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HomeMy WebLinkAbout10121RESOLUTION NO. 10121 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE UNITED STATES OF AMERICA, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 _ A certain Lease Agreement, a copy of which is attached hereto and made a part hereof by reference, after having been approved as to form by the City Attorney, by and between the City of Pueblo, a Municipal Corporation, and the United States of America, relating to the lease of office and related space in the terminal building at the Pueblo Memorial Airport is hereby approved, subject to the conditions as set forth in said Lease Agreement. SECTION 2. The President of City Council is hereby authorized to execute said Lease Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. INTRODUCED May 24, 2004 m Michael Occhiato ATTESTED ': Rt., Councilperson PRESI E I Background Paper for Proposed RESOLUTION �� ii 10121 AGENDA ITEM # 3 DATE: May 24, 2004 DEPARTMENT: AVIATION - DANIEL E. CENTA, P.E. TITLE A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE UNITED STATES OF AMERICA, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve a Lease Agreement between the City of Pueblo and the United States of America for office and related space at the Pueblo Memorial Airport. RECOMMENDATION Approval of this Resolution. BACKGROUND After September 11, 2001, the federal government mandated that federal employees through the Transportation Security Administration (TSA) perform the screening of passengers at all commercial airports. In November 2002, the TSA placed employees at the Pueblo Memorial Airport to fulfill this mandate. Since that time, the TSA has operated under a Right of Entry Agreement until a Lease Agreement could be negotiated. This resolution is to approve the negotiated Lease Agreement for office and related space in the terminal building. FINANCIAL IMPACT The Lease Agreement is for a 5 -year term to begin upon the execution of the lease and consists of 610 square feet of space at $21.93 per square foot per annum for the first 24 months of the lease and $16.50 per square foot per annum for the remaining 36 months of the lease. This amounts to $13,377.30 annually for the first 2 years and $10,065.00 annually for the last 3 years. The rent is higher for the first 24 months to reimburse the City $6,625.00 in required alterations to the leased area. Pueblo Memorial Airport TSA Lease PUEBLO MEMORIAL AIRPORT LEASE AGREEMENT A Lease Agreement entered into this 24th day of May 2004, between the City of Pueblo, a Municipal Corporation, herein called "Lessor" and the United States of America, acting by and through the designated representative of the General Services Administration, herein called "Lessee ", WITNESSETH That in consideration of the payment of rent hereinafter provided and the keeping and performance of each of the covenants and agreements of said Lessee hereinafter set forth, said Lessor has and does hereby lease unto the said Lessee the following described premises situated in the Terminal Building at the Pueblo Memorial Airport, hereinafter called "Airport", in the County of Pueblo, State of Colorado to -wit: Approximately 610 square feet of office and related space in the Terminal Building. To have and hold the same unto the said Lessee for a term of five (5) years commencing on May 24, 2004 subject to cancellation of the lease on or after May 25, 2006 upon 30 days prior written notice to the Lessor, at and for a rental of $21.93 per square foot per annum for the first twenty -four (24) months of the lease term and for a rental of $16.50 per square foot per annum for the last thirty -six (36) months of the lease term. Government payment is set forth in General Clause 22, 552.232 -75, titled 'Prompt Payment ". RIGHTS AND PRIVLEGES OF LESSEE A. Lessee shall use the leased premises for security screening and duties set forth by the TSA. Lessee shall not assign nor sublet the leased premises or any part thereof without the prior written approval of Lessor. B. Except as may be specifically authorized herein to the contrary, Lessee shall not without the prior written approval of the Director of Aviation make improvements, modifications, revisions, installation of signs or other alterations to the leased premises. Costs of approved improvements, modifications, revisions, signs and alterations shall be borne solely by Lessee and all such improvements, modifications, revisions or alterations shall, upon expiration of original term or any renewal term or prior termination of this Lease for any reason, become and remain the property of the Lessor. C. Lessee, and its employees and invitees shall have the right of ingress and egress between