HomeMy WebLinkAboutBlackburn Consulting - Airports Testing and Inspections - 2021
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective the 21st day of April,
2021, by and between the CITY OF FRESNO, a California municipal corporation
(hereinafter referred to as "CITY"), and Blackburn Consulting, a California Corporation
(hereinafter referred to as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional quality assurance testing and
inspection services for unspecified Fresno Yosemite International Airport (FAT) and
Fresno Chandler Executive Airport (FCH), Airport Improvement Program (AIP) funded
and Non-AIP funded capital projects, hereinafter referred to as the “Project;” and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as
a geotechnical engineering, environmental consulting, testing and inspection firm and
hereby represents that it desires to and is professionally and legally capable of
performing the services called for by this Agreement; and
WHEREAS, this Agreement sets forth the terms and conditions under which
CONSULTANT shall provide professional services, to be paid with Airport funds which
may be reimbursed with Federal Aviation Administration funds as they are made
available; and
WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-
19; and
WHEREAS, this Agreement will be administered for CITY by its Director of
Aviation (hereinafter referred to as "Director") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. CONSULTANT shall perform to the satisfaction of
CITY the services described in Exhibit A, including all work incidental to, or necessary
to perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance . This Agreement shall be
effective from the date first set forth above and shall continue in full force and effect
through the earlier of complete rendition of the services hereunder or April 30, 2024,
subject to any earlier termination in accordance with this Agreement. The services of
CONSULTANT, described in Exhibit A, are to commence upon CITY’S issuance of a
written “Task Order”. Work shall be undertaken and completed in a sequence assuring
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expeditious completion, but in any event, all such services shall be completed prior to
expiration of this Agreement and in accordance with any performance schedule set forth
in the Task Order(s).
3. Compensation.
(a) CONSULTANT’S sole compensation for satisfactory performance
of all services required or rendered pursuant to this Agreement shall be paid in
accordance with Exhibit A for an amount not to exceed Fifty Thousand Dollars and
Zero Cents ($50,000.00)].
(b) Detailed statements shall be rendered monthly and will be payable
in the normal course of CITY business.
(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to CONSULTANT’S compensation. Any
change in the scope of services must be made by written amendment to the Agreement
signed by an authorized representative for each party. CONSULTANT shall not be
entitled to any additional compensation if services are performed prior to a signed
written amendment.
4. Termination, Remedies and Force Majeure.
(a) This Agreement shall terminate without any liability of CITY to
CONSULTANT upon the earlier of: (i) CONSULTANT’S filing for protection under the
federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced
by a third party against CONSULTANT; (ii) 7 calendar days prior written notice with or
without cause by CITY to CONSULTANT; (iii) CITY’S non-appropriation of funds
sufficient to meet its obligations hereunder during any CITY fiscal year of this
Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any
and all of its subcontractors to cease work; and (iii) return to CITY any and all unearned
payments and all properties and materials in the possession of CONSULTANT that are
owned by CITY. Subject to the terms of this Agreement, CONSULTANT shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. CONSULTANT shall not be paid for any work or services performed or
costs incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of CONSULTANT to
satisfactorily perform in accordance with the terms of this Agreement, CITY may
withhold an amount that would otherwise be payable as an offset to, but not in excess
of, CITY’S damages caused by such failure. In no event shall any payment by CITY
pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement
which may then exist on the part of CONSULTANT, nor shall such payment impair o r
prejudice any remedy available to CITY with respect to the breach.
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(d) Upon any breach of this Agreement by CONSULTANT, CITY may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable
law; (ii) proceed by appropriate court action to enforce the terms of the Agreement;
and/or (iii) recover all direct, indirect, consequential, economic and incidental damages
for the breach of the Agreement. If it is determined that CITY improperly terminated this
Agreement for default, such termination shall be deemed a termination for convenience.
(e) CONSULTANT shall provide CITY with adequate written
assurances of future performance, upon Director’s request, in the event CONSULTANT
fails to comply with any terms or conditions of this Agreement.
(f) CONSULTANT shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONSULTANT and without
its fault or negligence such as, acts of God or the public enemy, acts of CITY in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually
severe weather, and delays of common carriers. CONSULTANT shall notify Director in
writing as soon as it is reasonably possible after the commencement of any excusable
delay, setting forth the full particulars in connection therewith, and shall remedy such
occurrence with all reasonable dispatch, and shall promptly give written notice to
Director of the cessation of such occurrence.
5. Confidential Information, Ownership of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by
CONSULTANT pursuant to this Agreement shall not be made available to any individual
or organization by CONSULTANT without the prior written approval of CITY. During the
term of this Agreement, and thereafter, CONSULTANT shall not, without the prior
written consent of CITY, disclose to anyone any Confidential I nformation. The term
Confidential Information for the purposes of this Agreement shall include all proprietary
and confidential information of CITY, including but not limited to business plans,
marketing plans, financial information, designs, drawings, specifications, materials,
compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media.
All Confidential Information shall be and remain confidential and proprietary in CITY.
(b) Any and all original sketches, pencil tracings of working drawings,
plans, computations, specifications, computer disk files, writings and other documents
prepared or provided by CONSULTANT pursuant to this Agreement are the p roperty of
CITY at the time of preparation and shall be turned over to CITY upon expiration or
termination of the Agreement or default by CONSULTANT. CONSULTANT grants CITY
a copyright license to use such drawings and writings. CONSULTANT shall not permi t
the reproduction or use thereof by any other person except as otherwise expressly
provided herein. CITY may modify the design including any drawings or writings. Any
use by CITY of the aforesaid sketches, tracings, plans, computations, specifications,
computer disk files, writings and other documents in completed form as to other projects
or extensions of this Project, or in uncompleted form, without specific written verification
by CONSULTANT will be at CITY’S sole risk and without liability or legal e xposure to
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CONSULTANT. CONSULTANT may keep a copy of all drawings and specifications for
its sole and exclusive use.
(c) If CONSULTANT should subcontract all or any portion of the
services to be performed under this Agreement, CONSULTANT shall cause each
subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this
Agreement.
6. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as CONSULTANT represents to CITY that
CONSULTANT and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said profession necessary to perform the
services agreed to be done by it under this Agreement, CITY relies upon the skill of
CONSULTANT and any subcontractors to do and perform such services in a skillful
manner and CONSULTANT agrees to thus perform the services and require the same
of any subcontractors. Therefore, any accepta nce of such services by CITY shall not
operate as a release of CONSULTANT or any subcontractors from said professional
standards.
7. Indemnification. To the furthest extent allowed by law, CONSULTANT
shall indemnify, hold harmless and defend CITY and each of its officers, officials,
employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but
not limited to personal injury, death at any time and property damage), and from any
and all claims, demands and actions in law or equity (including reasonable attorney's
fees and litigation expenses) that arise out of, pertain to, or relate to the negligence,
recklessness or willful misconduct of CONSULTANT, its principals, officers, employees,
agents or volunteers in the performance of this Agreement.
If CONSULTANT should subcontract all or any portion of the services to be
performed under this Agreement, CONSULTANT shall require each subcontractor to
indemnify, hold harmless and defend CITY and each of its officers, officials, employees,
agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, CONSULTANT shall pay for
and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either
(i) admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as
may be authorized in writing by CITY'S Risk Manager or his/her designee at any time
and in his/her sole discretion. The required policies of insurance as stated in Exhibit B
shall maintain limits of liability of not less than those amounts stated therein. However,
the insurance limits available to CITY, its officers, officials, employees, agents and
volunteers as additional insureds, shall be the greater of the minimum limit s specified
therein or the full limit of any insurance proceeds to the named insured.
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(b) If at any time during the life of the Agreement or any extension,
CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to CONSULTANT
shall be withheld until notice is received by CITY that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to CITY. Any failure to maintain the required insurance shall be
sufficient cause for CITY to terminate this Agreement. No action taken by CITY
pursuant to this section shall in any way relieve CONSULTANT of its responsibilities
under this Agreement. The phrase “fail to maintain any required insurance” shall
include, without limitation, notification received by CITY that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that the insurer
is insolvent.
(c) The fact that insurance is obtained by CONSULTANT shall not be
deemed to release or diminish the liability of CONSULTANT, including, without
limitation, liability under the indemnity provisions of this Agreement. The duty to
indemnify CITY shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by CONSULTANT. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liability of
CONSULTANT, its principals, officers, agents, employees, persons under the
supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-
consultants, subcontractors, or anyone employed directly or indirectly by any of them.
(d) If CONSULTANT should subcontract all or any portion of the
services to be performed under this Agreement, CONSULTANT shall require each
subcontractor/sub-consultant to provide insurance protection, as an additional insured,
to the CITY and each of its officers, officials, employees, agents and volunteers in
accordance with the terms of this section, except that any required certificates and
applicable endorsements shall be on file with CONSULTANT and CITY prior to the
commencement of any services by the subcontractor. CONSULTANT and any
subcontractor/sub-consultant shall establish additional insured status for CI TY, its
officers, officials, employees, agents and volunteers by using Insurance Service Office
(ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an
executed manuscript company endorsement providing additional insured status as
broad as that contained in ISO Form CG 20 10 11 85.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to CITY’S execution of this Agreement, CONSULTANT shall
complete a City of Fresno conflict of interest disclosure statement in the form as set
forth in Exhibit C. During the term of this Agreement, CONSULTANT shall have the
obligation and duty to immediately notify CITY in writing of any change to the
information provided by CONSULTANT in such statement.
(b) CONSULTANT shall comply, and require its subcontractors to
comply, with all applicable (i) professional canons and requirements governing
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avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of
interest laws and regulations including, without limitation, California Government Code
Section 1090 et. seq., the California Political Reform Act (California Government Code
Section 87100 et. seq.), the regulations of the Fair Political Practices Commission
concerning disclosure and disqualification (2 California Code of Regulations Section
18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to
Compete). At any time, upon written request of CITY, CONSULTANT shall provide a
written opinion of its legal counsel and that of any subcontractor that, after a due diligent
inquiry, CONSULTANT and the respective subcontractor(s) are in full compliance with
all laws and regulations. CONSULTANT shall take, and require its subcontractors to
take, reasonable steps to avoid any appearance of a conflict of interest. Upon
discovery of any facts giving rise to the appearance of a conflict of interest,
CONSULTANT shall immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSULTANT shall not employ or retain the services of any person while such person
either is employed by CITY or is a member of any CITY council, commission, board,
committee, or similar CITY body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) CONSULTANT represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or
procure this Agreement or any rights/benefits hereunder.
