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HomeMy WebLinkAboutC-7572-2 - Agreement for Replacement of Overhead with Underground Communication FacilitiesZ (Ni 3939 East Coronado, 2nd Floor a t M Anaheim, California 92807 AGREEMENT FOR REPLACEMENT OF OVERHEAD WITH U UNDERGROUND COMMUNICATION FACILITIES THIS AGREEMENT ("Agreement") is between the City of Newport Beach, a California municipal corporation and charter city ("Newport Beach"), and Pacific Bell Telephone Company dba AT&T California ("Pacific"), collectively the "Parties". This Agreement is made and entered into as of this 20th day of November, 2019 I. DEFINITIONS. As used in this Agreement, the following A. The term "Underground Supporting Structure" ("USS") includes, but is not limited to conduit, bore casings and manholes. B. The term "District" refers to the area generally bounded by Balboa Boulevard, from West Coast Highway to 22nd Street, including Court Street between 21 st and 20th Streets, created by Resolution Number 2016-41 in the City of Newport Beach, dated March 22, 2016, in accordance with Chapter 15.32 of the City of Newport Beach Municipal Code ("NBMC"), where the undergrounding of existing aerial facilities is to take place. Pacific's Job Number is LE(19)AOFR6S. C. The term "Project" means all of the work required to underground Pacific's existing aerial facilities within the District. D. The terms "Trench" or "Trenching" include, but are not limited to, excavating, backfilling, compacting, and as necessary, breaking and replacing pavement, sidewalks, driveways, curbs and gutters; and restoring all other surface features, disturbed by underground construction including landscaping. E. The term "Tariff' refers to Schedule Cal. P.U.C., No. A2, Rule 32. F. The term `Environmental Laws" refers to any applicable local, state or federal environmental laws, including but not limited to: the California Environmental Quality Act, the California Coastal Act, the California Land Conservation Act, the Comprehensive Environmental Response Compensation and Liability Act, and the Resource Conservation Recovery Act. G. The term "Hazardous Substance" refers to any substances, materials and wastes which are or become regulated under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations. H. The term "CPUC" refers to the California Public Utilities Commission. Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 1 of 9 II. RECITALS. A. Newport Beach has asked Pacific to replace its existing aerial communication facilities with underground communication facilities and perform other work upon its facilities within the District. B. To facilitate this request, Newport Beach has agreed to construct the necessary Trenching and place the USS required to relocate Pacific's facilities within the District. (as referenced in Section III.Bl.b). C. In contemplation of this Agreement, Newport Beach has made arrangements for the concurrent removal of all electric and communication aerial distribution facilities within the District. D. Pacific is willing to accept Newport Beach's request, subject to the terms and conditions of this Agreement. In consideration of the above, the Parties mutually agree as follows: III. SPECIFIC PROVISIONS. A. Tariff. This Project shall be conducted in accordance with the Tariff. B. Work to be Performed by Newport Beach. I . Newport Beach, at its own expense, shall prepare all documents necessary to coordinate and implement Project plans within the District. The documents shall include, but not be limited to: a. Project Plans and Specifications. Project plans and specifications as provided by Pacific shall be included in Newport Beach's Balboa Boulevard Undergrounding Utility District No. 22a. b. Delineation of the USS. Project documents based on Pacific Bell plans and specifications shall delineate all USS to be constructed and installed within the District. Newport Beach will be responsible for Trenching and the construction and installation of the necessary USS along the public way and utility rights of way within the District (identified on the Project plans and specifications referenced in Section III B. La. above). Newport Beach shall ensure that all necessary permits are obtained for the excavation work. C. Bid Package. Newport Beach shall prepare a bid package covering Trenching and the construction and installation of the USS. d. Contract. Newport Beach shall prepare and execute a contract ("Contract") with an independent contractor for Trenching and the construction and installation of USS. The terms and conditions of the Contract shall oblige the independent contractor to furnish all materials and adhere to Project plans and specifications (unless Pacific's Regional Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 2 of 9 Manager - Engineering gives prior written consent to a deviation). Newport Beach shall have full supervision of and control over the independent contractor's