the main entrance of the Airport as the same now exists or may hereafter be relocated and the leased premises over, upon and through such streets as no other as from time to time shall be designated by the Director of Aviation. Driveways from existing streets to the leased premises shall be located as designated by the Director of Aviation. Pueblo Memorial Airport TSA Lease RIGHTS AND PRIVLEGES OF LESSOR 2 A. All rights not herein granted to the Lessee are reserved to the Lessor and nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958. B. Lessor acknowledges that the unique security requirements of the contemplated use of the leased premises preclude Lessor's retention of unrestricted access to the premises. Lessor, its agents, or representatives shall be permitted to inspect the same at any reasonable hour, upon at least 24 hours notice and approval by the tenant Federal agency. C. It is further understood and agreed that this Agreement is subject to the written approval of the Federal Aviation Administration and that the provisions hereof cannot be modified without prior written approval by said Federal Aviation Administration. 552.270 -6 — MAINTENANCE OF BUILDING AND PREMISES — RIGHT OF ENTRY (SEP 1999) A. Except in case of damage arising out of the willful act or negligence of a Government employee or arising out of fire or other casualty, Lessor shall maintain the premises, including the building, building systems, and all equipment, fixtures and appurtenances furnished by the Lessor under this Lease in good repair and condition so that they are suitable in appearance and capable of supplying such heat, air conditioning, lighting, ventilation, safety systems, access and other things to the premises, without reasonably preventable or recurring disruption, as is required for the Government's access to, occupancy, possession, use and enjoyment of the premises as provided in the lease. For the purpose of maintaining the premises, the Lessor may, at reasonable times, enter the premises with the approval of the authorized Government representative in charge. OBLIGATIONS OF THE LESSOR A. Lessor shall furnish heat, air conditioning and lighting on said premises. Janitorial services, utilities, and maintenance shall be provided by the Lessor as part of the rental consideration. The Lessor shall have a building superintendent or a locally designated representative available to promptly correct deficiencies. BUILDING SHELL 1. Temperatures shall be maintained at 72 degrees, plus or minus 6 degrees. These temperatures shall be maintained throughout the leased premises and service areas, regardless of outside temperatures, during the hours of operation specified in the lease. 2. Simultaneous heating and cooling are not permitted. 3. Ductwork Re -use and Cleaning. If black dust (exhaust excrement) builds near air vents and creates an unsafe working environment, the HVAC duct system shall be cleaned at a cost to the Lessor. Pueblo Memorial Airport TSA Lease K 4. Insulation. All insulation shall contain recovered materials as required by EPA's CPG and related recycled content recommendations. 5. The Lessor shall conduct HVAC system balancing after any HVAC system alterations during the term of the lease and shall make a reasonable attempt to schedule major construction outside of office hours. VENTILATION 1. During working hours in periods of heating and cooling, ventilation shall be provided in accordance with the latest edition of ANSFASHRAE Standard 62, Ventilation for Acceptable Indoor Air Quality. 2. Air filtration shall be provided and maintained with filters having a minimum efficiency rating as determined by ANSI/ASHRAE Standard 52.2, Method of Testing General Ventilation Air Cleaning Devices for Removal Efficiency by Particle Size. Pre - filters shall be 30 percent to 35 percent efficient. Final filters shall be 80 percent to 85 percent efficient for particles at 3 microns. B. The Lessor shall provide janitorial services for the leased space, public areas, entrances, and all other common areas and shall provide replacement of janitorial supplies. The Lessor shall maintain the leased premises, including outside areas, in a clean condition and shall provide supplies and equipment. The following schedule describes the level of services intended. Performance will be based on the Contracting Officer's evaluation of results, not the frequency or method of performance. Three (3) Times Weekly. Empty trash receptacles, and clean ashtrays. Sweep entrances, lobbies, and corridors. Spot sweep floors, and spot vacuum carpets. Clean drinking fountains. Sweep and damp mop or scrub toilet rooms. Clean all toilet fixtures, and replenish toilet supplies. Dispose of all trash and garbage generated in or about the building. Wash inside and out or steam clean cans used for collection of food remnants from snack bars and vending machines. Dust horizontal surfaces that are readily available and visibly require dusting. Spray buff resilient floors in main corridors, entrances, and lobbies. Remove carpet stains. Police sidewalks, parking areas, and driveways. Clean glass entry doors to the Government demised area. 2. Weekly. Damp mop and spray buff all resilient floors in toilets and health units. Sweep sidewalks, parking areas, and driveways (weather permitting). 