(e) Neither CONSULTANT, nor any of CONSULTANT’S
subcontractors performing any services on this Project, shall bid for, assist anyone in
the preparation of a bid for, or perform any services pursuant to, any other contract in
connection with this Project. CONSULTANT and any of its subcontractors shall have no
interest, direct or indirect, in any other contract with a third party in connection with this
Project unless such interest is in accordance with all applicable law and fully disclosed
to and approved by the City Manager, in advance and in writing.
(f) If CONSULTANT should subcontract all or any portion of the work
to be performed or services to be provided under this Agreement, CONSULTANT shall
include the provisions of this Section 9 in each subcontract and require its
subcontractors to comply therewith.
(g) This Section 9 shall survive expiration or termination of this
Agreement.
10. Recycling Program. In the event CONSULTANT maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, CONSULTANT at its sole cost and expense
shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by CITY’S Solid Waste Management Divis ion, for each office and
facility. Literature describing CITY recycling programs is available from CITY’S Solid
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Waste Management Division and by calling City of Fresno Recycling Hotline at (559)
621-1111.
(b) Immediately contact CITY’S Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such Division in
their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of CITY’S Solid
Waste Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. General Terms and Federal Assurances.
(a) Except as otherwise provided by law, all notices expressly required
of CITY within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Director or his/her designee.
(b) Records of CONSULTANT’S expenses pertaining to the Project
shall be kept on a generally recognized accounting basis and shall be available to CITY
or its authorized representatives upon request during regular business hours throughout
the life of this Agreement and for a period of three years after final payment or, if longer,
for any period required by law. In addition, all books, documents, papers, and records
of CONSULTANT pertaining to the Project shall be available for the purpose of making
audits, examinations, excerpts, and transcriptions for the same period of time. If any
litigation, claim, negotiations, audit or other action is commenced before the expiration
of said time period, all records shall be retained and made available to CITY until such
action is resolved, or until the end of said time period whichever shall later occur. If
CONSULTANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSULTANT shall cause each subcontractor to also comply
with the requirements of this paragraph. This Section 11(b) shall survive expiration or
termination of this Agreement.
(c) Prior to execution of this Agreement by CITY, CONSULTANT shall
have provided evidence to CITY that CONSULTANT is licensed to perform the services
called for by this Agreement (or that no license is required). If CONSULTANT should
subcontract all or any portion of the work or services to be performed under this
Agreement, CONSULTANT shall require each subcontractor to provide evidence to
CITY that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
(d) CITY will carry out applicable federal requirements in the
administration of this Agreement. Notwithstanding Section 25 herein, CONSULTANT
agrees to comply with all applicable federal assurances identified in Exhibit D and
require that each subcontract include the same assurances by each of its
subcontractors.
12. Nondiscrimination. To the extent required by controlling federal, state and
local law, CONSULTANT shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race,
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religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, CONSULTANT agrees as follows:
(a) CONSULTANT will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) CONSULTANT will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, m edical condition, marital status, sex,
age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam
era. CONSULTANT shall ensure that applicants are employed, and the employees are
treated during employment, without regard to their race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. Such requirement shall apply to CONSULTANT’S employment practices
including, but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship.
CONSULTANT agrees to post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provision of this nondiscrimination
clause.
(c) CONSULTANT will, in all solicitations or advertisements for
employees placed by or on behalf of CONSULTANT in pursuit hereof, state that all
qualified applicants will receive consideration for employment without regard to race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era.
(d) CONSULTANT will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers' representatives of
CONSULTANT’S commitment under this section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) If CONSULTANT should subcontract all or any portion of the
services to be performed under this Agreement, CONSULTANT shall cause each
subcontractor to also comply with the requirements of this Section 12.
13. Independent Contractor.
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(a) In the furnishing of the services provided for herein, CONSULTANT
is acting solely as an independent contractor. Neither CONSULTANT, nor any of its
officers, agents or employees shall be deemed an officer, agent, employee, joint
venturer, partner or associate of CITY for any purpose. CITY shall have no right to
control or supervise or direct the manner or method by which CONSULTANT shall
perform its work and functions. However, CITY shall retain the right to administer this
Agreement so as to verify that CONSULTANT is performing its obligations in
accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between CONSULTANT and CITY. CONSULTANT shall have no authority to bind
CITY absent CITY’S express written consent. Except to the extent otherwise provided
in this Agreement, CONSULTANT shall bear its own costs and expenses in pursuit
thereof.
(c) Because of its status as an independent contractor, CONSULTANT
and its officers, agents and employees shall have absolutely no right to employment
rights and benefits available to CITY employees. CONSULTANT shall be solely liable
and responsible for all payroll and tax withholding a nd for providing to, or on behalf of,
its employees all employee benefits including, without limitation, health, welfare and
retirement benefits. In addition, together with its other obligations under this
Agreement, CONSULTANT shall be solely responsible , indemnify, defend and save
CITY harmless from all matters relating to employment and tax withholding for and
payment of CONSULTANT'S employees, including, without limitation, (i) compliance
with Social Security and unemployment insurance withholding, payment of workers’
compensation benefits, and all other laws and regulations governing matters of
employee withholding, taxes and payment; and (ii) any claim of right or interest in CITY
employment benefits, entitlements, programs and/or funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co -employee rights
or other theory. It is acknowledged that during the term of this Agreement,
CONSULTANT may be providing services to others unrelated to CITY or to this
Agreement.
14. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as
the parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by
all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
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16. Assignment.
(a) This Agreement is personal to CONSULTANT and there shall be no
assignment by CONSULTANT of its rights or obligations under this Agreement without
the prior written approval of the City Manager or his/her designee. Any attempted
assignment by CONSULTANT, its successors or assigns, shall be null and void unless
approved in writing by the City Manager or his/her designee.
(b) CONSULTANT hereby agrees not to assign the payment of any
monies due CONSULTANT from CITY under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all
monies due CONSULTANT directly to CONSULTANT.
17. Compliance With Law. In providing the services required under this
Agreement, CONSULTANT shall at all times comply with all applicable laws of the
United States, the State of California and CITY, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory agencie s,
now in force and as they may be enacted, issued, or amended during the term of this
Agreement.
18. Waiver. The waiver by either party of a breach by the other of any
provision of this Agreement shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or a different provision of this Agreement. No
provisions of this Agreement may be waived unless in writing and signed by all parties
to this Agreement. Waiver of any one provision herein shall not be deemed to be a
waiver of any other provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
excluding, however, any conflict of laws rule which would appl y the law of another
jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
20. Headings. The section headings in this Agreement are for convenience
and reference only and shall not be construed or held in any way to explain, modify or
add to the interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final
form is the result of the combined efforts of the parties and that, should any provision of
this Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either party, but rather by
construing the terms in accordance with their generally accepted meaning.
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23. Attorney's Fees. If either party is required to commence any proceeding
or legal action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from the
other party its reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the Exhibit or Attachment. Furthermore, any terms or conditions
contained within any Exhibit or Attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or
flow to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both CITY and CONSULTANT.
/ / /
/ / /
/ / /
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FYI-S 19.4 FedFund On-Call Services 09-25-19
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:
Kevin R. Meikle, Director of Aviation
Airports Department
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By:
Deputy
No signature of City Attorney required.
Standard Document #FYI-S 19.4 has
been used without modification, as
certified by the undersigned.
By:
Danny Tohme
Capital Development Specialist
Airports Department
REVIEWED BY:
Richard Madrigal, Airports Project
Supervisor
Airports Department
Addresses:
CITY:
City of Fresno
Attention: Danny Tohme,
Capital Development Specialist
4995 E.Clinton Way
Fresno, CA 93727
Phone: (559) 621-4534
FAX: (559) 251-4825
Blackburn Consulting,
a California Corporation
By:
Name:
Title:
(if corporation or LLC, Board
Chair, Pres. or Vice Pres.)
By:
Name:
Title:
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License:
Number:
Name:
Date of Issuance:
CONSULTANT:
Blackburn Consulting
Attention: Robert Sandquist,
Project Manager
4186 W.Swift Ave. Suite 107
Fresno, CA 93722
Phone: 559-438-8411
FAX: 916-375-8709
Attachments:
1. Exhibit A – Scope of Services
2. Exhibit B – Insurance Requirements
3. Exhibit C – Conflict of Interest Disclosure Form
4. Exhibit D – Assurances
DocuSign Envelope ID: F1D302D4-E812-416B-9CD1-20E3A2B678F4
Robert Lokteff
Robert Lokteff
1-23-2003
GE 2589
Vice President
Wendy Supinger
CFO
FYI-S 19.4 FedFund On-Call Services 04-05-17
Page 1 of 1
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno (“CITY”)
and Blackburn Consulting (“CONSULTANT”)
Unspecified FAT and FCH AIP and Non-AIP Funded Capital Projects
PROJECT TITLE
Consultant shall provide "on-demand" services as set forth in Attachment No. 1 to this
Exhibit, subject to the terms set forth in the Agreement and below. Such services shall
be provided as directed by Task Order(s) signed by the Director of Aviation or his/her
authorized designee.
1. CONSULTANT shall commence the services described in each fully
executed Task Order issued under this Agreement, as of the dates(s) and
as to the Projects(s) identified, in accordance with the specific
performance schedules(s) and budget information contained therein.
2. CONSULTANT’S compensation shall be as identified in fully executed
Task Order(s) issued under this agreement and shall not exceed the
amount(s) specified therein.
3. CONSULTANT’S total compensation under this Agreement including all
executed Task Order(s) thereunder shall in no event exceed the amount
identified in Section 3 of the body of the Agreement.
4. CONSULTANT acknowledges and agrees that it shall provide services
hereunder solely on a non-exclusive basis, and only upon issuance of fully
executed Task Order(s). CITY is not obligated to purchase from
CONSULANT any amount of Services. CITY is free to obtain the services
from source(s) other than CONSULTANT and/or CITY may itself provide
such services.