Trenching and the construction and installation of the USS. However, Pacific shall be given the opportunity to inspect the construction and installation of the USS and to coordinate with Newport Beach to ensure that the construction and installation of the USS are completed in accordance with Project plans and specifications. Newport Beach shall ensure that the cost of any repairs, replacement or relocation of Pacific's damaged facilities caused by Newport Beach's contractor will be paid to Pacific during the duration of the Project unless Pacific authorizes in writing for Newport Beach's contractor to perform the repairs. Time Schedule. Newport Beach shall provide Pacific with a construction time schedule for the Project. Newport Beach shall notify Pacific's Subway Inspector at 714-669-2226 no later than five (5) working days prior to the start of conduit placement. f. Environmental Impact Report. Newport Beach, at no cost to Pacific, shall comply with all applicable Environmental Laws pertaining to the Project, and prepare all environmental impact reports which may be required by any State or federal agency having jurisdiction under Environmental Laws. ii. Newport Beach shall provide Pacific with a copy of all environmental impact reports or soil tests prepared in connection with the Project, and disclose all information concerning Hazardous Waste within the District. C. Work to be Performed by Pacific. 1. Pacific shall procure and install all materials in connection with its utility facilities, but not the Trenching and construction and installation for the USS for which Newport Beach is responsible and provide all engineering work related to the relocation of Pacific's facilities. 2. Pacific shall inspect and approve the USS, constructed by Newport Beach, prior to the transfer of ownership of the USS. Upon acceptance of the USS by Pacific (acceptance form attached hereto as Exhibit B), Pacific will be responsible for all further modifications and/or maintenance of the USS. 3. Pacific shall replace its existing aerial communication facilities with underground facilities, including all pedestals and/or interfaces, when: a. Newport Beach has constructed and installed the USS in the public way and utility rights of way; Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 3 of 9 b. Service to customers within the District has been provided by means of the underground facilities; C. Newport Beach's electric utility has removed its facilities from poles and anchors jointly occupied by Pacific and Newport Beach electric utility; and 4. Pacific shall obtain, if required, CPUC Permits. 5. Pacific shall secure necessary State Highway Crossing Agreements. D. Payment. Pacific's costs for the Project are estimated to be $147,042.52, which includes the estimated cost for the sole trench portion of the project of 143 feet. (Exhibit A). 2. Pacific will pay Newport Beach in advance, a deposit of 50% of the estimated cost, $73,521.26, of the project. Upon completion of the USS by Newport Beach and acceptance by Pacific, Pacific will pay to Newport Beach the balance of Pacific's share of the actual costs for the Project. Pacific's total share of the actual cost for the project is not to exceed $147,042.52 without Pacific's prior written approval. Newport Beach will issue to Pacific an itemized invoice for the balance due upon completion of the project. A check for the balance due will be issued by Pacific to Newport Beach 45 days from the date of Newport Beach's itemized invoice. 3. Pacific will place all cables, wires and complete all wrecking associated with the Project at Pacific's expense. 4. Unless otherwise agreed to in writing, Pacific shall bear the entire cost of all extra work which is requested by and performed for Pacific, but is not required for the Project. Unless otherwise agreed to in writing, if Newport Beach requests extra work that is not required for the Project, Newport Beach shall bear the entire cost of that extra work. 5. Pacific shall be credited with any savings resulting from the omission of Project work falling within its realm of responsibility. On a monthly basis, Newport Beach will send to Pacific an itemized statement detailing the total footage of conduit placed. E. Licenses and Easements. Newport Beach shall grant to Pacific any and all licenses, Joint Use Agreements, easements, and access rights which are necessary to accommodate the Project. Pacific shall not relocate its aerial facilities until the applicable replacement right for each relocation has been executed and/or committed to in writing and presented to Pacific. F. Schedule of Work. Pacific shall have its facilities relocated and in operation contingent upon mutually acceptable schedules, timely obtaining of permits, licenses and other Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 4 of 9 documents, and not being delayed by those uncontrollable forces described in Section III.G of this