3. Monthly. Thoroughly dust furniture. Completely sweep and/or vacuum carpets. Sweep storage space. Spot clean all wall surfaces within 70 inches of the floor. 4. Every Two (2) Months. Damp wipe toilet wastepaper receptacles, stall partitions, doors, windowsills, and frames. 5. Every Three (3) Months. Spray buff resilient floors in secondary corridors, entrance, and lobbies. Damp mop and spray buff hard and resilient floors in office space. Pueblo Memorial Airport TSA Lease 4 6. Every Four (4) Months. Dust wall surfaces within 70 inches of the floor, vertical surfaces and under surfaces. Clean metal and marble surfaces in lobbies. 7. Every Six (6) Months. Wash all interior and exterior windows and other glass surfaces. 8. Annually. Wash all venetian blinds, and dust 6 months from washing. Vacuum or dust all surfaces in the building of 70 inches from the floor, including light fixtures. Shampoo carpets in leased space. 9. Every Two (2) Years. Shampoo carpets in all offices. 10. As Required. Properly maintain plants and lawns. Remove snow and ice from entrances, exterior walks, and parking lots of the building. Provide initial supply, installation, and replacement of light bulbs, tubes, ballasts, and starters. Replace worn floor coverings (this includes the moving and returning of furnishings). Control pests, as appropriate. C. Lessor shall make any initial alterations required by Lessee, which do not exceed $6,625.00, and approved by Lessor, the cost of which shall be reimbursed to Lessor as additional rent over the first twenty -four (24) months of the lease. GENERAL CONDITIONS A. The terms and conditions of this Lease and Lessee's rights hereunder are hereby made subject to the provisions of Title III Chapter 1 of the 1971 Code of Ordinances of the City of Pueblo and as same may be subsequently amended. In the event of conflict between said Code of Ordinances and any provisions herein, said Code shall control. B. Lessee shall furnish its services and accommodations on a fair, equal, and not unjustly discriminating basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminating prices for each unit or service, provided that the Lessee may be permitted to make reasonable and non - discriminatory discounts, rebates or other similar price reduction to employees or volume purchasers. C. The Lessee by accepting this Lease expressly agrees for itself, its successors, and assigns that it will not make use of the leased premises in any manner which might interfere with landing and taking off aircraft from Pueblo Memorial Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the premises hereby leased and cause the abatement of such interference at the expense of the Lessee. D. This Lease and all the provisions hereof are subject to all rights the United States Government now has, or in the future may have, or acquire, affecting the control, operation, regulation, re -entry upon and taking over the said Airport including the leased premises. E. To the extent consistent with applicable law, the Lessee shall observe faithfully all rules and regulations affecting use of the Airport, whether established by the Director of Aviation, by the City or other political subdivision having jurisdiction, by the State of Colorado or the Pueblo Memorial Airport TSA Lease 5 United States, or agencies thereof, including but not limited to rules affecting the operation of motor vehicles upon, to and from the Airport. F. The following Government Lease Clauses, as printed in the attached Form 3517b Lease Clause Form, are incorporated herein by reference. Clauses not specifically cited in this paragraph are not incorporated into this Lease. 