///
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ATTACHMENT NO. 1
TO EXHIBIT “A” TO ON-CALL SERVICES AGREEMENT
BETWEEN CITY OF FRESNO AND BLACKBURN CONSULTING
Master FAA Grant Element
[GRANT INFORMATION]
Master Airport Project
Project: [AC00XXX] Fund: [XXXXX] Org: [XXXXXX] Activity: [XXXX]
Resource:[XXXX]
Confirmation of Funds:
Finance Signature Date
TASK ORDER # [XX-XX]
Pursuant to the [Month, XX, XXXX] Agreement with the City of Fresno, [Consultant], is
hereby directed to perform Project Services as follows:
Work Description: [Work Description]
Services (including all deliverables) required: [Deliverables]
Date Services (including all deliverables) are to commence: [Month, XX, XXXX]
Date Services (including all deliverables) are to be completed: [Month, XX, XXXX]
Project Budget Limitations: Not to exceed $ [XXXX.XX]
Please reference Task Order No. [XX-XX] and Purchase Order No. [XXXXXXXX] on
all invoices submitted to CITY under this Task Order.
By: ____________________________ Date:_____________
Director of Aviation or Designee
____________________________ Date:_____________
Consultant
Reviewed by:
____________________________ Date:_____________
Project Manager
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Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno (“CITY”)
and Blackburn Consulting (“CONSULTANT”)
Unspecified FAT and FCH AIP and Non-AIP Funded Capital Projects
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage
for “bodily injury,” “property damage” and “personal and advertising injury”
with coverage for premises and operations (including the use of owned
and non-owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations
under the Agreement) with limits of liability not less than those set forth
under “Minimum Limits of Insurance.”
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance
or use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall
provide coverage for all owned, hired, and non -owned automobiles or
other licensed vehicles (Code 1- Any Auto). If personal automobile
coverage is used, the CITY, its officers, officials, employees, agents, and
volunteers are to be listed as additional insureds.
3. Workers’ Compensation insurance as required by the State of California
and Employer’s Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONSULTANT’s profession. Architect’s and engineer’s coverage is to be
endorsed to include contractual liability.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits
of liability of not less than those set forth below. However, insurance limits available to
CITY, its officers, officials, employees, agents, and volunteers as additional insureds,
shall be the greater of the minimum limits specified herein or the full limit of any
insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
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(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS’ COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER’S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to
meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form”
and afford no less coverage than the primary insurance policy(ies). In addition, such
Umbrella or Excess insurance policy(ies) shall also apply on a primary and non -
contributory basis for the benefit of the CITY, its officers, officials, employees, agents,
and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles conta ined in any
insurance policy(ies) required herein and CONSULTANT shall also be responsible for
payment of any self -insured retentions. Any deductibles or self-insured retentions must
be declared to on the Certificate of Insurance, and approved by, the CIT Y’s Risk
Manager or designee. At the option of the CITY’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self -
insured retentions as respects CITY, its officers, officials,
employees, agents, and volunteers; or
(ii) CONSULTANT shall provide a financial guarantee, satisfactory to
CITY’s Risk Manager or designee, guaranteeing payment of losses
and related investigations, claim administration and defense
expenses. At no time shall CITY be responsible for the payment o f
any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. CITY, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. CONSULTANT shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and
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CG 20 37 10 01 or by an executed manuscript insurance company
endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of
protection afforded to CITY, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, CONSULTANT’s insurance
coverage shall be primary insurance with respect to the CITY, its officers,
officials, employees, agents, and volunteers. Any insurance or self -
insurance maintained by the CITY, its officers, officials, employees,
agents, and volunteers shall be excess of CONSULTANT’s insurance and
shall not contribute with it. CONSULTANT shall establish primary and
non-contributory status by using ISO Form CG 20 01 04 13 or by an
executed manuscript insurance company endorsement that provi des
primary and non-contributory status as broad as that contained in ISO
Form CG 20 01 04 13.
The Workers’ Compensation insurance policy is to contain, or be endorsed to contain,
the following provision: CONSULTANT and its insurer shall waive any right o f
subrogation against CITY, its officers, officials, employees, agents, and volunteers.
If the Professional Liability (Errors and Omissions) insurance policy is written on a
claims-made form:
1. The retroactive date must be shown, and must be before the effective date
of the Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement work or
termination of the Agreement, whichever occurs first, or, in the alternative,
the policy shall be endorsed to provide not less than a five year discovery
period.
3. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effe ctive date
of the Agreement or the commencement of work by CONSULTANT,
CONSULTANT must purchase “extended reporting” coverage for a
minimum of five years completion of the Agreement work or termination of
the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for
review.
5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to CITY. CONSULTANT is also responsible for providing written notice to the
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CITY under the same terms and conditions. Upon issuance by the insurer, broker, or
agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits,
CONSULTANT shall furnish CITY with a new certificate and applicable endorsements
for such policy(ies). In the event any policy is due to expire during the work to be
performed for CITY, CONSULTANT shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen calendar days
prior to the expiration date of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
The fact that insurance is obtained by CONSULTANT shall not be deemed to release or
diminish the liability of CONSULTANT, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by CONSULTANT. Approval or purchase
of any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of CONSULTANT, its principals, officers, agents, employees, persons under the
supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub -
consultants, subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTORS - If CONSULTANT subcontracts any or all of the services to be
performed under this Agreement, CONSULTANT shall require, at the discretion of the
CITY Risk Manager or designee, subcontractor(s) to enter into a separate side
agreement with the City to provide required indemnifica tion and insurance protection.
Any required side agreement(s) and associated insurance documents for the
subcontractor must be reviewed and preapproved by CITY Risk Manager or designee.
If no side agreement is required, CONSULTANT shall require and verif y that
subcontractors maintain insurance meeting all the requirements stated herein and
CONSULTANT shall ensure that CITY, its officers, officials, employees, agents, and
volunteers are additional insureds. The subcontractors' certificates and endorsement s
shall be on file with CONSULTANT, and CITY, prior to commencement of any work by
the subcontractor.
VERIFICATION OF COVERAGE
USER shall furnish CITY with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the CITY’S Risk Manager or his/her de signee prior to CITY’S
execution of the Agreement and before work commences. All non-ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of CITY, USER shall immediately furnish City with a complete
copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy
of the original policy. This requirement shall survive expiration or termination of t his
Agreement.
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Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Consultant Service Agreement between City of Fresno (“CITY”)
and Blackburn Consulting (“CONSULTANT”)
Unspecified FAT and FCH AIP and Non-AIP Funded Capital Projects
PROJECT TITLE
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?
2 Do you represent any firm, organization or person who is in litigation with
the City of Fresno?
3 Do you currently represent or perform work for any clients who do business
with the City of Fresno?
4 Are you or any of your principals, managers or professionals, owners or
investors in a business which does business with the City of Fresno, or in a
business which is in litigation with the City of Fresno?
5 Are you or any of your principals, managers or professionals, related by
blood or marriage to any City of Fresno employee who has any significant
role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any interest,
direct or indirect, in any other contract in connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
(name)
(company)
(address)
Additional page(s) attached.
(city state zip)
DocuSign Envelope ID: F1D302D4-E812-416B-9CD1-20E3A2B678F4
X
X
X
4/21/2021
X
Robert Lokteff
X
4186 W Swift Ave. Suite 107
Blackburn Consulting
X
Fresno, CA 93722
FYI-S 19.4 FedFund On-Call Services 09-25-19
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Exhibit D
ASSURANCES
Consultant Service Agreement between City of Fresno (“CITY”)
and Blackburn Consulting (“CONSULTANT”)
Unspecified FAT and FCH AIP and Non-AIP Funded Capital Projects
PROJECT TITLE
During the performance of this Agreement (hereinafter referred to as “contract” or
“contract documents”), CONSULTANT, for itself, its assignees and successors in
interest (hereinafter referred to collectively as “the contractor" or “CONTRACTOR”)
agrees as follows (hereinafter, “CITY” is referred to as “Sponsor”):
I. PROVISIONS APPLICABLE TO ALL PROFESSIONAL SERVICES
CONTRACTS
A. ACCESS TO RECORDS AND REPORTS
The contractor must maintain an acceptable cost accounting system. The contractor
agrees to provide the sponsor, the Federal Aviation Administration, and the Comptroller
General of the United States or any of their duly authorized re presentatives’ access to
any books, documents, papers, and records of the contractor which are directly
pertinent to the specific contract for the purpose of making audit, examination, excerpts
and transcriptions. The contractor agrees to maintain all book s, records and reports
required under this contract for a period of not less than three years after final payment
is made and all pending matters are closed.
B. BUY AMERICAN CERTIFICATION
The contractor agrees to comply with 49 USC § 50101, which provides that Federal
funds may not be obligated unless all steel and manufactured goods used in AIP -funded
projects are produced in the United States, unless the FAA has issued a waiver for the
product; the product is listed as an Excepted Article, Material Or Supply in Federal
Acquisition Regulation subpart 25.108; or is included in the FAA Nationwide Buy
American Waivers Issued list.
A bidder or offeror must submit the appropriate Buy America Ce rtification (below) with
all bids or offers on Airport Improvement Program (“AIP”) funded projects. Bids or offers
that are not accompanied by a completed Buy America certification must be rejected as
nonresponsive.
Type of Certification is based on Type of Project:
There are two types of Buy American certifications.
For projects for a facility, the Certificate of Compliance Based on Total Facility
(Terminal or Building Project) must be submitted.
For all other projects, the Certificate of Compliance Based on Equipment and
Materials Used on the Project (Non-building construction projects such as
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runway or roadway construction; or equipment acquisition projects) must be
submitted.
See Attachments A and B: Buy American Certifications
C. GENERAL CIVIL RIGHTS PROVISIONS
The contractor agrees that it will comply with pertinent statutes, Executive Orders and
such rules as are promulgated to ensure that no person shall, on the grounds of race,
creed, color, national origin, sex, age, or handicap be excluded from participating in any
activity conducted with or benefiting from Federal assistance.
This provision binds the contractor from the bid solicitation period through the
completion of the contract. This provision is in addition to that required of Title VI of the
Civil Rights Act of 1964.
D. CIVIL RIGHTS ACT OF 1964, TITLE VI
During the performance of this contract, the contractor, for itself, its assignees, and
successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes
consultants) will comply with the Title VI List of Pertinent
Nondiscrimination Acts And Authorities, as they may be amended from
time to time, which are herein incorporated by reference and made a part
of this contract.