Agreement. Completion date is subject to Pacific's obtaining receipt of a signed Agreement from Newport Beach by December 201h, 2019 G. Project Delays. Neither Pacific nor Newport Beach shall be responsible for any delays in completing the Project due to Acts of God, the presence of historical artifacts or Hazardous Substances on, in, or near the District, or any other causes beyond Pacific's or Newport Beach's control. H. Liens. Newport Beach, its agents and contractors shall keep the USS free from any statutory or common law lien arising out of any work performed, materials furnished or obligations incurred by Newport Beach, its agents or contractors. Newport Beach agrees to defend, indemnify and hold Pacific harmless from and against any such liens, claims, or actions, together with costs of suit, and reasonable attorneys' fees incurred by Pacific in connection with any such claim or action. In the event a lien is recorded against the USS and it is not removed off record within ten (10) days after notice is given by Pacific to Newport Beach to do so, Pacific shall have the right to pay and discharge the lien without regard to whether the lien shall be lawful, valid or correct. Newport Beach shall, within thirty (30) days after written notice from Pacific, reimburse Pacific for any such claim paid by it. I. Damage to Facilities. Newport Beach, its employees, agents or contractors shall exercise special precaution and care to avoid causing damage to Pacific's facilities in performing work under the Project. Newport Beach shall assume responsibility for any and all losses, costs or expenses arising out of, caused by, or in any way connected with such damages, including consequential damages. Newport Beach shall immediately report the occurrence of any such damage to Pacific. Newport Beach shall, on demand, reimburse Pacific for the actual costs incurred in replacing or repairing the damage. J. Title. Upon the completion of construction to Pacific's satisfaction in accordance with the plans and specifications and acceptance by Pacific's Inspector, title to the USS and any associated communications facilities placed by or for Pacific, shall vest in Pacific, provided that such is free of all liens and encumbrances, and this Agreement shall be deemed as a bill of sale. Acceptance of the USS shall be complete upon execution of a document in the form of the attached Exhibit B by Pacific's Inspector. K. Performance. If Newport Beach should default in the performance of any work which it is obligated to perform under this Agreement within the time allowed for such work, Pacific may, by separate joint written agreement with Newport Beach, perform the work at Newport Beach's sole risk and expense; and Newport Beach shall pay to Pacific upon demand Pacific's actual costs for performing the work. L. Tax Liability. Newport Beach agrees to pay, and to hold Pacific harmless from and against, all penalties, interest, taxes or other charges that may be levied or assessed against Newport Beach as a result of this Agreement, as required by law, rule, regulation, or the Tariff. M. Warranty. Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 5 of 9 I . Newport Beach shall require Newport Beach's contractor for the Project to warrant that all work and materials to be furnished under this Agreement: a. shall conform in all respects to the requirements of this Agreement; b. are adequate for the purposes for which they are intended; C. are free from any defects in design, materials, workmanship and title; and d. are free of defects causing caving or sinking of Trenches, paving or other materials, for a period of one (1) year following acceptance of the USS. 2. All work and materials shall be performed by qualified personnel promptly and with diligence, to Pacific's reasonable satisfaction, and that work and materials shall also be subject to all statutory and express or implied warranties. This warranty shall survive inspection, acceptance, termination and payment. N. Insurance. Without in any way limiting Newport Beach's indemnification obligations as set forth in this Agreement, Newport Beach shall require its contractor for the Project to maintain Comprehensive General Liability (Bodily Injury and Property Damage) Insurance including the following supplementary coverages: 1. Contractual Liability to cover liability assumed under this Agreement; 2. Personal Injury Liability with the "employee" and "contractual" exclusions deleted, and 3. Product and Completed Operations Liability Insurance. The limits of liability for the insurance required above shall not be less than two million dollars ($2,000,000) combined single limit per occurrence. Pacific shall be named as an additional insured with regard to the above insurance coverage. If requested by Pacific at any time, Newport Beach shall provide Pacific with verification by a properly qualified representative of the insurer that Newport Beach's contractor's insurance complies with this section. IV. GENERAL PROVISIONS. A. Assignment. Newport Beach shall not wholly or partially assign this Agreement without the prior written consent of Pacific. This Agreement shall be for the benefit of and is binding upon the respective successors and assigns of the Parties. B. Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing Party shall not be entitled to attorney's fees. C. Entire Agreement. 1. This Agreement and the attached Exhibits, are incorporated herein and constitute the entire Agreement between the Parties with respect to the subject matter. All Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 6 of 9 prior agreements, representations, statements, negotiations and understandings are superseded. 2. Notwithstanding the foregoing, the Parties do not waive and specifically reserve any all rights each Party may have to contest responsibility for paying the cost of relocating and undergrounding Pacific's facilities as set forth in this Agreement subject to final determination from the CPUC of Pacific's legal and financial obligations to underground its facilities, and any appeal thereof at the CPUC, and that no provision of this Agreement prejudices the right of either Party with respect to such final determination. D. Indemnity. Newport Beach shall indemnify, defend and hold harmless Pacific and its officers, agents and employees, as well as its associated and affiliated companies and their respective officers, agents, and employees ("Idemnitees"), from any losses or liabilities incurred as a result of any injury or death to any persons(s) or damage to any property(ies) arising out of or in connection with the materials used or the work to be performed by Newport Beach under this Agreement, except where such injury, death or damage is caused by the sole negligence or willful misconduct of Indemnitees. Upon the request of Pacific, Newport Beach shall at no cost or expense to Pacific, defend any suit or legal proceeding asserting a claim for losses or liabilities, to the extent that any such suit or legal proceeding claims a loss covered by the terms of this indemnification provision. 2. Pacific shall indemnify, defend and hold harmless Newport Beach, its elected and appointed officers, officials, agents, employees, volunteers, and any person or entity owning or otherwise in legal control of the property upon which Newport Beach performs the Project contemplated by this Agreement ("Idemnitees"), from any losses or liabilities incurred as a result of any injury or death to any persons(s) or damage to any property(ies) arising out of or in connection with the work to be performed by Pacific under this Agreement, except where such injury, death or damage is caused by the sole negligence or willful misconduct of Indemnitees. Upon the request of Newport Beach, Pacific shall at no cost or expense to Newport Beach, defend any suit or legal proceeding asserting a claim for losses or liabilities, to the extent that any such suit or legal proceeding claims a loss covered by the terms of this indemnification provision. E. Independent Contractor. Newport Beach, its agents, employees and contractors shall perform all work under this Agreement as independent contractors and not as affiliates, partners, joint ventures, agents, employees, servants or assigns of Pacific. F. Jurisdiction. This Agreement is subject to the applicable rules, regulations and tariffs on file with the CPUC and is also subject to changes or modifications as the CPUC may order. Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 7 of 9 G. Notices. All notices or other communications hereunder are deemed given when made in writing and either: 1. delivered in person; 2. delivered to an agent, such as an overnight or similar delivery service; or 3. deposited in the United States mail, postage prepaid and addressed as follows: To: City of Newport Beach Public Works Department Attention: Public Works Director 100 Civic Center Drive Newport Beach, CA 92660 To: Pacific Bell Telephone Company 3939 E. Coronado St., 2nd Flr Anaheim, CA 92807 Attention: David Bell, Manager H. Non -Discrimination. Newport Beach shall comply with all federal laws and associated regulations which are now in force or as may be amended in the future, which are attached hereto as Exhibit C. As used in Exhibit C, "Contractor" means Newport Beach. I. Term. This Agreement is effective upon execution and shall continue in effect until completion of the Project, termination or cancellation, as provided by law or this Agreement. J. Termination. This Agreement automatically terminates upon completion of the Project. In the event of any material default or breach of this Agreement by Newport Beach or Pacific, in addition to all other rights and remedies which the non -defaulting or non - breaching party may have at law or in equity, the non -defaulting or non -breaching party shall have the immediate