HomeMy WebLinkAboutPacific Bell Telephone Company dba SBC California; 2005-06-08;ORIGINAL
AERIAL TO UNDERGROUND CONVERSION AGREEMENT
APPLICANT TO CONSTRUCT UNDERGROUND SUPPORTING STRUCTURE
(RULE 32(A)(3))
BETWEEN
CITY OF CARLSBAD
and
PACIFIC BELL TELEPHONE COMPANY DBA SBC CALIFORNIA
RE:
RANCHO SANTA FE RD(MELR0SE TO LACOSTA MEADOWS DRIVE)
WI Sr:358321 .Aerial-to-Underground-<'onversion-Agreement_( Rille..? I 4 j(3 )~~i\pplicani_const~ucts_lJSS).
Revised 3/23/04
TABLE OF CONTENTS
I . DEFINITIONS ................................................................................................................... 1
I1 . RECITALS ......................................................................................................................... 1
I11 . SPECIFIC PROVISIONS ................................................................................................. 2
A .
B .
C .
D
E .
F .
G .
H .
I .
J .
K .
L .
M .
N .
0 .
P .
Q .
R .
Tariff ........................................................................................................................ 2
Construction ............................................................................................................. 2
Term ......................................................................................................................... 3 -
Inspection and Acceptance ....................................................................................... 3
Placement of Facilities ............................................................................................. 4
Payment .................................................................................................................... 4
Cancellation. Modification or Deferment ................................................................ 4
...
Indemnity; Limitation of Liability ........................................................................... 4
Insurance .................................................................................................................. 5
Warranty ................................................................................................................... 6
Title .......................................................................................................................... 7
Liens ......................................................................................................................... 7
Licenses and Easements ........................................................................................... 7
Performance ............................................................................................................. 7
Damage to Facilities ................................................................................................. 7
Tax Liability ............................................................................................................. 8
Force Mai eure .......................................................................................................... 8
Complaince With Laws ............................................................................................ 8
...
IV . GENERAL PROVISIONS ..................................................................................................... 8
A . Assimment .............................................................................................................. 8
B . Binding Effect .......................................................................................................... 8
C . Termination .............................................................................................................. 9 ..
WEST:35832 1 .Aenal-t o-Under !:I ound ~Conversion~Agreement~(RuIe~32(A)(3)~Applicant~construc ts-USS) .
Re\ ised 3/24/04
D. Entire Agreement. ................................................................................................... .9
E. Independent Contractor. .......................................................................................... .9
F. Jurisdiction. ............................................................................................................. .9
G. Notices. .................................................................................................................... 9
H. Waiver and Amendment. ....................................................................................... 10
I. Attorneys' Fees ....................................................................................................... 10
Exhibit A.. .................................................... Executive Orders and Associated Regulations
..
WEST:35832 I Aerial-to-Underground-( unversinn _Agreement-( RuIe-32(A)(3)-Applicanl_constructs~_USS)
THIS AGREEMENT (“Agreement”) is between CITY OF CARLSBAD, a CALIFORNIA
corporation (“Applicant”), and PACIFIC BELL TELEPHONE COMPANY, a California
corporation, dba SBC California (“SBC”), 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)(3).
B. The term “Underground Supporting Structure” (hereinafter “USS”) includes, but
is 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 idodalong RANCH
(METXOSE TO LA COSTA WADOWS DRIVE] where the undergrounding of
existing aerial facilities is to take place.
k FE ROAD
F. The term “Project” means all of the wsrk required to underground existing aerial
facilities within the District.
G. The term “CPUC” refers to the California Public Utilities Commission.
11. RECITALS.
A. Applicant has asked SBC to replace its existing aerial communication facilities
within the District with underground communication facilities.
B. To facilitate this request, Applicant is willing to construct the USS along the
public way and upon utility rights of way to SBC and thereafter transfer
ownership of it to SBC.
C. SBC is willing to underground its existing aerial communication facilities within
the District, subject to the terms and conditions of this Agreement.