2. Non-discrimination: The contractor, with regard to the work performed
by it during the contract, will not discriminate on the grounds of race, color,
or national origin in the selection and retention of subcontractors, including
procurements of materials and leases of equipment. The contractor will
not participate directly or indirectly in the discrimination prohibited by the
Nondiscrimination Acts and Authorities, including employment practices
when the contract covers any activity, project, or program set forth in
Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials
and Equipment: In all solicitations, either by competitive bidding, or
negotiation made by the contractor for work to be performed under a
subcontract, including procurements of materials, or leases of equipment,
each potential subcontractor or supplier will be notified by the contractor of
the contractor’s obligations under this contract and the Nondiscrimination
Acts And Authorities on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and
reports required by the Acts, the Regulations, and directives issued
pursuant thereto and will permit access to its books, records, accounts,
other sources of information, and its facilities as may be determined by the
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sponsor or the Federal Aviation Administration to be pertinent to ascertain
compliance with such Nondiscrimination Acts And Authorities and
instructions. Where any information required of a contractor is in the
exclusive possession of another who fails or refuses to furnish the
information, the contractor will so certify to the sponsor or the Federal
Aviation Administration, as appropriate, and will set forth what efforts it
has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s
noncompliance with the Non-discrimination provisions of this contract, the
sponsor will impose such contract sanctions as it or the Federal Aviation
Administration may determine to be appropriate, including, but not limited
to:
a. Withholding payments to the contractor under the contract until the
contractor complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in
part.
6. Incorporation of Provisions: The contractor will include the provisions
of paragraphs one through six in every subcontract, including
procurements of materials and leases of equipment, unless exempt by the
Acts, the Regulations and directives issued pursuant thereto. The
contractor will take action with respect to any subcontract or procurement
as the sponsor or the Federal Aviation Administration may direct as a
means of enforcing such provisions including sanctions for
noncompliance. Provided, that if the contractor becomes involved in, or is
threatened with litigation by a subcontractor, or supplier because of such
direction, the contractor may request the sponsor to enter into any
litigation to protect the interests of the sponsor. In addition, the contractor
may request the United States to enter into the litigation to protect the
interests of the United States.
7. Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the contractor, for itself, its
assignees, and successors in interest (hereinafter referred to as the
“contractor”) agrees to comply with the following non -discrimination
statutes and authorities; including but not limited to:
a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.,
78 stat. 252), (prohibits discrimination on the basis of race, color,
national origin);
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b. 49 CFR part 21 (Non-discrimination In Federally-Assisted Programs
of The Department of Transportation—Effectuation of Title VI of
The Civil Rights Act of 1964);
c. The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment
of persons displaced or whose property has been acquired
because of Federal or Federal-aid programs and projects);
d. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et
seq.), as amended, (prohibits discrimination on the basis of
disability); and 49 CFR part 27;
e. The Age Discrimination Act of 1975, as amended, (42 U.S.C. §
6101 et seq.), (prohibits discrimination on the basis of age);
f. Airport and Airway Improvement Act of 1982, (49 USC § 471,
Section 47123), as amended, (prohibits discrimination based on
race, creed, color, national origin, or sex);
g. The Civil Rights Restoration Act of 1987, (PL 100 -209), (Broadened
the scope, coverage and applicability of Title VI of the Civil Rights
Act of 1964, The Age Discrimination Act of 1975 and Section 504 of
the Rehabilitation Act of 1973, by expanding the def inition of the
terms “programs or activities” to include all of the programs or
activities of the Federal-aid recipients, sub-recipients and
contractors, whether such programs or activities are Federally
funded or not);
h. Titles II and III of the Americans with Disabilities Act of 1990, which
prohibit discrimination on the basis of disability in the operation of
public entities, public and private transportation systems, places of
public accommodation, and certain testing entities (42 U.S.C. §§
12131 – 12189) as implemented by Department of Transportation
regulations at 49 CFR parts 37 and 38;
i. The Federal Aviation Administration’s Non-discrimination statute
(49 U.S.C. § 47123) (prohibits discrimination on the basis of race,
color, national origin, and sex);
j. Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, which
ensures non-discrimination against minority populations by
discouraging programs, policies, and activities with
disproportionately high and adverse human health or environmental
effects on minority and low-income populations;
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k. Executive Order 13166, Improving Access to Services for Persons
with Limited English Proficiency, and resulting agency guidance,
national origin discrimination includes discrimination because of
limited English proficiency (LEP). To ensure compliance with Title
VI, you must take reasonable steps to ensure that LEP persons
have meaningful access to your programs (70 Fed. Reg. at 74087
to 74100);
l. Title IX of the Education Amendments of 1972, as amended, which
prohibits you from discriminating because of sex in education
programs or activities (20 U.S.C. 1681 et seq).
E. DISADVANTAGED BUSINESS ENTERPRISES
In the event that the Sponsor has established a Disadvantaged Business Enterprises
(DBE) participation goal for the Project which is the subject of this contract, contractor
shall comply with all applicable DBE requirements of 49 CFR Part 26. The DBE
participation may be composed of any combination of firms certified as DBEs in
accordance with 49 CFR Part 26. The contractor shall comply with Sponsor’s DBE
Program and subcontract with those firms as previously submitted to Sponsor (on form
provided by Sponsor) on the contractor’s list of disadvantaged b usinesses to meet the
DBE participation goal for this Project. If the contractor intends to subcontract a portion
of the services to be performed hereunder, the contractor shall affirmatively seek out
DBEs that are potential subcontractors, suppliers, or consultants, and actively solicit
their interest, capability and prices. Any questions concerning DBE issues shall be
addressed to DBE Program staff at Telephone No. (559) 498-4071 or
Fax No. (559) 621-1182.
Contract Assurance (§ 26.13) – The contractor or subcontractor shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this contract.
The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award
and administration of DOT assisted contracts. Failure by the contractor to carry out
these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy, as the recipient deems appropriate.
Prompt Payment (§26.29) – The contractor agrees to pay each subcontractor under
this contract for satisfactory performance of its contract no later than 10 days from the
receipt of each payment the contractor receives from Sponsor. The contractor agrees
further to return any retainage payments to each subcontractor within 10 days after the
subcontractor's work is satisfactorily completed. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
approval of the Sponsor. This clause applies to both DBE and non-DBE subcontractors.
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F. ENERGY CONSERVATION REQUIREMENTS
Contractor and any subcontractors agree to comply with mandatory standards and
policies relating to energy efficiency as contained in the state energy conservation plan
issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6201 et
seq).
G. FEDERAL FAIR LABOR STANDARDS ACT (MINIMUM WAGE)
All contracts and subcontracts resulting from this solicitation incorporate by reference
the provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), with
the same force and effect as if given in full text. The FLSA sets minimum wage,
overtime pay, recordkeeping, and child labor standards for full and part time workers.
The contractor has full responsibility to monitor compliance to the referenced statute or
regulation. The contractor must address any claims or disputes that arise from this
requirement directly with the U.S. Department of Labor – Wage and Hour Division.
H. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
All contracts and subcontracts that result from this agreement incorporate by reference
the requirements of 29 CFR Part 1910 with the same force and effect as if given in full
text. Contractor must provide a work environment that is free from recognized hazards
that may cause death or serious physical harm to the employee. The Contractor retains
full responsibility to monitor its compliance and their subcontractor’s compliance with the
applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR
Part 1910). Contractor must address any claims or disputes that pertain to a referenced
requirement directly with the U.S. Department of Labor – Occupational Safety and
Health Administration.
I. RIGHTS TO INVENTIONS
All rights to inventions and materials generated under this contract are subject to
regulations issued by the FAA and the Sponsor of the Federal grant under which this
contract is executed.
J. TRADE RESTRICTION CLAUSE
The contractor or subcontractor, by submission of an offer and/or execution of a
contract, certifies that it:
a. is not owned or controlled by one or more citizens of a foreign country
included in the list of countries that discriminate against U.S. firms as
published by the Office of the United States Trade Representative
(U.S.T.R.);
b. has not knowingly entered into any contract or subcontract for this
project with a person that is a citizen or national of a foreign country
included on the list of countries that discriminate against U.S. firms as
published by the U.S.T.R; and
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c. has not entered into any subcontract for any product to be used on the
Federal on the project that is produced in a foreign country included on
the list of countries that discriminate against U.S. firms published by the
U.S.T.R.
This certification concerns a matter within the jurisdiction of an agency of the United
States of America and the making of a false, fictitious, or fraudulent certification may
render the maker subject to prosecution under Title 18, United States Code, Se ction
1001.
The contractor must provide immediate written notice to the Sponsor if the contractor
learns that its certification or that of a subcontractor was erroneous when submitted or
has become erroneous by reason of changed circumstances. The contrac tor must
require subcontractors provide immediate written notice to the Contractor if at any time
it learns that its certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in
accordance with 49 CFR 30.17, no contract shall be awarded to a Sponsor or
subcontractor:
(1) who is owned or controlled by one or more citizens or nationals of a foreign
country included on the list of countries that discriminate against U.S. firms
published by the U.S.T.R. or
(2) whose subcontractors are owned or controlled by one or more citizens or
nationals of a foreign country on such U.S.T.R. list or
(3) who incorporates in the public works project any product of a foreign country on
such U.S.T.R. list;
Nothing contained in the foregoing shall be construed to require establishment of a
system of records in order to render, in good faith, the certification required by this
provision. The knowledge and information of a contractor is not required to exceed
that which is normally possessed by a prudent person in the ordinary course of
business dealings.
The Sponsor agrees that, if awarded a contract resulting from this solicitation, it will
incorporate this provision for certification without modification in in all lower tier
subcontracts. The contractor may rely on the certification of a prospective
subcontractor that it is not a firm from a foreign country included on the list of countries
that discriminate against U.S. firms as published by U.S.T.R, unless the Sponsor has
knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed
when making an award. If it is later determined that the contractor or subcontract or
knowingly rendered an erroneous certification, the Federal Aviation Administration
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may direct through the Sponsor cancellation of the contract or subcontract for default
at no cost to the Sponsor or the FAA.
K. VETERAN’S PREFERENCE
In the employment of labor (excluding executive, administrative, and supervisory
positions), the contractor and all sub-tier contractors must give preference to covered
veterans as defined within Title 49 United States Code Section 47112. Covered
veterans include Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war
veterans, disabled veterans, and small business concerns (as defined by 15 U.S.C.
632) owned and controlled by disabled veterans. This preference only applies when
there are covered veterans readily available and qualified to perform the work to which
the employment relates.