right to terminate this Agreement by giving thirty (30) days prior written notice of termination. The notice shall specify the cause of termination and shall give the party in default or breach of the Agreement a reasonable opportunity to cure and correct any such cause. In the event this Agreement is terminated or suspended as provided herein, non -defaulting or non -breaching party shall not be liable to the party in default or breach of the Agreement or any other person or entity for any losses, damages or claims which may arise as a result of termination. The party in default or breach of the Agreement shall pay to the non -defaulting or non -breaching party any costs or expenses incurred by the non -defaulting or non -breaching party prior to termination of this Agreement. Any termination of this Agreement in whole or in part shall not release the party in default or breach of the Agreement from any liability or obligation under this Agreement, whether for indemnity or otherwise, which may have accrued or which may be accruing or which arises out of any claim that may have accrued or may be accruing at the time of termination. Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 8 of 9 K. Waiver and Amendment. The provisions of this Agreement shall not be waived, altered, or amended by any representations or promises of either Party unless consented to in writing by both Parties. The duly authorized representatives of the Newport Beach and Pacific have executed this Agreement by affixing their signatures on the dates indicated below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: (),/13 /�J. By: Aaron C. Harp City Attorney ATTEST: Date: /�.��,l� rNV6�-�� Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: 12- By: 2 By: Gra96)<. Leung Cit anager PACIFIC BELL TELEPHONE COMPANY dba AT&T CALIFORNIA Date: 1 I 12,11 By: Davi Bell Area Manager, Engineering Agreement for Replacement of Overhead with Underground Electrical Facilities Between Pacific Bell and the City of Newport Beach Page 9 of 9 Exhibit A Newport W UUd- _ - - Description Unit My Unit Price Line Total tem 17,343.33 $ 1 J Joint Trench - Edison, Spectrum, AT&T LF 473 $ 110.00 $ 52,030.00 2 J Joint Trench - Edison, Spectrum LF 829 $ 110.00 $ 91,190.00 3 J Joint Trench -Spectrum, ATT&T LF 44 $ 110.00 $ 4,840.00 4 E SCE Only Trench LF 1,577 $ 100.00 $ 157,700.00 5 A AT&T Trench Only LF 143 $ 80.00 $ 11,440.00 6S 0 Spectrum Trench Only LF 190 $ 70.00 $ 13,300.00 7 E SCE 5" DB100 LF 1,914 $ 6.00 $ 11,484.00 8 E SCE 4" DB100 LF 234 $ 6.00 $ 1,404.00 9 E SCE 3" Sch 40 LF 3,882 $ 5.00 $ 19,410.00 10 E SCE 7X18X8 Vault EA 5 $ 86,500.00 $ 432,500.00 11 E SCE 7X12X8 Vauit EA 2 $ 60,500.00 $ 121,000.00 12 E SCE 17"x30"x24" Traffic Pull Box EA 17 $ 2,500.00 $ 42,500.00 13 E SCE Concrete Pad EA 1 $ 4,830.00 $ 4,830.00 14 A AT&T 4" Sch 40 LF 1,310 $ 5.50 $ 7,205.00 15 A AT&T 2" Sch 40 LF 297 $ 2.90 $ 861.30 16 A AT&T 4'5"x8'5"x6'5" Manhole $ - $ - 17 A AT&T 2'x3'xV Traffic Pull Box EA 7 $ 3,480.00 $ 24,360.00 18 5 Spectrum 3" Sch 40 LF 7,919 $ 5.00 $ 39,595.00 195 Spectrum 1" Sch 40 LF 434 $ 2.40 $ 1,041.60 20S Spectrum 2'x3' Pull Box EA 5 $ 3,480.00 $ 17,400.00 215 Spectrum 17"x30" Pull Box EA 28 $ 2,100.00 $ 58,800.00 22 J Asphalt Restoration LF 7,317 $ 11.20 $ 81,950.40 23 J Mobilization LS 1 $ 146,867.21 $ 146,867.21 24 J De -Watering LS 1 $ 350,000.00 $ 350,000.00 25IJ Traffic Control LS 1 $ 50,ODO.00 $ 50,000.00 26IJ I Survey Allowance L I $ 60,ODO.00 $ 60,000.00 onfidential Total: $ 1,801,708.51 4/1/2019 440A 440A 120A Edison I spectrum I ATT $ 17,343.33 $ 17,343.33 $ 17,343.33 $ 45,595.00 $ 45,595.00 0 0 $ 2,420.00 $ 2,420.00 157,700.00 0 0 0 0 $ 11,440.00 0 $ 1:3,300.00 0 $ 11,484.00 0 0 $ 1,404.00 0 0 $ 19,410.00 0 0 $ 432,500.00 0 0 $ 121,000.00 0 0 $ 42,500.00 0 0 $ 4,830.00 0 0 0 0 $ 7,205.00 0 0 $ 861.30 0 0 $ 0 0 $ 24,360.00 0 $ 39,595.00 0 0 $ 1,041.60 0 0 $ 17,400.00 0 0 $ 58,800.00 0 $ 36,013.28 $ 36,01.3.28 $ 9,923.85 $ 64,541.11 $ 64,541.11 $ 17,784.99 $ 153,808.24 $ 153,808.24 $ 42,383.51 $ 21,972.61 $ 21,972.61 $ 6,054.79 $ 26,367.13 $ 26,367.13 $ 7,265.75 $ 1,156,468.70 $ 498,197.30 $ 147,042.52 AD UUD-PHI - Balboa from PCH to 36t ® EDISON PLAPaS Trench SCE Only F SCE and Spectrum LF SCE + Spectrum 4' ATT LF Spectrum Only LF ATT +Spectrum LF ATT Only LF ATT PLANS LF Spectrum Plans -LF Total % of Total Tre % of Joint Tre Total LF Sheet 2 of 9 Sheet 3 of 9 Sheet 4 of 9 Sheet 5 of 9 Sheet 6 of 9 Sheet 7 of 9 Sheet 8 of 9 Sheet 9 of 9 49% 44910 1,577 706 453 159 46 20 163 0 30 15, 829 290 118 135 0 104 95 0 87 15% 473 59 126 37 67 73 111 0 0 6% 44°% 190 190 1% 44 44 O% 12% 0 Totals By Sheet 1055 887 331 157 197 369 0 117 4% 143 0% Note: Spectrums mainline on Balboa is being constructed by Cable Corr, j2,83O LF) 100% 3,256 Exhibit B November 201h, 2019 City of Newport Beach Public Works Department 100 Civic Center Drive Newport Beach, CA 92660 Attention: David A. Webb, Public Works Director Job Reference: Underground Utility District No. 22a, Balboa Boulevard between West Coast Highway and 22nd Street, including Court Street between 21St and 201h Streets Pacific Bell Job No. LE(19)AOOFR6S Gentlemen: This Letter of Acceptance provides written notice that the Underground Supporting Structure ("USS") relating to the above -referenced project has been inspected and accepted by Pacific Bell's Inspector. Pursuant to Section III(J) of the Agreement for Replacement of Overhead with Underground Communication Facilities between the City of Newport Beach ("Newport Beach") and Pacific Bell Telephone Company dba AT&T California ("Pacific") dated and duly executed below by Pacific's authorized representative, this letter shall be deemed as a "Bill of Sale" thereby transferring ownership of the USS (as defined in said agreement) to Pacific, free and clear of any and all liens, claims and encumbrances. ACCEPTED BY: CHRIS CASTANEDA PACIFIC SUBWAY INSPECTOR DATE: Exhibit C Executive Orders and Associated Regulations Pacific Bell and Nevada Bell, as common carriers of telecommunications services, engage in work as contractors for various departments and agencies of the United States Government. Also, certain facilities may be constructed pursuant to federally assisted construction programs. Because of the foregoing, work under this contract may be subject to the provisions of certain Executive Orders, federal laws and associated regulations. To the extent that such Executive Orders, federal laws and associated regulations apply to the work under this contract, and only to that extent, Contractor agrees to comply with the provisions of all such Executive Orders, federal laws and associated regulations as no in force or as may be amended in the future, including, but not limited to the following: 1. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS. In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. § 60-1.4, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of nonexempt contracts and subcontracts. 2. CERTIFICATION OF NONSEGREGATED FACILITIES. In accordance with Executive Order 11246, dated September 24, 1965, and 41 C.F.R. § 60-1.8, Contractor certifies that it does not and will not maintain or provide for its employees any facilities segregated on the basis of race, color, religion, sex, or national origin at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control, where such segregated facilities are maintained. The term "facilities" as used herein means waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, provided that separate or single -user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. Contractor will obtain similar certifications from proposed subcontractors prior to the award of any nonexempt subcontract. 3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM. Contractor certified that it has developed and is maintaining an Affirmative Action Plan as required by 41 C.F.R. § 60-1.40. 4. CERTIFICATION OF FILING. Contractor certifies that it will file annually, on or before the 31 st of March, complete and accurate reports on Standard Form 100 (EEO -1) or such forms as may be promulgated in its place as required by 41 C.F.R. § 60-1.7. 5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA. In accordance with Executive Order 11701, dated January 24, 1973, and 41 C.F.R. 60-250.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of Government contracts and subcontracts. 6. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS. In accordance with Executive Order 11758, dated January 15, 1974, and 41 C.F.R. § 60-741.20, the parties incorporate herein by this reference the regulations and contract clauses required by those provisions to be made a part of Government contracts and subcontracts. 7. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS CONCERNS. 48 C.F.R., Ch. 1, § 19.740(4) and 19.708(a) require that the following clause is included: Utilization of Small Business concerns and Small Disadvantaged Business Concerns (June, 1985) (a) It is the policy of the United States that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in performing contracts let by and Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals. (b) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the Contractor's compliance with this clause. (c) As used in this contract, the term "small business concern" shall mean a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. The term "small business concern owned and controlled by socially and economically disadvantaged individuals" shall mean a small business concern: (1) Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned businesses, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and (2) Whose management and daily business operations are controlled by one or more of such individuals. The Contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian -Pacific Americans, Asian -Indian Americans