16 552.270 -22 Default by Lessor During the Term 17 552.270 -7 Fire and Casualty Damage 22 552.232 -75 Prompt Payment 23 552.232 -76 Electronic Funds Transfer Payment (Variation) 24 552.232 -70 Invoice Requirements 25 52.232 -23 Assignment of Claims 26 552.270 -20 Payment (Variation) 29 52.223 -6 Drug Free Workplace 32 552.270 -13 Proposals for Adjustment 33 552.270.14 Changes (Variation) 34 552.215 -70 Examination of Records by GSA 35 52.215 -2 Audits and Records — Negotiation 36 52 -233.1 Disputes 39 52- 222 -21 Prohibition of Segregated Facilities 42 52.222 -37 Employment Reports on Disabled Veterans and Veterans of the Vietnam Era 43 52 -209 -6 Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment 44 52- 215 -12 Subcontractor Cost or Pricing Data 47 52.219 -16 Liquidated Damages — Subcontracting Plan DEFAULT HOLDOVER AND NON - PERFORMANCE CONDITIONS A. If, after the expiration of the term of this Lease, Lessee shall remain in possession of the leased premises and continue to pay rent without any express written agreement as to such holding over, then Lessee agrees that all terms and covenants of this Lease shall remain in effect, except that Lessee shall be a tenant from month to month at a monthly rental equal to that of the rent for the last month payable hereunder. B. Should Lessee default on any obligation specified herein, Lessor shall be entitled to terminate this Lease, provided that Lessor gives written notice to Lessee of the specific circumstances of alleged default and affords the Lessee a reasonable period of time, no less than sixty (60) days, to cure such default. Lessor's right of termination shall in no way impair the Government's right to the exercise of eminent domain, or the exercise of its rights under the Changes clause specified elsewhere in this Lease. C. That in case said premises are left vacant and any part of the rent herein reserved to be due and unpaid, then the Lessor may, without in anywise being obligated to do so, and without terminating this Lease, retake possession of said premises and rent the same for such rent, and upon such conditions as the Lessor may think best, making such changes and repairs as may be required, giving credit for the amount of rent so received less all expenses of such Pueblo Memorial Airport TSA Lease 3 changes and repairs, and said Lessee shall be liable for the balance of the rent herein reserved until the conclusion of the firm term (24 months). MISCELLANEOUS PROVISIONS A. That no assent, expressed or implied, to any breach of any one or more of the covenants and agreements hereof, shall be deemed or taken to be a waiver of any succeeding or other breach. B. That all covenants and agreements in this Lease contained shall be binding upon and inure to the benefit of the heirs, successors, assigns and legal representatives of said Lessor and Lessee. Executed in Pueblo, Colorado, the day and year first above written. ATTEST: LESSOR: City of Pueblo, a Municipal Corporation � M B y: &�-" 2� Rand Thurston President of the City Council APPROVED AS TO FORM: City Attorney LESSEE: Government of the United States of America Contracting Officer GENERAL CLAUSES (Acquisition of Leasehold Interests in Real Property) CATEGORY Cla use No 48 CFR Re Clause Title DEFINITIONS 1 552.270 -4 Definitions GENERAL 2 552.270 -5 Subletting and Assignment 3 552.270 -11 Successors Bound 4 552.270 -23 Subordination, Nondisturbance and Attornment 5 552.270 -24 Statement of Lease 6 552.270 -25 Substitution of Tenant Agency 7 552.270 -26 No Waiver 8 552.270 -27 Integrated Agreement 9 552.270 -28 Mutuality of Obligation PERFORMANCE 10 552.270 -17 Delivery and Condition 11 552.270 -18 Default in Delivery - Time Extensions (Variation) 12 552.270 -19 Progressive Occupancy 13 552.270 -21 Effect of Acceptance and Occupancy 14 552.270 -6 Maintenance of Building and Premises -Right of Entry 15 552.270 -10 Failure in Performance 16 552.270 -22 Default by Lessor During the Term 17 552.270 -7 Fire and Casualty Damage 18 552.270 -8 Compliance with Applicable Law 19 552.270 -12 Alterations 20 552.270 -29 Acceptance of Space INSPECTION 21 552.270 -9 Inspection -Right of Entry PAYMENT 22 552.232 -75 Prompt Payment 23 552.232 -76 Electronic Funds Transfer Payment (Variation) 24 552.232 -70 Invoice Requirements 25 52.232 -23 Assignment of Claims 26 552.270 -20 Payment (Variation) STANDARDS OF 27 552.203 -5 Covenant Against Contingent Fees CONDUCT 28 52.203 -7 Anti- Kickback Procedures 29 52.223 -6 Drug -Free Workplace ADJUSTMENTS 30 552.203 -70 Price Adjustment for Illegal or Improper Activity 31 52.215 -10 Price Reduction for Defective Cost or Pricing Data 32 552.270 -13 Proposals for Adjustment 33 552.270 -14 Changes (Variation) AUDITS 34 552.215 -70 Examination of Records by GSA 35 52.215 -2 Audit and Records - Negotiation DISPUTES 36 52.233 -1 Disputes INITIALS: _ Kr & _ LESSOR GOVERNMENT GSA FORM 35178 PAGE 1 (REV 9/01) LABOR STANDARDS 37 52.222 -26 Equal Opportunity 38 52.222 -24 Preaward On -Site Equal Opportunity Compliance Evaluation 39 52.222 -21 Prohibition of Segregated Facilities 40 52.222 -35 Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era 41 52.222 -36 Affirmative Action for Workers with Disabilities 42 52.222 -37 Employment Reports on Disabled Veterans and Veterans of the Vietnam Era SUBCONTRACTING 43 52.209 -6 Protecting the Government's Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment 44 52.215 -12 Subcontractor Cost or Pricing Data 45 52.219 -8 Utilization of Small Business Concerns 46 52.219 -9 Small Business Subcontracting Plan 47 52.219 -16 Liquidated Damages- Subcontracting Plan INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 2 (REV 9/01) GENERALCLAUSES (Acquisition of Leasehold Interests in Real Property) 1. 