L. SEISMIC SAFETY (applicable to agreements involving design)
In the performance of design services, the Contractor agrees to furnish a building
design and associated construction specification that conform to a building code
standard which provides a level of seismic safety substantially equivalent to standards
as established by the National Earthquake Hazards Reduction Program (NEHRP).
Local building codes that model their building code after the current version of the
International Building Code (IBC) meet the NEHRP equivalency level for seismic
safety. At the conclusion of the design services, the Contractor agrees to furnish the
Sponsor a “certification of compliance” that attests conformance of the building design
and the construction specifications with the seismic standards of NEHRP or an
equivalent building code.
II. PROVISIONS APPLICABLE TO CONTRACTS
$2,000 AND GREATER
A. COPELAND “ANTI-KICKBACK” ACT (applicable if contract includes
construction, alteration, repair, as defined in 29 CFR Part 5)
Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18
U.S.C. 874 and 40 U.S.C. 3145), as supplemented by Department of Labor reg ulation
29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any
means, any person employed on the project to give up any part of the compensation to
which the employee is entitled. The Contractor and each Subcontractor must subm it
to the Sponsor a weekly statement on the wages paid to each employee performing on
covered work during the prior week. Sponsor must report any violations of the Act to
the Federal Aviation Administration.
B. DAVIS-BACON REQUIREMENTS (applicable if contract includes construction,
alteration, repair, as defined in 29 CFR Part 5)
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1. Minimum Wages
(i) All laborers and mechanics employed or working upon the site of the work will be
paid unconditionally and not less often than once a week, and without subseque nt
deduction or rebate on any account (except such payroll deductions as are permitted
by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of
wages and bona fide fringe benefits (or cash equivalent thereof) due at time of
payment computed at rates not less than those contained in the wage determination of
the Secretary of Labor which is attached hereto and made a part hereof, regardless of
any contractual relationship which may be alleged to exist between the contractor and
such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under
section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject to the provisions of
paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for
more than a weekly period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are deemed to be constructively
made or incurred during such weekly period. Such laborers and mechanics shall be
paid the appropriate wage rate and fringe benefits on the wage determination for the
classification of work actually performed, without regard to skill, e xcept as provided in
29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the
time actually worked therein: Provided, that the employer's payroll records accurately
set forth the time spent in each classification in which work is performed. The wage
determination (including any additional classification and wage rates conformed under
(1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all
times by the contractor and its subcontractors at the site of the work in a prominent
and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics,
including helpers, which is not listed in the wage determination and which is to be
employed under the contract shall be classified in conformance with the wage
determination. The contracting officer shall approve an additional classification and
wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a
classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage determination.
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(B) If the contractor and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and the contracting officer agree on
the classification and wage rate (including the amount designated for fringe benefits
where appropriate), a report of the action taken shall be sent by the co ntracting officer
to the Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, D.C. 20210. The
Administrator, or an authorized representative, will approve, modify, or disapprove
every additional classification action within thirty days of receipt and so advise the
contracting officer or will notify the contracting officer within the thirty day period that
additional time is necessary.
(C) In the event the contractor, the laborers or mechan ics to be employed in the
classification or their representatives, and the contracting officer do not agree on the
proposed classification and wage rate (including the amount designated for fringe
benefits where appropriate), the contracting officer shall refer the questions, including
the views of all interested parties and the recommendation of the contracting officer, to
the Administrator for determination. The Administrator, or an authorized
representative, will issue a determination within thirty days of receipt and so advise the
contracting officer or will notify the contracting officer within the thirty day period that
additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant
to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers
performing work in the classification under this contract from the first day on which
work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers
or mechanics includes a fringe benefit which is not expressed as an hourly rate, the
contractor shall either pay the benefit as stated in the wage determination or shall pay
another bona fide fringe benefit or an hourly cash equival ent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the
contractor may consider as part of the wages of any laborer or mechanic the amount
of any costs reasonably anticipated in providing bona fide fringe benefits under a plan
or program, Provided, That the Secretary of Labor has found, upon the written request
of the contractor, that the applicable standards of the Davis -Bacon Act have been met.
The Secretary of Labor may require the contractor to set aside in a s eparate account
assets for the meeting of obligations under the plan or program.
2. Withholding.
The Federal Aviation Administration or the sponsor shall upon its own action or upon
written request of an authorized representative of the Department of La bor withhold or
cause to be withheld from the contractor under this contract or any other Federal
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contract with the same prime contractor, or any other Federally-assisted contract
subject to Davis-Bacon prevailing wage requirements, which is held by the same prime
contractor, so much of the accrued payments or advances as may be considered
necessary to pay laborers and mechanics, including apprentices, trainees, and
helpers, employed by the contractor or any subcontractor the full amount of wages
required by the contract. In the event of failure to pay any laborer or mechanic,
including any apprentice, trainee, or helper, employed or working on the site of work,
all or part of the wages required by the contract, the Federal Aviation Administration
may, after written notice to the contractor, sponsor, applicant, or owner, take such
action as may be necessary to cause the suspension of any further payment, advance,
or guarantee of funds until such violations have ceased.
3. Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the contractor
during the course of the work and preserved for a period of three years thereafter for
all laborers and mechanics working at the site of the work. Such records shall cont ain
the name, address, and social security number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates of contributions or costs
anticipated for bona fide fringe benefits or cash equivalents thereof of the typ es
described in 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours
worked, deductions made and actual wages paid. Whenever the Secretary of Labor
has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing benefits under a
plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor
shall maintain records which show that the commitment to provide such benefits is
enforceable, that the plan or program is financially responsible, and that the plan or
program has been communicated in writing to the laborers or mechanics affected, and
records which show the costs anticipated or the actual costs incurred in providing such
benefits. Contractors employing apprentices or trainees under approved programs
shall maintain written evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the apprentices and trainees, and
the ratios and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly for each week in which any contract work is
performed a copy of all payrolls to the Federal Aviation Administration if the agency is
a party to the contract, but if the agency is not such a party, the contractor will submit
the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission
to the Federal Aviation Administration. The payrolls submitted shall set out accurately
and completely all of the information required to be maintained under 29 CFR
5.5(a)(3)(i), except that full social security numbers and home addresses shall not be
included on weekly transmittals. Instead the payrolls shall only need to include an
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individually identifying number for each employee (e.g. , the last four digits of the
employee's social security number). The required weekly payroll information may be
submitted in any form desired. Optional Form WH–347 is available for this purpose
from the Wage and Hour Division W eb site at
http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime
contractor is responsible for the submission of copies of payrolls by all subcontractors.
Contractors and subcontractors shall maintain the full social security number and
current address of each covered worker, and shall provide them upon request to the
Federal Aviation Administration if the agency is a party to the contract, but if the
agency is not such a party, the contractor will submit them to the applicant, sp onsor, or
owner, as the case may be, for transmission to the Federal Aviation Administration,
the contractor, or the Wage and Hour Division of the Department of Labor for purposes
of an investigation or audit of compliance with prevailing wage requirements . It is not a
violation of this section for a prime contractor to require a subcontractor to provide
addresses and social security numbers to the prime contractor for its own records,
without weekly submission to the sponsoring government agency (or the ap plicant,
sponsor, or owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the contractor or subcontractor or his or her agent who pays or supervises
the payment of the persons employed under the contract and sha ll certify the
following:
(1) That the payroll for the payroll period contains the information required to be
provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained
under 29 CFR § 5.5 (a)(3)(i) and that such information is correct and complete;
(2) That each laborer and mechanic (including each helper, apprentice and trainee)
employed on the contract during the payroll period has been paid the full weekly
wages earned, without rebate, either directly or indirectly, and that n o deductions have
been made either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage
rates and fringe benefits or cash equivalents for the classification of work performed,
as specified in the applicable wage determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse
side of Optional Form WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph (3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and
Section 231 of Title 31 of the United States Code.
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(iii) The contractor or subcontractor shall make the records required under paragraph
(3)(i) of this section available for inspection, copying or transcription by authorized
representatives of the sponsor, the Federal Aviation Administration or the Department
of Labor, and shall permit such representatives to interview employees during working
hours on the job. If the contractor or subcontractor fails to submit the required records
or to make them available, the Federal agency may, after written notice to the
contractor, sponsor, applicant or owner, take such action as may be necessary to
cause the suspension of any further payment, advance, or gu arantee of funds.
Furthermore, failure to submit the required records upon request or to make such
records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined
rate for the work they performed when they are employed pursuant to and individually
registered in a bona fide apprenticeship program registered with the U.S. Department
of Labor, Employment and Training Administration , Bureau of Apprenticeship and
Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a
person is employed in his or her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually registered in the
program, but who has been certified by the Bureau of Apprenticeship and Training or a
State Apprenticeship Agency (where appropriate) to be eligible for probationary
employment as an apprentice. The allowable ratio of apprentices to journeymen on the
job site in any craft classification shall not be greater than the ratio permitted to the
contractor as to the entire work force under the registered program. Any worker listed
on a payroll at an apprentice wage rate, who is not registe red or otherwise employed
as stated above, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio permitted under the
registered program shall be paid not less than the applicable wage rate on the wage
determination for the work actually performed. Where a contractor is performing
construction on a project in a locality other than that in which its program is registered,
the ratios and wage rates (expressed in percentages of the journeyman's hourly rate)
specified in the contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered
program for the apprentice's level of progress, expressed as a percentage of the
journeymen hourly rate specified in the applicable wage determination. Apprentices
shall be paid fringe benefits in accordance with the provisions of the a pprenticeship
program. If the apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator determines that a different practice
prevails for the applicable apprentice classification, fringes shall be paid in accordance
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with that determination. In the event the Bureau of Apprenticeship and Training, or a
State Apprenticeship Agency recognized by the Bureau, withdraws approval of an
apprenticeship program, the contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work performed until
an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work
at less than the predetermined rate for the work performed unless they are employed
pursuant to and individually registered in a program which has received prior approval,
evidenced by formal certification by the U.S. Department of Labor, Employment and
Training Administration. The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the
approved program for the trainee's level of progress, expressed as a percentage of the
journeyman hourly rate specified in the applicable wage determination. Trainees shall
be paid fringe benefits in accordance with the provisions of the trainee program. If the
trainee program does not mention fringe benefits, trainees shall be paid the full
amount of fringe benefits listed on the wage determination unless the Administrator of
the Wage and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate on the wage determination
which provides for less than full fringe benefits for apprentices. Any employee listed
on the payroll at a trainee rate that is no t registered and participating in a training plan
approved by the Employment and Training Administration shall be paid not less than
the applicable wage rate on the wage determination for the classification of work
actually performed. In addition, any trainee performing work on the job site in excess
of the ratio permitted under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work actually performed. In
the event the Employment and Training Administration withdraws approval of a
training program, the contractor will no longer be permitted to utilize trainees at less
than the applicable predetermined rate for the work performed until an acceptable
program is approved.
