising out of, caused by, or in any way connected with
such damages, including consequential damages. Applicant shall immediately
report in writing the occurrence of any such damage to AT&T. Applicant shall,
on demand, reimburse AT&T for the entire expense incurred in replacing or
repairing the damage.
O. Schedule of Work.
AT&T shall not commence detailed engineering of the Project prior to receiving a
copy of this Agreement that has been executed by Applicant. AT&T shall have its
facilities converted contingent upon mutually acceptable schedules, timely
obtaining of permits, licenses and other documents, and not being delayed by
those uncontrollable forces described in Section in.Q below.
P. Force Majeure.
AT&T shall not be held liable to Applicant for any delay in performance under
this Agreement from any cause beyond its control and without its fault or
negligence, such as acts of God, acts of civil or military authority, government
regulations, the presence of archeological or historical artifacts or Hazardous
Substances on, in, or near the Project, embargoes, epidemics, war, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods,
strikes, power blackouts, volcanic action, other major environmental disturbances,
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unusually severe weather conditions, inability to secure products or services of
other persons or transportation facilities, or acts or omissions of carriers. If any of
the foregoing events occur, AT&T agrees, if requested by Applicant, to accelerate
its efforts hereunder if reasonably feasible in order to regain lost time, so long as
Applicant agrees to reimburse AT&T for the incremental actual costs of such
efforts.
Q. Compliance With Laws.
Applicant shall comply with all applicable federal, state, county, and local
statutes, laws, ordinances, regulations, and codes. Applicant further agrees to
comply with all applicable Executive Orders and regulations, including, but not
limited to, those that are attached to this Agreement as Exhibit C. As used in
Exhibit C, "Contractor" means Applicant.
IV. GENERAL PROVISIONS.
A. Assignment.
Applicant shall not wholly or partially assign this Agreement without the prior
written consent of AT&T.
B. Binding Effect.
This Agreement shall be for the benefit of and is binding upon the respective
successors and assigns of the parties hereto.
C. Termination.
This Agreement automatically terminates upon completion and acceptance of the
USS by AT&T. In the event of any material default or breach of this Agreement
by Applicant, in addition to all other rights and remedies which AT&T may have
at law or in equity, AT&T shall have the immediate right to terminate this
Agreement by giving ten (10) days prior written notice of termination. The notice
shall specify the cause of termination and shall give Applicant a reasonable
opportunity to cure and correct any such cause. In the event this Agreement is
terminated or suspended as provided herein, AT&T shall not be liable to
Applicant or any other person or entity for any losses, damages or claims that arise
as a result of termination. Applicant shall pay to AT&T all costs and expenses
incurred by AT&T prior to termination of this Agreement. Any termination of
this Agreement in whole or in part shall not release Applicant from any liability or
obligation under this Agreement, whether of indemnity or otherwise, that accrued
or that may be accruing or that arises out of any claim that may have accrued or
may be accruing at the time of termination.
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D. Attorneys' Fees.
If any action is brought to adjudicate the rights granted in this Agreement or to
enforce any of the terms of this Agreement, the prevailing party shall be entitled to
an award of reasonable attorneys' fees in an amount to be determined by a court or
a tribunal of competent jurisdiction.
E. Entire Agreement.
This Agreement and the Exhibits attached hereto that are incorporated herein by
this reference constitute the entire Agreement between the parties with respect to
the subject matter hereof. All prior agreements, representations, statements,
negotiations and understandings are superseded.
F. Independent Contractor.
Applicant and its agents, employees and contractors shall perform all work under
this Agreement as independent contractors and not as affiliates, partners, joint
ventures, agents, employees, servants or assigns of AT&T.
G. Jurisdiction.
This Agreement shall be governed by the laws of the State of California and is
subject to the applicable rules, regulations and tariffs on file with the CPUC.
H. Notices.
All notices and other communications hereunder shall be in writing addressed as
follows and shall be deemed given when: delivered in person, delivered to an
agent, such as an overnight or similar delivery service, or three days after being
deposited in the United States mail, postage prepaid:
City of Carlsbad AT&T California
163 5 Faraday Avenue 4220 Arizona Street, Room 200
Carlsbad, CA 92008 San Diego, CA 92104
I. Waiver and Amendment.
The provisions of this Agreement shall not be waived, altered, or amended by any
representations or promises of any party unless consented to in writing by all
parties hereto.
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The duly authorized representatives of Applicant and AT&T have executed this Agreement by
affixing their signatures on the dates indicated below.