552.270 -4 - DEFINITIONS (SEP 1999) The following terms and phrases (except as otherwise expressly provided or unless the context otherwise requires) for all purposes of this lease shall have the respective meanings hereinafter specified: (a) "Commencement Date" means the first day of the term. (b) "Contract" and "Contractor" means "Lease" and "Lessor," respectively. (c) "Contracting Officer" means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the Contracting Officer acting within the limits of their authority as delegated by the Contracting Officer. (d) Delivery Date" means the date specified in or determined pursuant to the provisions of this lease for delivery of the premises to the Government, improved in accordance with the provisions of this lease and substantially complete, as such date may be modified in accordance with the provisions of this lease. (e) "Delivery Time" means the number of days provided by this lease for delivery of the premises to the Government, as such number may be modified in accordance with the provisions of this lease. (f) "Excusable Delays" mean delays arising without the fault or negligence of Lessor and Lessor's subcontractors and suppliers at any tier, and shall include, without limitation, (1) acts of God or of the public enemy, (2) acts of the United States of America in either its sovereign or contractual capacity, (3) acts of another contractor in the performance of a contract with the Government, (4) fires, (5) floods, (6) epidemics, (7) quarantine restrictions, (8) strikes, (9) freight embargoes, (10) unusually severe weather, or (11) delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Lessor and any such subcontractor or supplier. (g) "Lessor" means the sub - lessor if this lease is a sublease. (h) "Lessor shall provide" means the Lessor shall furnish and install at Lessor's expense. (i) "Notice" means written notice sent by certified or registered mail, Express Mail or comparable service, or delivered by hand. Notice shall be effective on the date delivery is accepted or refused. (j) "Premises" means the space described on the Standard Form 2, U.S. Government Lease for Real Property, of this lease. (k) "Substantially complete" and "substantial completion" means that the work, the common and other areas of the building, and all other things necessary for the Government's access to the premises and occupancy, possession, use and enjoyment thereof, as provided in this lease, have been completed or obtained, excepting only such minor matters as do not interfere with or materially diminish such access, occupancy, possession, use or enjoyment. (1) "Work" means all alterations, improvements, modifications, and other things required for the preparation or continued occupancy of the premises by the Government as specified in this lease. 252. SUBLETTING AND E T (SEP 1999) he GoverrKment may et arty part of t premises but shall n t be reli ved from an ga under this I'ease b�reason of any such bletting: The Government y at an a assign lease, and be rrelieved from all ob(tgal� so ns to Lessor under this leas excepting only unpaic and other liWfities, if - ariy, that have acdrue the date of said assignment . Any assignment be subjecob prior written consent of Lessor, which shall not unreiia6ably withheld. 3. 552.270 -11 SUCCESSORS BOUND (SEP 1999) This lease shall bind, and inure to the benefit of, the parties and their respective heirs, executors, administrators, successors, and assigns. INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 3 (REV 9101) 4. 