(iii) Equal Employment Opportunity. The utilization of apprentices, trainees and
journeymen under this part shall be in conformity with the equal employment
opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part
30.
5. Compliance with Copeland Act Requirements.
The contractor shall comply with the requirements of 29 CFR Part 3, which are
incorporated by reference in this contract.
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6. Subcontracts.
The contractor or subcontractor shall insert in any subcontracts the clauses contained
in 29 CFR Part 5.5(a)(1) through (10) and such other clauses as the Federal Aviation
Administration may by appropriate instructions require, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in 29 CFR Part 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be
grounds for termination of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance With Davis-Bacon and Related Act Requirements.
All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29
CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes Concerning Labor Standards.
Disputes arising out of the labor standards provisions of this contract shall not be
subject to the general disputes clause of this contra ct. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor set forth in 29
CFR Parts 5, 6 and 7. Disputes within the meaning of this clause include disputes
between the contractor (or any of its subcontractors) and the contracting agency, the
U.S. Department of Labor, or the employees or their representatives.
10. Certification of Eligibility.
(i) By entering into this contract, the contractor certifies that neither it (nor he or she)
nor any person or firm who has an interest in the contractor's firm is a person or firm
ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -
Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for
award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29
CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code,
18 U.S.C. 1001.
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III. PROVISION APPLICABLE TO CONTRACTS
$3,500 AND GREATER
A. BAN ON TEXTING AND DRIVING
The contractor shall adopt and enforce workplace safety policies to decrease crashes
caused by distracted drivers, including policies to ban text messaging while driving
when performing any work for, or on behalf of, th e Federal government. The contractor
further agrees to conduct workplace safety initiatives commensurate with the size of its
business, such as establishing rules or programs that prohibit text messaging while
driving and education, awareness, and other outreach to employees about the safety
risks associated with texting while driving.
IV. PROVISIONS APPLICABLE TO CONSTRUCTION CONTRACTS
$10,000 AND GREATER
A. AFFIRMATIVE ACTION REQUIREMENT (applicable to contracts and
subcontracts exceeding $10,000 and including AIP-funded construction work.
“Construction work” means construction, rehabilitation, alteration, conversion,
extension, demolition or repair of buildings, highways, or other changes or
improvements to real property, including facilities providing utility services. The term
also includes the supervision, inspection, and other onsite functions incidental to the
actual construction.)
1. The Offeror's or Bidder’s attention is called to the "Equal Opportunity Clause" and the
"Standard Federal Equal Employment Opportunity Construction Contract Specifications"
set forth herein.
2. The goals and timetables for minority and female participation, expressed in
percentage terms for the contractor's aggregate workforce in each trade on all
construction work in the covered area, are as follows:
Timetables
Goals for minority participation for each trade: 26.1%
Goals for female participation in each trade: 6.9%
These goals are applicable to all of the contractor's construction work (whether or not it
is Federal or federally-assisted) performed in the covered area. If the contractor
performs construction work in a geographical area located outside of the covered area,
it shall apply the goals established for such geographical area where the work is
actually performed. With regard to this second area, the contractor also is subject to the
goals for both its federally involved and non-federally involved construction.
The Contractor's compliance with the Executive Order and the regulations in 41 CFR
Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific
affirmative action obligations required by the specifications set forth in 41 CFR 60 -
4.3(a), and its efforts to meet the goals. The hours of minority and female employment
and training must be substantially uniform throughout the length of the contract, and in
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each trade, and the contractor shall make a good faith effort to employ minorities and
women evenly on each of its projects. The transfer of minority or female employees or
trainees from Contractor to Contractor or from project to project for the sole purpose of
meeting the Contractor's goals shall be a violation of the contract, the Executive Order
and the regulations in 41 CFR Part 60-4. Compliance with the goals will be mea sured
against the total work hours performed.
3. The Contractor shall provide written notification to the Director of the Office of
Federal Contract Compliance Programs (OFCCP) within 10 working days of award of
any construction subcontract in excess of $1 0,000 at any tier for construction work
under the contract resulting from this solicitation. The notification shall list the name,
address, and telephone number of the subcontractor; employer identification number
of the subcontractor; estimated dollar amount of the subcontract; estimated starting
and completion dates of the subcontract; and the geographical area in which the
subcontract is to be performed.
4. As used in this notice and in the contract resulting from this solicitation, the "covered
area" is the State of California, County of Fresno, City of Fresno.
B. EQUAL EMPLOYMENT OPPORTUNITY (E.E.O) (applicable to construction
contracts, as defined in the Affirmative Action provision, over $10,000)
1. EQUAL OPPORTUNITY CLAUSE
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. The contractor will
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment without regard to their race, color, religion, sex, sexual
orientation, gender identify or national origin. Such action shall include, but not be
limited to the following: employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The contractor
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided setting forth the provisions of this
nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or
on behalf of the contractor, state that all qualified applicants will receive considerations
for employment without regard to race, color, religion, sex, or national origin.
(3) The contractor will send to each labor union or representative of workers with
which he has a collective bargaining agreement or other contract or understanding, a
notice to be provided advising the said labor union or workers' representatives of the
contractor's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
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(5) The contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books, records, and
accounts by the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor's noncompliance with the nondiscrimination clauses
of this contract or with any of the said rules, regulations, or orders, this contract may
be canceled, terminated, or suspended in whole or in part and the contractor may be
declared ineligible for further Government contracts or federally assisted construction
contracts in accordance with procedures authorized in Executive Order 11246 of
September 24, 1965, and such other sanctions may be imposed and remedies
invoked as provided in Executive Order 11246 of September 24, 1965, or by rule,
regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the portion of the sentence immediately preceding
paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or
purchase order unless exempted by rules, regulations, or orders of the Secretary of
Labor issued pursuant to section 204 of Executive Order 11246 of September 24,
1965, so that such provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or purchase o rder as
the administering agency may direct as a means of enforcing such provisions,
including sanctions for noncompliance: Provided, however, That in the event a
contractor becomes involved in, or is threatened with, litigation with a subcontractor or
vendor as a result of such direction by the administering agency the contractor may
request the United States to enter into such litigation to protect the interests of the
United States.
2. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY
CONSTRUCTION CONTRACT SPECIFICATIONS
1. As used in these specifications:
a. "Covered area" means the geographical area described in the solicitation from
which this contract resulted;
b. "Director" means Director, Office of Federal Contract Compliance Programs
(OFCCP), U.S. Department of Labor, or any person to whom the Director
delegates authority;
c. "Employer identification number" means the Federal social security number
used on the Employer's Quarterly Federal Tax Return, U.S. Treasury
Department Form 941;
d. "Minority" includes:
(1) Black (all) persons having origins in any of the Black African racial groups
not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South
American, or other Spanish culture or origin regardless of race);
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(3) Asian and Pacific Islander (all persons having origins in any of the original
peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the
Pacific Islands); and
(4) American Indian or Alaskan native (all persons having origins in any of the
original peoples of North America and maintaining identifiable tribal affiliations
through membership and participation or community identification).
2. Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of
the work involving any construction trade, it shall physically include in each
subcontract in excess of $10,000 the provisions of these specifications and the Notice
which contains the applicable goals for minority and female participation and which is
set forth in the solicitations from which this contract resulted.
3. If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan
approved by the U.S. Department of Labor in the covered area either individually or
through an association, its affirmative action obligations on all work in the Plan area
(including goals and timetables) shall be in accordance with that Plan for those trades
which have unions participating in the Plan. Contractors shall be able to demonstrate
their participation in and compliance with the provisions of any such Hometown Plan.
Each contractor or subcontractor participating in an approved plan is individually
required to comply with its obligations under the EEO clause and to make a good faith
effort to achieve each goal under the Plan in each trade in which it has employees.
The overall good faith performance by other contractors or subcontractors toward a
goal in an approved Plan does not excuse any covered contractor's or subcontractor's
failure to take good faith efforts to achieve the Plan goals and timetables.
4. The contractor shall implement the specific affirmative action standards provided in
paragraphs 7a through 7p of these specifications. The goals set forth in the
solicitation from which this contract resulted are expressed as percentages of the total
hours of employment and training of minority and female utilization the contractor
should reasonably be able to achieve in each construction trade in which it has
employees in the covered area. Covered construction contractors performing
construction work in a geographical area where they do not have a Federal or federally
assisted construction contract shall apply the minority and female goals established for
the geographical area where the work is being perfo rmed. Goals are published
periodically in the Federal Register in notice form, and such notices may be obtained
from any Office of Federal Contract Compliance Programs office or from Federal
procurement contracting officers. The contractor is expected to make substantially
uniform progress in meeting its goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement nor the failure by a
union with whom the contractor has a collective bargaining agreement to refer either
minorities or women shall excuse the contractor's obligations under these
specifications, Executive Order 11246 or the regulations promulgated pursuant
thereto.
6. In order for the non-working training hours of apprentices and trainees to be
counted in meeting the goals, such apprentices and trainees shall be employed by the
contractor during the training period and the contractor shall have made a commitment
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to employ the apprentices and trainees at the completion of their training, subject to
the availability of employment opportunities. Trainees shall be trained pursuant to
training programs approved by the U.S. Department of Labor.