CITY OF CARLSBAD
May
Printed Name: Claude A. Lewis
PACIFIC BELL TELEPHONE COMPANY
Date Signed: May 17, 2006
By:
Title: Manager-OSP Engineer
Printed Name: Mary G. Ward
Date Signed: February 24, 2006
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Engineering Work Order Number: Pine Av Park.des
Special Construction Charges for Location:
Summary of Charges
Materials $0.00
Cable $0.00
Poles $0.00
Terminals $0.00
Drop Wire $0.00
Apparatus and Equipment $0.00
Joint Poles Charges $0.00
Permit and Filling Fees $0.00
Contract Material $0.00
Miscellaneous $0.00
Engineering $2,395.92
(Includes Engineering and Clerical Support)
Construction $1,324.95
(Constructing, Splicing, Testing and Contract Cost
Salvage (if any) $0.00
Sub-Total (Material+Labor-Salvage) $3,720.87
CIACfor SBC Provided Labor & Material: $0 00
Contribution in Aid of Construction
(0% applied to sub-total)
CIACfor Developer Contributed $000
Material:
Total CIAC $0.00
Total CIA C Exempt Labor Charges: $0.00
Total Billing Amount j3 720
Reviewed and Approved By "7 Kfl/UA/ AJ. Wfl/iAyEngineer
Wednesday, February 22, 2006 ACE Page: 1 of 1
Automated Construction and Engineering
Exhibit C
Executive Orders and Associated Regulations
AT&T California and AT&T Nevada, as common carriers of telecommunications services, engage
in work as contractors for various departments and agencies of the United States Government.
Also, certain facilities may be constructed pursuant to federally assisted construction programs.
Because of the foregoing, work under this contract may be subject to the provisions of certain
Executive Orders, federal laws and associated regulations. To the extent that such Executive
Orders, federal laws and associated regulations apply to the work under this contract, and only to
that extent, Contractor agrees to comply with the provisions of all such Executive Orders, federal
laws and associated regulations as no in force or as may be amended in the future, including, but
not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS.
In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. § 60-1.4,
the parties incorporate herein by this reference the regulations and contract clauses required by
those provisions to be made a part of nonexempt contracts and subcontracts.
2. CERTIFICATION OF NONSEGREGATED FACILITIES.
In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. §60-1.8,
Contractor certifies that it does not and will not maintain or provide for its employees any facilities
segregated on the basis of race, color, religion, sex, or national origin at any of its establishments,
and that it does not and will not permit its employees to perform their services at any location
under its control, where such segregated facilities are maintained. The term "facilities" as used
herein means waiting rooms, work areas, restaurants and other eating areas, time clocks,
restrooms, wash rooms, locker rooms and other storage or dressing areas, parking lots, drinking
fountains, recreation or entertainment areas, transportation, and housing facilities provided for
employees, provided that separate or single-user toilet and necessary changing facilities shall be
provided to assure privacy between the sexes. Contractor will obtain similar certifications from
proposed subcontractors prior to the award of any nonexempt subcontract.
3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM.
Contractor certified that it has developed and is maintaining an Affirmative Action Plan as
required by 41 C.F.R. § 60-1.40.
4. CERTIFICATION OF FILING.
Contractor certifies that it will file annually, on or before the 31* of March, complete and accurate
reports on Standard Form 100 (EEO-1) or such forms as may be promulgated in its place as
requiredby41 C.F.R. § 60-1.7.
5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE
VIETNAM ERA.
In accordance with Executive Order 11701, dated January 24, 1973, and 41 C.F.R. 60-250.20, the
parties incorporate herein by this reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
6. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS.
In accordance with Executive Order 11758, dated January 15, 1974, and 41 C.F.R. §60-741.20,
the parties incorporate herein by this reference the regulations and contract clauses required by
those provisions to be made a part of Government contracts and subcontracts.
7. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL
DISADVANTAGED BUSINESS CONCERNS.
48 C.F.R., Ch. 1, § 19.740(4) and 19.708(a) require that the following clause is included:
Utilization of Small Business concerns and Small Disadvantaged Business Concerns (June,
1985)
(a) It is the policy of the United States that small business concerns and small business
concerns owned and controlled by socially and economically disadvantaged individuals shall have
the maximum practicable opportunity to participate in performing contracts let by and Federal
agency, including contracts and subcontracts for subsystems, assemblies, components, and related
services for major systems. It is further the policy of the United States that its prime contractors
establish procedures to ensure the timely payment of amounts due pursuant to the terms of their
subcontracts with small business concerns and small business concerns owned and controlled by
socially and economically disadvantaged individuals.
(b) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to
the fullest extent consistent with efficient contract performance. The Contractor further agrees to
cooperate in any studies or surveys as may be conducted by the United States Small Business
Administration or the awarding agency of the United States as may be necessary to determine the
extent of the Contractor's compliance with this clause.