552.270 -23 - SUBORDINATION, NON DISTURBANCE AND ATTORNMENT (SEP 1999) (a) Lessor warrants that it holds such title to or other interest in the premises and other property as is necessary to the Government's access to the premises and full use and enjoyment thereof in accordance with the provisions of this lease. Government agrees, in consideration of the warranties and conditions set forth in this clause, that this lease is subject and subordinate to any and all recorded mortgages, deeds of trust and other liens now or hereafter existing or imposed upon the premises, and to any renewal, modification or extension thereof. It is the intention of the parties that this provision shall be self - operative and that no further instrument shall be required to effect the present or subsequent subordination of this lease. Government agrees, however, within twenty (20) business days next following the Contracting Officer's receipt of a written demand, to execute such instruments as Lessor may reasonably request to evidence further the subordination of this lease to any existing or future mortgage, deed of trust or other security interest pertaining to the premises, and to any water, sewer or access easement necessary or desirable to serve the premises or adjoining property owned in whole or in part by Lessor if such easement does not interfere with the full enjoyment of any right granted the Government under this lease. (b) No such subordination, to either existing or future mortgages, deeds of trust or other lien or security instrument shall operate to affect adversely any right of the Government under this lease so long as the Government is not in default under this lease. Lessor will include in any future mortgage, deed of trust or other security instrument to which this lease becomes subordinate, or in a separate nondisturbance agreement, a provision to the foregoing effect. Lessor warrants that the holders of all notes or other obligations secured by existing mortgages, deeds of trust or other security instruments have consented to the provisions of this clause, and agrees to provide true copies of all such consents to the Contracting Officer promptly upon demand. (c) In the event of any sale of the premises or any portion thereof by foreclosure of the lien of any such mortgage, deed of trust or other security instrument, or the giving of a deed in lieu of foreclosure, the Government will be deemed to have attorned to any purchaser, purchasers, transferee or transferees of the premises or any ortion thereof and its or their successors and assigns, and any such purchasers and transferees will be deemed to have assumed all obligations of the Lessor under this lease, so as to establish direct privity of estate and contract between Government and such purchasers or transferees, with the same force, effect and relative priority in time and right as if the lease had initially been entered into between such purchasers or transferees and the Government; provided, further, that the Contracting Officer and such purchasers or transferees shall, with reasonable promptness following any such sale or deed delivery in lieu of foreclosure, execute all such revisions to this lease, or other writings, as shall be necessary to document the foregoing relationship. (d) None of the foregoing provisions may be deemed or construed to imply a waiver of the Government's rights as a sovereign. 5. 552.270 -24 - STATEMENT OF LEASE (AUG 1999) (a) The Contracting Officer will, within thirty (30) days next following the Contracting Officer's receipt of a joint written request from Lessor and a prospective lender or purchaser of the building, execute and deliver to Lessor a letter stating that the same is issued subject to the conditions stated in this clause and, if such is the case, that (1) the lease is in full force and effect; (2) the date to which the rent and other charges have been paid in advance, if any; and (3) whether any notice of default has been issued. (b) Letters issued pursuant to this clause are subject to the following conditions: (1) That they are based solely upon a reasonably diligent review of the Contracting Officer's lease file as of the date of issuance; (2) That the Government shall not be held liable because of any defect in or condition of the premises or building; (3) That the Contracting Officer does not warrant or represent that the premises or building comply with applicable Federal, State and local law; and (4) That the Lessor, and each prospective lender and purchaser are deemed to have constructive notice of such facts as would be ascertainable by reasonable Prepurchase and precommitment inspection of the Premises and Building and by inquiry to appropriate Federal, State and local Government officials. 6�155 270 -25.- SUBSTITUTtON OF TENANT- AGENCY (SEP -'999) The Government may, at anWtime and from ` time to time, substituteny Gov - aemm agency or agencies for the Government a�ncy or agencies; if any, named ir7the lease. INITIALS: _ .. & _ LESSOR GOVERNMENT GSA FORM 3517B PAGE 4 (REV 9/01) 7. 552.270 -26 - NO WAIVER (SEP 1999) No failure by either party to insist upon the strict performance of any provision of this lease or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent or other performance by either party during the continuance of any such breach shall constitute a waiver of any such breach of such provision. 