and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act. (d) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as either a small business concern or a small business concern owned and controlled by socially and economically disadvantaged individuals. Small Business and Small Disadvantaged Business Subcontracting Plan. Contractor, unless it is a small business concern, as defined in section 3 of the Small Business Act, agrees to adopt and comply with a small business and small disadvantaged business subcontracting plan, which shall be included in and made a part of this contract. The parties incorporate herein by this reference the regulations and contract clauses required by 48 C.F.R., Ch. 1, §§ 19.704(4) and 19.708(b) to be made a part of Government contracts and subcontracts. 8. WOMEN -OWNED SMALL BUSINESSES. As prescribed in 48 C.F.R., Ch. 1, § 19.902, the following clause is included in solicitations and contracts when the contract amount is expected to be over the small purchase threshold, unless (a) the contract is to be performed entirely outside the United States, its possessions, Puerto Rico, and the Trust Territory of the Pacific Islands, or (b) a personal services contract is contemplate: (a) "Woman -owned small businesses," as used in this clause, means businesses that are at least 51 percent owned by women who are United States citizens and who also control and operate the business. "Control," as used in this clause, means exercising the power to make policy decisions. "Operate," as used in this clause, means being actively involved in the day-to-day management of the business. (b) Policy. It is the policy of the Government to award contracts to concerns that agree to perform substantially in labor surplus areas (LSA's) when this can be done consistent with the efficient performance of the contract and at prices no higher than are obtainable elsewhere. The Contractor agrees to use its best efforts to place subcontracts in accordance with this policy. (c) Order of Preference. In complying with paragraph (b) above and with paragraph (c) of the clause of this contract entitled Utilization of Small Business Concerns and Small Disadvantaged Business Concerns, the Contractor shall observe the following order of preference in awarding subcontracts: (1) small business concerns that are LSA concerns, (2) other small business concerns, and (3) other LSA concerns. (d) Definitions. "Labor surplus area," as used in this clause, means a geographical area identified by the Department of Labor in accordance with 20 C.F.R. § 654, Subpart A, as an area of concentrated unemployment or underemployment or an area of labor surplus. "Labor surplus area concern," as used in this clause, means a concern that together with its first-tier subcontractors will perform substantially in labor surplus areas. Performance is substantially in labor surplus area if the costs incurred under the contract on account of manufacturing, production, or performance of appropriate services in labor surplus areas exceed 50 percent of the contract price. Labor Surplus Area Subcontract Program. (a) See the Utilization of Labor Surplus Area Concerns clause of this contract for applicable definitions. (b) The Contractor agrees to establish and conduct a program to encourage labor surplus area (LSA) concerns to compete for subcontracts within their capabilities at prices no higher than obtainable elsewhere. The contractor shall -- (1) Designate a liaison officer who will (i) maintain liaison with authorized representatives of the Government on LSA matters, (ii) supervise compliance with the Utilization of Labor Surplus Area Concerns clause, and (iii) administer the Contractor's labor surplus area subcontracting program; (2) Provide adequate and timely consideration of the potentialities of LSA concerns in all make -or -buy decisions; (3) Ensure that LSA concerns have an equitable opportunity to compete for subcontracts, particularly by arranging solicitations, time for the preparation of offers, quantities, specifications, and delivery schedules so as to facilitate the participation of LSA concerns; (4) include the Utilization of Labor Surplus Area Concerns clause in subcontracts that offer substantial LSA subcontracting opportunities; and (5) Maintain records showing (i) the procedures adopted and (ii) the Contractor's performance, to comply with this clause. The records will be kept available for review by the Government until the expiration of 1 year after the award of this contract, or for such longer period as may be required by any other clause of this contract or by applicable law or regulations. (c) The Contractor further agrees to insert in any related subcontract that may exceed $500,000 and that contains the Utilization of Labor Surplus Area Concerns clause, terms that conform substantially to the language of this clause, including this paragraph (c), and to notify the Contracting Officer of the names of subcontractors.