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WES r 358321 -AeriaI_to_Underground_Conversion_Agreement_(Rule_32(A )(3 ) Applicant _constructs-LfSS)
In consideration of the above, the Parties agree as follows:
111. SPECIFIC PROVISIONS.
A. Tariff.
The Project will be conducted in accordance with the Tariff.
B. Construction.
1. Within sixty (60) days of receipt of a copy of this Agreement that has been
executed by Applicant and the advance payments required by Section 111
(F), SBC shall provide to Applicant detailed plans and specifications for
the Trenching and construction of the USS.
2. Applicant shall be responsible for Trenching (including sand shading,
backfilling, and compaction) and the construction and installation of the
USS, which shall be in accordance with SBC's plans and specifications.
Accordingly, Applicant shall, at Applicant's expense, provide all labor and
material necessary to construct the USS, including the conduit material
and manholes. Conduit material includes: cast steel manhole frames and
covers, precast concrete conduit, plastic conduit - type C; fiber cement
conduit- type C; steel pipe of equivalent standard heavy-wall duct material
acceptable to SBC, and all associated castings, bends, fittings, and unions.
APPLICANT SHALL NOT DEVIATE FROM SBC'S TRENCH
SPECIFICATIONS WITHOUT SBC'S PRIOR WRITTEN
CONSENT.
3. Trenching and construction and installation of the USS shall conform to
the construction specifications of the City or County that has jurisdiction
over the Project.
4. Within fifteen (1 5) days of completion of the USS, Applicant shall, in
SBC's presence, prove the integrity of the installed duct structure by
pulling a mandrill through each conduit section between the
manholes/splice boxes.
5. Applicant shall provide to SBC final footages of conduit sections on an "as
built" drawing prior to SBC's conversion of the aerial communication
facilities.
6. Applicant shall obtain all permits necessary for excavation from the public
agencdies) that have jurisdiction over the Project.
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Revised 3/24/04
W EST:35832 1 .-Aerial-to-Underground-Conversion_Agreement-( Ra I ie-32(A)(3)-Applicant-constructs-USS)
7. Applicant shall require all affected property owners served by the aerial
facilities to be replaced within the District to provide and maintain the
USS on their property.
If, during the installation or construction of communications facilities,
SBC employees, subcontractors, or agents encounter Hazardous
Substance(s) that may be disturbed by SBC's activities:
8.
a. SBC shall give prompt verbal and written notice of the discovery
of the Hazardous Substance(s) to Applicant;
b. SBC shall suspend performance under this Agreement until (1)
containment and removal of the Hazardous Substance(s) have been
completed and approved by the appropriate governmental
agency(ies) if such approval is required or approved by SBC, if
governmental agency(ies) approval is not required; or (2) Applicant
reasonably demonstrates that the Hazardous Substance will not be
disturbed by SBC's activities;
c. SBC's performance of its obligations under this Agreement is
extended for the amount of time that it takes to complete
containmenthemoval of the Hazardous Substance(s); and,
d. If Applicant elects not to remove/contain the Hazardous
Substance(s), SBC 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 SBC of its decision
not to remove/contain the Hazardous Substance(s). If SBC
terminates this Agreement in accordance with this paragraph,
Applicant shall reimburse SBC for the costs SBC incurred prior to
the effective date of termination.
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. Inspection and Acceptance.
1. An SBC Inspector will be provided at the job site at Applicant's cost
during the construction phase of the Project to ensure that all Trenching
activities and placement of conduit and manholes/splice boxes are in
accordance with SBC's plans and specification. Applicant shall notify
Pase3 of 11)
Revised 3/24. I 4
WEST.35832 1 .-Aerial-to_Underground_Conversion ', Ireement-( Rule-32(A)(3)-Appl1cant-constructs-USS)
SBC’s Construction Coordinator on 760-489-3063 forty-eight (48) hours in
advance of the start of construction to coordinate the inspection activities.
2. SBC shall have the right to inspect and accept the USS prior to placing any
communication facilities therein. When SBC accepts the USS, it shall
prepare, execute, and provide to Applicant a Certificate of Acceptance.