7. The contractor shall take specific affirmative actions to ensure equal employment
opportunity. The evaluation of the contractor's compliance with these specifications
shall be based upon its effort to achieve maximum results from its actions. The
contractor shall document these efforts fully and shall implement affirmative action
steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation,
and coercion at all sites, and in all facilities at which the contractor's employees are
assigned to work. The contractor, where possible, will assign two or more women
to each construction project. The contractor shall specifically ensure that all
foremen, superintendents, and other onsite supervisory personnel are aware of
and carry out the contractor's obligation to maintain such a working environment,
with specific attention to minority or female individuals working at such sites or in
such facilities.
b. Establish and maintain a current list of minority and female recruitment sources,
provide written notification to minority and female recruitment source s and to
community organizations when the contractor or its unions have employment
opportunities available, and maintain a record of the organizations' responses.
c. Maintain a current file of the names, addresses, and telephone numbers of each
minority and female off-the-street applicant and minority or female referral from a
union, a recruitment source, or community organization and of what action was
taken with respect to each such individual. If such individual was sent to the union
hiring hall for referral and was not referred back to the contractor by the union or, if
referred, not employed by the contractor, this shall be documented in the file with
the reason therefore along with whatever additional actions the contractor may
have taken.
d. Provide immediate written notification to the Director when the union or unions
with which the contractor has a collective bargaining agreement has not referred to
the contractor a minority person or female sent by the contractor, or when the
contractor has other information that the union referral process has impeded the
contractor's efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs
for the area which expressly include minorities and women, including upgrading
programs and apprenticeship and trainee programs relevant to the contractor's
employment needs, especially those programs funded or approved by the
Department of Labor. The contractor shall provide notice of these programs to the
sources compiled under 7b above.
f. Disseminate the contractor's EEO policy by providing notice of the policy to
unions and training programs and requesting their cooperation in assisting the
contractor in meeting its EEO obligations; by including it in any policy m anual and
collective bargaining agreement; by publicizing it in the company newspaper,
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annual report, etc.; by specific review of the policy with all management personnel
and with all minority and female employees at least once a year; and by posting the
company EEO policy on bulletin boards accessible to all employees at each
location where construction work is performed.
g. Review, at least annually, the company's EEO policy and affirmative action
obligations under these specifications with all employees having any responsibility
for hiring, assignment, layoff, termination, or other employment decisions including
specific review of these items with onsite supervisory personnel such a
superintendents, general foremen, etc., prior to the initiation of constr uction work at
any job site. A written record shall be made and maintained identifying the time
and place of these meetings, persons attending, subject matter discussed, and
disposition of the subject matter.
h. Disseminate the contractor's EEO policy externally by including it in any
advertising in the news media, specifically including minority and female news
media, and providing written notification to and discussing the contractor's EEO
policy with other contractors and subcontractors with whom the contractor does or
anticipates doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female, and
community organizations, to schools with minority and female students; and to
minority and female recruitment and training organizations serving the contractor's
recruitment area and employment needs. Not later than one month prior to the
date for the acceptance of applications for apprenticeship or other training by any
recruitment source, the contractor shall send written n otification to organizations,
such as the above, describing the openings, screening procedures, and tests to be
used in the selection process.
j. Encourage present minority and female employees to recruit other minority
persons and women and, where reasonable, provide after school, summer, and
vacation employment to minority and female youth both on the site and in other
areas of a contractor's workforce.
k. Validate all tests and other selection requirements where there is an obligation to
do so under 41 CFR Part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and
female personnel, for promotional opportunities and encourage these employees to
seek or to prepare for, through appropriate training, etc., such opportun ities.
m. Ensure that seniority practices, job classifications, work assignments, and other
personnel practices do not have a discriminatory effect by continually monitoring all
personnel and employment related activities to ensure that the EEO policy and the
contractor's obligations under these specifications are being carried out.
n. Ensure that all facilities and company activities are non -segregated except that
separate or single user toilet and necessary changing facilities shall be provided to
assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts
from minority and female construction contractors and suppliers, including
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circulation of solicitations to minority and female contractor associati ons and other
business associations.
p. Conduct a review, at least annually, of all supervisor's adherence to and
performance under the contractor's EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations, which assist in
fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts
of a contractor association, joint contractor union, contractor community, or other
similar groups of which the contractor is a member and participant, may be asserted
as fulfilling any one or more of its obligations under 7a through 7p of these
specifications provided that the contractor actively participates in the group, makes
every effort to assure that the group has a positive imp act on the employment of
minorities and women in the industry, ensures that the concrete benefits of the
program are reflected in the contractor's minority and female workforce participation,
makes a good faith effort to meet its individual goals and timet ables, and can provide
access to documentation which demonstrates the effectiveness of actions taken on
behalf of the contractor. The obligation to comply, however, is the contractor's and
failure of such a group to fulfill an obligation shall not be a de fense for the contractor's
noncompliance.
9. A single goal for minorities and a separate single goal for women have been
established. The contractor, however, is required to provide equal employment
opportunity and to take affirmative action for all mino rity groups, both male and female,
and all women, both minority and non -minority. Consequently, if the particular group is
employed in a substantially disparate manner (for example, even though the contractor
has achieved its goals for women generally,) t he contractor may be in violation of the
Executive Order if a specific minority group of women is underutilized.
10. The contractor shall not use the goals and timetables or affirmative action
standards to discriminate against any person because of race, color, religion, sex, or
national origin.
11. The contractor shall not enter into any subcontract with any person or firm
debarred from Government contracts pursuant to Executive Order 11246.
12. The contractor shall carry out such sanctions and penalties for violation of these
specifications and of the Equal Opportunity Clause, including suspension, termination,
and cancellation of existing subcontracts as may be imposed or ordered pursuant to
Executive Order 11246, as amended, and its implementing regulations, by the Office
of Federal Contract Compliance Programs. Any contractor who fails to carry out such
sanctions and penalties shall be in violation of these specifications and Executive
Order 11246, as amended.
13. The contractor, in fulfilling its obligations under these specifications, shall
implement specific affirmative action steps, at least as extensive as those standards
prescribed in paragraph 7 of these specifications, so as to achieve maximum results
from its efforts to ensure equal employment opportunity. If the contractor fails to
comply with the requirements of the Executive Order, the implementing regulations, or
these specifications, the Director shall proceed in accordance with 41 CFR 60-4.8.
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14. The contractor shall designate a responsible official to monitor all employment
related activity to ensure that the company EEO policy is being carried out, to submit
reports relating to the provisions hereof as may be required by the Government, and to
keep records. Records shall at least include for each employee, the name, address,
telephone number, construction trade, union affiliation if any, employee identification
number when assigned, social security number, race, sex, status (e.g., mechanic,
apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per
week in the indicated trade, rate of pay, and locations at which the work was
performed. Records shall be maintained in an easily understandable and retrievable
form; however, to the degree that existing records sati sfy this requirement, contractors
shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of
other laws which establish different standards of compliance or upon the applicati on of
requirements for the hiring of local or other area residents (e.g., those under the Public
Works Employment Act of 1977 and the Community Development Block Grant
Program).
C. PROHIBITION OF SEGREGATED FACILITIES (applicable to contracts and
subcontracts exceeding $10,000 and including AIP-funded construction work.
“Construction work” means construction, rehabilitation, alteration, conversion,
extension, demolition or repair of buildings, highways, or other changes or
improvements to real property, including facilities providing utility services. The term
also includes the supervision, inspection, and other onsite functions incidental to the
actual construction.)
(a) The Contractor agrees that it does not and will not maintain or provide for its
employees any segregated facilities 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 segregated facilities are maintained. The
Contractor agrees that a breach of this clause is a violation of the Equal
Opportunity clause in this contract.
(b) “Segregated facilities,” as used in this clause, means any waiting rooms,
work areas, rest rooms and wash rooms, restaurants and other eating areas,
time clocks, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees, that are segregated by explicit
directive or are in fact segregated on the basis of race, color, religion, sex, or
national origin because of written or oral policies or employee custom. The term
does not include separate or single-user rest rooms or necessary dressing or
sleeping areas provided to assure privacy between the sexes.
(c) The Contractor shall include this clause in every subcontract and purchase
order that is subject to the Equal Opportunity clause of this contract.
D. PROCUREMENT OF RECOVERED MATERIALS (applicable if an agreement
includes procurement of a product that exceeds $10,000)
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Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, and the
regulatory provisions of 40 CFR Part 247. In the performance of this contrac t and to
the extent practicable, the Contractor and subcontractors are to use of products
containing the highest percentage of recovered materials for items designated by the
Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
a) The contract requires procurement of $10,000 or more of a designated item
during the fiscal year; or,
b) The contractor has procured $10,000 or more of a designated item using Federal
funding during the previous fiscal year.
The list of EPA-designated items is available at
www.epa.gov/epawaste/conserve/tools/cpg/products/. Section 6002(c) establishes
exceptions to the preference for recovery of EPA -designated products if the contractor
can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the
contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or
c) Is only available at an unreasonable price.
E. TERMINATION OF CONTRACT
1. TERMINATION FOR CONVENIENCE
The Sponsor may, by written notice to the Contractor, terminate this Agreement for its
convenience and without cause or default on the part of Contractor. Upon receipt of
the notice of termination, except as explicitly directed by the Sponsor, the Contractor
must immediately discontinue all services affected.
Upon termination of the Agreement, the Contractor must deliver to the Sponsor all
data, surveys, models, drawings, specifications, reports, maps, photographs,
estimates, summaries, and other documents and materials prepared by the Engineer
under this contract, whether complete or partially complete.
Sponsor agrees to make just and equitable compensation to the Contractor for
satisfactory work completed up through the date the Contractor receives the
termination notice. Compensation will not include anticipated profit on non -performed
services.
Sponsor further agrees to hold Contractor harmless for errors or omissions in
documents that are incomplete as a result of the termination action under this clause.
2. TERMINATION FOR DEFAULT
Either party may terminate this Agreement for cause if the other party fails to fulfill its
obligations that are essential to the completion of the work per the terms and
conditions of the Agreement. The party initiating the termination action must allow t he
breaching party an opportunity to dispute or cure the breach.
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The terminating party must provide the breaching party [7] days advance written notice
of its intent to terminate the Agreement. The notice must specify the nature and extent
of the breach, the conditions necessary to cure the breach, and the effective date of
the termination action. The rights and remedies in this clause are in addition to any
other rights and remedies provided by law or under this agreement.
a) Termination by Sponsor: The Sponsor may terminate this Agreement in
whole or in part, for the failure of the Contractor to:
i) Perform the services within the time specified in this contract or by
Sponsor approved extension;
ii) Make adequate progress so as to endanger satisfactory performance of
the Project;
iii) Fulfill the obligations of the Agreement that are essential to the
completion of the Project.