(c) As used in this contract, the term "small business concern" shall mean a small business
as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated
pursuant thereto. The term "small business concern owned and controlled by socially and
economically disadvantaged individuals" shall mean a small business concern:
(1) Which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals; or, in the case of any publicly owned businesses, at least 51 percent of
the stock of which is owned by one or more socially and economically disadvantaged individuals;
and
(2) Whose management and daily business operations are controlled by one or more
of such individuals.
The Contractor shall presume that socially and economically disadvantaged individuals include
Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian
Americans and other minorities, or any other individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small Business Act.
(d) Contractors acting in good faith may rely on written representations by their
subcontractors regarding their status as either a small business concern or a small business concert
owned and controlled by socially and economically disadvantaged individuals.
Small Business and Small Disadvantaged Business Subcontracting Plan.
Contractor, unless it is a small business concern, as defined in section 3 of the Small Business Act
agrees to adopt and comply with a small business and small disadvantaged business subcontracts;
plan, which shall be included in and made a part of this contract. The parties incorporate herein b;
this reference the regulations and contract clauses required by 48 C.F.R., Ch. 1, §§ 19.704(4) and
19.708(b) to be made a part of Government contracts and subcontracts.
8. WOMEN-OWNED SMALL BUSINESSES.
As prescribed in 48 C.F.R., Ch. 1, § 19.902, the following clause is included in solicitations and
contracts when the contract amount is expected to be over the small purchase threshold, unless (a)
the contract is to be performed entirely outside the United States, its possessions, Puerto Rico, ant
the Trust Territory of the Pacific Islands, or (b) a personal services contract is contemplate:
(a) "Woman-owned small businesses," as used in this clause, means businesses that are at
least 51 percent owned by women who are United States citizens and who also control and
operate the business.
"Control," as used in this clause, means exercising the power to make policy decisions.
"Operate," as used in this clause, means being actively involved in the day-to-day
management of the business.
(b) Policy. It is the policy of the Government to award contracts to concerns that agree to
perform substantially in labor surplus areas (LSA's) when this can be done consistent with the
efficient performance of the contract and at prices no higher than are obtainable elsewhere. The
Contractor agrees to use its best efforts to place subcontracts in accordance with this policy.
(c) Order of Preference. In complying with paragraph (b) above and with paragraph (c) of
the clause of this contract entitled Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns, the Contractor shall observe the following order of preference
in awarding subcontracts: (1) small business concerns that are LSA concerns, (2) other small
business concerns, and (3) other LSA concerns.
(d) Definitions. "Labor surplus area," as used in this clause, means a geographical area
identified by the Department of Labor in accordance with 20 C.F.R. § 654, Subpart A, as an area
of concentrated unemployment or underemployment or an area of labor surplus.
"Labor surplus area concern," as used in this clause, means a concern that together with its
first-tier subcontractors will perform substantially in labor surplus areas. Performance is
substantially in labor surplus area if the costs incurred under the contract on account of
manufacturing, production, or performance of appropriate services in labor surplus areas exceed
50 percent of the contract price.
Labor Surplus Area Subcontract Program.
(a) See the Utilization of Labor Surplus Area Concerns clause of this contract for
applicable definitions.
(b) The Contractor agrees to establish and conduct a program to encourage labor surplus
area (LSA) concerns to compete for subcontracts within their capabilities at prices no higher than
obtainable elsewhere. The contractor shall ~
(1) Designate a liaison officer who will (i) maintain liaison with authorized
representatives of the Government on LSA matters, (ii) supervise compliance with the Utilization
of Labor Surplus Area Concerns clause, and (iii) administer the Contractor's labor surplus area
subcontracting program;
(2) Provide adequate and timely consideration of the potentialities of LSA concerns
in all make-or-buy decisions;
(3) Ensure that LSA concerns have an equitable opportunity to compete for
subcontracts, particularly by arranging solicitations, time for the preparation of offers, quantities,
specifications, and delivery schedules so as to facilitate the participation of LSA concerns;
(4) include the Utilization of Labor Surplus Area Concerns clause in subcontracts
that offer substantial LSA subcontracting opportunities; and
(5) Maintain records showing (i) the procedures adopted and (ii) the Contractor's
performance, to comply with this clause. The records will be kept available for review by the
Government until the expiration of 1 year after the award of this contract, or for such longer perkx
as may be required by any other clause of this contract or by applicable law or regulations.
(c) The Contractor further agrees to insert in any related subcontract that may exceed
$500,000 and that contains the Utilization of Labor Surplus Area Concerns clause, terms that
conform substantially to the language of this clause, including this paragraph (c), and to notify the
Contracting Officer of the names of subcontractors.
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