E. Placement of Facilities.
SBC will place all cables, wires and associated equipment for the conversion of
aerial communication facilities to underground after the completion and
acceptance of the USS. SBC and any other USS occupant shall jointly determine
the dates and sequence of construction of each of their respective facilities in the
USS. Pursuant to the notice requirements in Section N(G) Applicant shall
provide fifteen (1 5) working days advance notice to SBC prior to the start of
Trenching to ensure SBC has adequate time to order materials and coordinate the
placement of its facilities.
F. Payment.
Within thirty (30) days of execution of this Agreement by Applicant,
estimated net salvage value of the replaced aerial communication facilities.
If applicable, Applicant shall also pay to SBC a tax component of $g& for Federal and State Income Tax in accordance with CPUC
decision 87-09-026. These amounts are valid for only sixty (60) days
and are therefore subject to change after JULY 01,2005, (i) if
Applicant has not signed this Agreement by that date; and (ii) if
Applicant has not completed construction within 120 days of that
date.
G. Cancellation, Modification or Deferment.
If Applicant cancels, modifies or defers its request for line extension and/or
service connection facilities within the District, Applicant shall pay any and all
charges incurred by SBC, in accordance with the Tariff.
H. Indemnity; Limitation of Liability.
1. Applicant shall indemnify, defend at SBC’s request, and hold harmless
SBC 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
Page 4 of IO
licvised 3124104
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
Indemni tees.
2. SBC shall notify Applicant within a reasonable time of any written claims
or demand against SBC for which Applicant is responsible under this
section. Applicant shall also (a) keep SBC fully informed as to the
progress of such defense, and (b) give SBC, at its own expense, an
opportunity to participate with Applicant in the defense or settlement of
such claims, demand, lawsuits or other legal proceedings.
3. These indemnities shall survive the termination or cancellation of this
Agreement or any provision to the contrary herein.
4. IN NO EVENT WILL SBC BE LIABLE TO APPLICANT FOR
INCIDENTAL, SPECIAL, INDTRECT, 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 shall maintain, at all times during the term of this
Agreement, the following minimum insurance coverages and I'imits and any
additional insurance andlor 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 $100,000 for Bodily Injury-
each accident, $500,000 for Bodily Injury by disease-policy limits and
$100,000 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 sub-limit
for all bodily injury or property damage incurred in any one occurrence;
Page 5 of 10
Revised 3/24/04
$1,000,000 each occurrence sub-limit for Personal Injury and
Advertising; $2,000,000 Products/Completed Operations aggregate limit,
with a $1,000,000 each occurrence sub-limit for ProductsKompleted
Operations.
SBC 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. SBC requires that companies affording insurance coverage have a rating
of B+ or better and a Financial Size Category rating of VU or better, as
rated in the A.M. Best Key Rating Guide for Property and Casualty
Insurance Companies.
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 MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER
PRIOR TO CANCELLATION OR A MATERIAL
CHANGE TO POLICY DESCRIBED AE~OVE.~~
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 for a period of two (2) years following SBC’s
acceptance of the USS that all work and materials furnished under this
Agreement:
a. conform in all respects to the requirements of this Agreement;
b. are adequate for the purposes for which they are intended; and
Page 6 of 10
Revised 3/24/04
WEST.3583 I I 2erial-to-Underground_( onvei sion-Agreement_(Rule_32(A)(3 ). Applicant _CI bn\iructs-llSS)
2.
3.
4.
K. Title.
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.
Applicant warrants that all work it performs shall be performed by
qualified personnel promptly and with diligence to SBC’s reasonable
satisfaction, and that all work and materials shall be subject to all statutory
and express or implied warranties.
Except as disclosed to and acknowledged by SBC in writing, Applicant is
not aware of the presence of any Hazardous Substance at the locations in
the District where SBC will be installing its underground facilities.
These warranties shall survive inspection, acceptance, termination and
payment.
Upon the inspection and acceptance in writing of the USS by SBC, title to the
USS placed for SBC shall vest in SBC, provided that such is free of all liens and
encumbrances.
L. Liens.
Applicant, 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 SBC to Applicant to do so, SBC 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 written notice from
SBC, reimburse SBC for any such claim paid by it.