8. 552.270 -27 - INTEGRATED AGREEMENT (SEP 1999) This Lease, upon execution, contains the entire agreement of the parties and no prior written or oral agreement, express or implied, shall be admissible to contradict the provisions of the Lease. 9. 552.270 -28 - MUTUALITY OF OBLIGATION (SEP 1999) The obligations and covenants of the Lessor, and the Government's obligation to pay rent and other Government obligations and covenants, arising under or related to this Lease, are interdependent. The Government may, upon issuance of and delivery to Lessor of a final decision asserting a claim against Lessor, set off such claim, in whole or in part, as against any payment or payments then or thereafter due the Lessor under this lease. No setoff pursuant to this clause shall constitute a breach by the Government of this lease. 10. 552.270 -17 - DELIVERY AND CONDITION (SEP 1999) Unless the Govern riept elects to have thefspace\occupied in incremeDtsthe space must be delivered ready for oopupancy as a p66mplete unniit. The Govern nt res es the right to determin"hen the space Is substantially completh. (b) I If thepremises do no in ey Oy respect comply writp.415e provisions oft leas the pritracting Officer may, i cordance with the Failure in Performance clause oftiiTlease, `61ect to reduce the rent payments. 11. 552.270 -18 - DEFAULT IN DELIVERY - TIME EXTENSIONS (SEP 1999) (VARIATj N) a) With respect to Lessor's obligation to deliver the premises substantially complete by the delivery date, time is of the essence. If the Lessor fails to work diligently to ensure its substantial completion by the delivery date or fails to substantially complete the work by such date, the Government may by notice to the Lessor terminate this lease. Such termination is effective when received by Lessor. The Lessor and the Lessor's sureties, if y , are jointly and severally liable for any damages to the Government resulting from such ter (nation, as provided in this clause. The Government shall be entitled to the following dam es: (1) The�Government's aggregate rent and estimated real estate tax and operating cost adjustments for the firm term and all option terms,of its replacement lease or leases, in excess, of the aggregate rent and estimated/real estate tax and operating cost adjustmenfs the term. If the Government. p rocures replacement premises for a term (including. all option terms) in excess of this term, the Lessor is not liable for excess Government rent or adjustments during such excess lease term. (2) All administrative and other costs the Government incurs in procuring a replacement lease or leases. (3) Other, additional relief provided for in this lease, at law, or in equity. (b) Damages to which the Government is_ entitled to under this clause are due and payable thirty (30) days following the date Lessor f6ceives notice from the Contracting Officer specifying such damages. (c) Delivery by Lessor of less than the minimum ANSUBOMA Office Area square footage required by this lease shall in no event be construed as substantial completion, except as the Contracting Officer permits. (d) The Government shall not terminate this lease under this clause nor charge the Lessor with damages under this cause, if (1) the delay in substantially completing the work arises from excusable delays and (2) the Lessor within 10 days from the beginning of any such delay (unless extended jn writing by the Contracting Officer) provides notice to the Contracting Officer of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of delay. If the facts warrant, the Contracting Officer shall extend the delivery date, to the extent of such delay at no additional costs to the Government. A-time extension is the sole remedy of the Lessor. INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 5 (REV 9/01) 12. 552.270- 19 -�\ESSIVE OCCUPANCY (SEP 1999) The Government shall - hake the right to elect to occupy the space in partial increments prior to the substantial completion of the - entire leased_, premises, and the Lessor agrees to schedule its work so as to deliver the space incremhentally, as elected by the Government. The Government shall pay rent commencing with the first business day following substantial completion of the entire leased premise unless the Government has elected to occupy the leased premises incrementally. In case of incremental occupancy, -the Govern ment's4aaII pay rent pro rata upon the first business day following substantial completion of each incremental unit. Rental payments shall become due on the first workday, of the month following the month in which an increment of space is substantially complete, except that should an increment of space be saiastantially completed after the fifteenth dg�Lthe month, the payment due date will be the first workday -of the second month following the month in which it was substantially complete. The commencement date of the firm lease term will be a composite determined from all rent commencement dates. 