Upon receipt of the notice of termination, the Contractor must immediately
discontinue all services affected unless the notice directs otherwise. Upon
termination of the Agreement, the Contractor must deliver to the Sponsor all
data, surveys, models, drawings, specifications, reports, maps, photographs,
estimates, summaries, and other documents and materials prepared by the
Engineer under this contract, whether complete or partially complete.
Sponsor agrees to make just and equitable compensation to the Contractor for
satisfactory work completed up through the date the Contractor receives the
termination notice. Compensation will not include anticipated profit on non-
performed services.
Sponsor further agrees to hold Contractor harmless for errors or omissions in
documents that are incomplete as a result of the termination action under this
clause.
If, after finalization of the termination action, the Sponsor determines the
Contractor was not in default of the Agreement, the rights and obligations of the
parties shall be the same as if the Sponsor issued the termination for the
convenience of the Sponsor.
b) Termination by Contractor: The Contractor may terminate this Agreement in
whole or in part, if the Sponsor:
i) Defaults on its obligations under this Agreement;
ii) Fails to make payment to the Contractor in accordance with the terms of
this Agreement;
iii) Suspends the Project for more than [180] days due to reasons beyond the
control of the Contractor.
Upon receipt of a notice of termination from the Contractor, Sponsor agrees to
cooperate with Contractor for the purpose of terminating the agreement or portion
thereof, by mutual consent. If Sponsor and Contr actor cannot reach mutual
agreement on the termination settlement, the Contractor may, without prejudice to
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any rights and remedies it may have, proceed with terminating all or parts of this
Agreement based upon the Sponsor’s breach of the contract.
In the event of termination due to Sponsor breach, the Engineer is entitled to
invoice Sponsor and to receive full payment for all services performed or furnished
in accordance with this Agreement and all justified reimbursable expenses incurred
by the Contractor through the effective date of termination action. Sponsor agrees
to hold Contractor harmless for errors or omissions in documents that are
incomplete as a result of the termination action under this clause.
V. PROVISION APPLICABLE TO CONTRACTS
$25,000 AND GREATER
A. CERTIFICATIONS REGARDING DEBARMENT AND SUSPENSION
1. CERTIFICATE REGARDING DEBARMENT AND SUSPENSION (BIDDER OR
OFFEROR)
By submitting a bid/proposal under this solicitation, the bidder or offeror certifies that at
the time the bidder or offeror submits its proposal that neither it nor its principals are
presently debarred or suspended by any Federal department or agency from
participation in this transaction.
2. CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
(SUCCESSFUL BIDDER REGARDING LOWER TIER PARTICIPANTS)
The successful bidder, by administering each lower tier subcontract that exceeds
$25,000 as a “covered transaction”, must verify each lower tier participant of a “covered
transaction” under the project is not presently debarred or otherwi se disqualified from
participation in this federally assisted project. The successful bidder will accomplish this
by:
1. Checking the System for Award Management at website: http://www.sam.gov
2. Collecting a certification statement similar to the Certificate Regarding
Debarment and Suspension (Bidder or Offeror), above.
3. Inserting a clause or condition in the covered transaction with the lower tier
contract
If the FAA later determines that a lower tier participant failed to te ll a higher tier that it
was excluded or disqualified at the time it entered the covered transaction, the FAA may
pursue any available remedy, including suspension and debarment of the non -compliant
participant.
///
///
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Attachment A: CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR
TOTAL FACILITY
(Buildings such as Terminal, SRE, ARFF, etc.)
As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and
submit this certification statement with their proposal. The bidder or offeror must
indicate how they intend to comply with 49 USC § 50101 by selecting one of the
following certification statements. These statements are mutually exclusive. Bidder
must select one or the other (i.e. not both) by inserting a checkmark () or the letter “X”.
Bidder or offeror hereby certifies that it will comply with 49 USC. 50101 by:
a) Only installing steel and manufactured products produced in the United
States; or
b) Installing manufactured products for which the FAA has issued a waiver
as indicated by inclusion on the current FAA Nationwide Buy American
Waivers Issued listing; or
c) Installing products listed as an Excepted Article, Material or Supply in
Federal Acquisition Regulation Subpart 25.108.
By selecting this certification statement, the bidder or offeror agrees:
1. To provide to the Owner evidence that documents the source and
origin of the steel and manufactured product.
2. To faithfully comply with providing US domestic products
3. To refrain from seeking a waiver request after establishment of the
contract, unless extenuating circumstances emerge that the FAA
determines justified.
The bidder or offeror hereby certifies it cannot comply with the 100% Buy
American Preferences of 49 USC § 50101(a) but may qualify for either a Type
3 or Type 4 waiver under 49 USC § 50101(b). By selecting this certification
statement, the apparent bidder or offeror with the appa rent low bid agrees:
1. To the submit to the Owner within 15 calendar days of the bid opening, a
formal waiver request and required documentation that support the type
of waiver being requested.
2. That failure to submit the required documentation within the specified
timeframe is cause for a non-responsive determination may results in
rejection of the proposal.
3. To faithfully comply with providing US domestic products at or above the
approved US domestic content percentage as approved by the FAA.
4. To furnish US domestic product for any waiver request that the FAA
rejects.
5. To refrain from seeking a waiver request after establishment of the
contract, unless extenuating circumstances emerge that the FAA
determines justified.
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X
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Required Documentation
Type 3 Waiver - The cost of components and subcomponents produced in the United
States is more that 60% of the cost of all components and subcomponents of the
“facility”. The required documentation for a type 3 waiver is:
a) Listing of all manufactured products that are not comprised of 100% US
domestic content (Excludes products listed on the FAA Nationwide Buy
American Waivers Issued listing and products excluded by Federal
Acquisition Regulation Subpart 25.108; products of unknown origin must be
considered as non-domestic products in their entirety)
b) Cost of non-domestic components and subcomponents, excluding labor costs
associated with final assembly and installation at project location.
c) Percentage of non-domestic component and subcomponent cost as
compared to total “facility” component and subcomponent costs, excluding
labor costs associated with final assembly and installation at project location.
Type 4 Waiver – Total cost of project using US domestic source product exceeds the
total project cost using non-domestic product by 25%. The required documentation for a
type 4 of waiver is:
a) Detailed cost information for total project using US domestic product
b) Detailed cost information for total project using non -domestic product
False Statements: Per 49 USC § 47126, this certification concerns a matter within
the jurisdiction of the Federal Aviation Administration and the making of a false,
fictitious or fraudulent certification may render the maker subject to prosecution under
Title 18, United States Code.
Date Signature
Company Name Title
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Blackburn Consulting Vice President
4/21/2021
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Attachment B: CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR
MANUFACTURED PRODUCTS
(Non-building construction projects, equipment acquisition projects)
As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and
submit this certification statement with their proposal. The bidder or offeror must
indicate how they intend to comply with 49 USC § 50101 by selecting one on the
following certification statements. These statements are mutually exclusive. Bidder
must select one or the other (not both) by inserting a checkmark () or the letter “X”.
Bidder or offeror hereby certifies that it will comply with 49 USC § 50101 by:
a) Only installing steel and manufactured products produced in the United
States, or;
b) Installing manufactured products for which the FAA has issued a waiver as
indicated by inclusion on the current FAA Nationwide Buy American Waivers
Issued listing, or;
c) Installing products listed as an Excepted Article, Material or Supply in
Federal Acquisition Regulation Subpart 25.108.
By selecting this certification statement, the bidder or offeror agrees:
1. To provide to the Owner evidence that documents the source and origin of
the steel and manufactured product.
2. To faithfully comply with providing US domestic product
3. To furnish US domestic product for any waiver request that the FAA rejects
4. To refrain from seeking a waiver request after establishment of the contract,
unless extenuating circumstances emerge that the FAA determines justified.
The bidder or offeror hereby certifies it cannot comply with the 100% Buy
American Preferences of 49 USC § 50101(a) but may qualify for either a Type 3
or Type 4 waiver under 49 USC § 50101(b). By selecting this certification
statement, the apparent bidder or offeror with the apparent low bid agrees:
To the submit to the Owner within 15 calendar days of the bid opening, a formal
waiver request and required documentation that support the type of waiver being
requested.
1. That failure to submit the required documentation within the specified
timeframe is cause for a non-responsive determination may result in
rejection of the proposal.
2. To faithfully comply with providing US domestic products at or above the
approved US domestic content percentage as approved by the FAA.
3. To refrain from seeking a waiver request after establishment of the contract,
unless extenuating circumstances emerge that the FAA determines justified.
DocuSign Envelope ID: F1D302D4-E812-416B-9CD1-20E3A2B678F4
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FYI-S 19.4 FedFund On-Call Services 09-25-19
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Required Documentation
Type 3 Waiver - The cost of the item components and subcomponents produced in the
United States is more that 60% of the cost of all components and subcomponents of the
“item”. The required documentation for a type 3 waiver is:
a) Listing of all product components and subcomponents that are not comprised
of 100% US domestic content (Excludes products listed on the FAA
Nationwide Buy American Waivers Issued listing and products excluded by
Federal Acquisition Regulation Subpart 25.108; products of unknown origin
must be considered as non-domestic products in their entirety)
b) Cost of non-domestic components and subcomponents, excluding labor costs
associated with final assembly at place of manufacture.
c) Percentage of non-domestic component and subcomponent cost as
compared to total “item” component and subcomponent costs, excluding labor
costs associated with final assembly at place of manufacture.
Type 4 Waiver – Total cost of project using US domestic source product exceeds the
total project cost using non-domestic product by 25%. The required documentation for a
type 4 of waiver is:
a) Detailed cost information for total project using US domestic product
b) Detailed cost information for total project using non -domestic product
False Statements: Per 49 USC § 47126, this certification concerns a matter within
the jurisdiction of the Federal Aviation Administration and the making of a false,
fictitious or fraudulent certification may render the maker subject to prosecution under
Title 18, United States Code.
Date Signature
Company Name Title
DocuSign Envelope ID: F1D302D4-E812-416B-9CD1-20E3A2B678F4
Vice PresidentBlackburn Consulting
4/21/2021
Auburn Office:
11521 Blocker Drive, Ste 110
Auburn, CA 95603 West Sacramento (916) 375-8706
(530) 887-1494 Fresno (559) 438-8411
Robert Lokteff is the Vice President
Wendy Supinger is the CFO
Both have authority to sign on behalf of Blackburn Consulting
DocuSign Envelope ID: F1D302D4-E812-416B-9CD1-20E3A2B678F4