M. Licenses and Easements.
Prior to construction of the Project, Applicant shall hrnish SBC with any and all
licenses and grants of easements that are necessary for the construction,
installation, and maintenance of SBC’s underground facilities.
N. 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, SBC may
elect, by written notice to Applicant, to perform the work at Applicant’s sole risk
and expense and Applicant shall pay to SBC upon demand SBC’s actual costs for
performing the work.
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Revised 3/24/04
U FST 35832 1 .-Aerial_to_Underground_Conversion_Agree~nt-(Rule_32(A I( \oplicant_constructs_USS)
0. Damage to Facilities.
Applicant, its employees, agents and contractors shall exercise special precaution
and care to avoid causing damage to SBC’s facilities in performing work under
the Project. Applicant shall assume responsibility for any and all losses, costs or
expenses arising out of, caused by, or in any way connected with such damages,
including consequential damages. Applicant shall immediately report the
occurrence of any such damage to SBC. Applicant shall, on demand, reimburse
SBC for the entire expense incurred in replacing or repairing the damage.
P. Tax Liability.
Applicant shall pay and hold SBC harmless from and against, all penalties,
interest, taxes or other charges that are levied or assessed against Applicant.
Q. . Force Majeure.
SBC 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, 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, SBC 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 SBC for the incremental actual costs of such efforts.
R. Compliance with Laws.
Applicant shall comply with all applicable federal, state, county, and local
statutes, laws, ordinances, regulations, and codes, including the Executive Orders
and regulations that are attached to this Agreement as Exhibit A. As used in
Exhibit A, “Contractor” means Applicant.
IV. GENERAL PROVISIONS.
A. Assiment.
Applicant shall not wholly or partially assign this Agreement without the prior
written consent of SBC.
B. Binding Effect.
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WEST.35832 1 -Aerial-to-Underground-Conversion-Agreement-( Rule 32(A)( 3)_App~icant_construct~_USS)
This Agreement shall be for the benefit of and is binding upon the respective
successors and assigns of the parties.
C. Termination.
This Agreement automatically terminates upon completion and acceptance by
SBC of the USS. In the event of any material default or breach of this Agreement
by Applicant, in addition to all other rights and remedies that SBC may have at
law or in equity, SBC may terminate this Agreement by giving thirty (30) days
prior written notice of termination. The notice shall specifL 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, SBC shall not be liable to Applicant or any other person or entity
for any losses, damages or claims which may arise as a result of termination.
Applicant shall pay to SBC all costs and expenses incurred by SBC 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, which may have accrued or which
may be accruing or which arises out of any claim that may have accrued or may be
accruing at the time of termination.
D. Entire Agreement.
This Agreement and the attached Exhibit, which is incorporated herein, constitute
the entire Agreement between the parties with respect to the subject matter. All
prior agreements, representations, statements, negotiations and understandings are
superseded.
E. Independent Contractor.
Applicant, 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 SBC.
F. 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 and is
also subject to changes or modifications as the CPUC may order.
Page 9 of 10
Revised 3/24/04
G. Notices.
PACIFIC BELL TELEPHONE COMPANY
1
All notices and other communications hereunder shall be in writing, addressed as
follows, and deemed given when delivered in person, delivered to an agent such
as an overnight or similar delivery service, or three days after deposited in the
United States mail, postage prepaid.
APPLICANT SBC California
4220
CA 92104
H. 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 both
parties.
I. Attorney's 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 attorney's fees in an amount to be determined by a court or
a tribunal of competent jurisdiction.
The duly authorized representatives of Applicant and SBC have executed this Agreement by
affixing their signatures on the dates indicated below.
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WEST:35832 I .-Aerial_ to-llnderground ( 'onvzrsion_Agreement_(RuIc 32(A)(3)-Applicant-constructs-l~SS)
Exhibit A
Executive Orders and Associated Regulations
SBC Califonhia and SBC Nevada, as conmn carriers of telecornmunicahons services, engage in work as contractors for various departnlents and agencies of the United
States Government. Also, certain facilities nuy be constructed pursuant to federally assisted construction propnls. Because 01' the roregoing, work under this contract
nuy be subject to the provisions ofcertain 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 lo that extent, Contractor ames 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 followng:
I. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS.
In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F R. 5 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 I 1246, dated September 24, 1965. and 41 C.F.R. 9 60-1.8, Contractor certifies that it does not and will not maintain or provide for its employees any facilities segregated 011 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 entertainnlent 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 Afimtive Action Plan as required by 41 C.F.R. 5 60-1.40.
4. CERTIFICATION OF FILING.
Contractor certifies that it will file annually, on or before the 3Id ofMarch, complete and accurate reports on Standard Form I00 (EO-I) or such forms as may be
promulgated in'its place as required by 41 C.F.R. 9 60-1.7.
5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA.
In accordance with Executive Order 11 701, dated January 24, 1973, and 41 C.F.R. 60-250.20, the parties incorporate herein by tliis 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 I 1758, dated January 15,1974, and 41 C.F.R. J 60-741.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be nude a part of Government contracts and subcontracts.
7. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS CONCERNS.
48 C.F.R., Ch. I, 5 19.740(4) and 19.708(a) require that the following clause is included
Utilizaation 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 tern 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 aith eflicient 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 conpliance 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:
businesses, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals. and
The Contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Amencans. Native Americans, Asian-SBC
Americans, Asian-Indian Americans and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section B(a) of the Small
Business Act.
snull business concern owned and controlled by socially and economically disadvantaged individuals.
(1) Which is at least 5 1 percent owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned
(2) Whose management and daily business operations are controlled by one or more of such individuals.
(d) Contractors acting in good faith may rely on Written representations by their subcontractors regarding their statu as either a small business concern or a
Small Business and Small Disadvonfaged 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 u 1111 a small business and small
disadvantaged business subcontracting plan, which shall be included in and made a part of this contract. The parties incorporate lherein by this reference the regulations
and contract clauses required by 48 C.F.R.. Ch. I. 99 19.704(4) and 19.708(%) to be made a part of Government contracts and subcontracts.
8. WOMEN-OWNED SMALL BLISINESSES.
As prescribed in 48 C.F.R., Ch. I, 5 19.902, the following clause is included m solicitations and contracts when the contract aiiximf IS expected to be over the small
purchase threshold, unless (a) the contract is to be perfornwd entirely outside the United States, its possessions, Puerto Rico. and !lie Trust Territory of the Pacific
Islands, or (b) a personal services contract is contenplate:
who also control and operate the business.
(a) "Wonun-owned small businesses," as used in this clause, nwans businesses that are at least 51 percent owned by wontell who are United States citizens and
"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 lo award contrxts to concerns that agree to perform substantially in lahor wqks areas (LSA's) when this can be
donc consistent with the efficient performance of the contract and at prices 110 higher than are obtaioable elsewhere. The Contractor agrees to use its best efforts to
place subcoiitracts in accordance with this policy.
Concerns and Snlall Disadvantaged Business Concems. the Contractor shall obsene the following order ofpreference in awarding subcontracts: (I) small business
concerns that are LSA concerns, (2) other small business concerns. and (3) other LSA concerns.
654. Subpart A. as ai1 area of concentrated unenploynlent or underentploynwnt or an area of labor surplus.
areas. Perfomlance 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.
(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
(d) Definitions. "Labor surplus area." as used in this clause. means J geographical area identified by the Department of Labor iii accordance with 20 C.F.R. 5
"Labor surplus area concern," as used in this clause, means a conceni that together with its first-tier subcontractors will perforni substantially in labor surplus
Lnbor 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 --
(I) Designate a liaison officer who will (i) maintain liaison with authorized representatives of the Government on LSA matters. (ii) supenise 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 nlake-or-buy decisions;
(3) Ensure that LSA concerns have an equitable opporlunity to compete for subcontracts, particularly by arranging solicitations, time for the prepamtion of
(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 aRer the award of this contract, or for such longer period as may be required by any other clause of
this contract or by applicable law or regulations.
(c) 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.
offers. quantities, specifications. and delivery schedules so as to facilitate the participation of LSA concerns;
The Contractor further agrees to insert in any related subcontract that may exceed $500.000 and that contains the Utilization of Labor Surplus Area
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