13. 552.270 -21 - EFFECT OF ACCEPTANCE AND OCCUPANCY (SEP 1999) Neither the Government's acceptance of the premises for occupancy, nor the Government's occupancy thereof, shall be construed as a waiver of any requirement of or right of the Government under this Lease, or as otherwise prejudicing the Government with respect to any such requirement or right. 14. 552.270 -6 - MAINTENANCE OF BUILDING AND PREMISES - RIGHT OF ENTRY (SEP 1999) Except in case of damage arising out of the willful act or negligence of a Government employee, Lessor shall maintain the premises, including the building, building systems, and all equipment, fixtures, and appurtenances furnished by the lessor under this lease, in good repair and condition so that they are suitable in appearance and capable of supplying such heat, air conditioning, light, ventilation, safety systems, access and other things to the premises, without reasonably preventable or recurring disruption, as is required for the Government's access to, occupancy, possession, use and enjoyment of the premises as provided in this lease. For the purpose of so maintaining the premises, the Lessor may at reasonable times enter the premises with the approval of the authorized Government representative in charge. 15. 552.270 -10 -FAILURE IN PERFORMANCE (SEP 1999) The covenant to pay rent and the covenant to provide any service, utility, maintenance, or repair required under this lease are interdependent. In the event of any failure by the Lessor to provide any service, utility, maintenance, repair or replacement required under this lease the Government may, by contract or otherwise, perform the requirement and deduct from any payment or payments under this lease, then or thereafter due, the resulting cost to the Government, including all administrative costs. If the Government elects to perform any such requirement, the Government and each of its contractors shall be entitled to access to any and all areas of the building, access to which is necessary to perform any such requirement, and the Lessor shall afford and facilitate such access. Alternatively, the Government may deduct from any payments under this lease, then or thereafter due, an amount which reflects the reduced value of the contract requirement not performed. No deduction from rent pursuant to this clause shall constitute a default by the Government under this lease. These remedies are not exclusive and are in addition to any other remedies which may be available under this lease or at law. 16. 552.270 -22 - DEFAULT BY LESSOR DURING THE TERM (SEP 1999) (a) Each of the following shall constitute a default by Lessor under this lease: (1) Failure to maintain, repair, operate or service the premises as and when specified in this lease, or failure to perform any other requirement of this lease as and when required provided any such failure shall remain uncured for a period of thirty (30) days next following Lessor's receipt of notice thereof from the Contracting Officer or an authorized representative. (2) Repeated and unexcused failure by Lessor to comply with one or more requirements of this lease shall constitute a default notwithstanding that one or all such failures shall have been timely cured pursuant to this clause. (b) If a default occurs, the Government may, by notice to Lessor, terminate this lease for default and if so terminated, the Government shall be entitled to the damages specified in the Default in Delivery-Time Extensions clause. 17. 552.270 -7 - FIRE AND CASUALTY DAMAGE (SEP 1999) If the entire premises are destroyed by fire or other casualty, this lease will immediately terminate. In case of partial destruction or damage, so as to render the premises untenantable, as determined by the Government, the Government may terminate the lease by giving written notice to the Lessor INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 6 (REV 9/01) within 15 calendar days of the fire or other casualty; if so terminated, no rent will accrue to the Lessor after such partial destruction or damage; and if not so terminated, the rent will be reduced proportionately by supplemental agreement hereto effective from the date of such partial destruction or damage. Nothing in this lease shall be construed as relieving Lessor from liability for damage to or destruction of property of the United States of America caused by the willful or negligent act or omission of Lessor. 18. 552.270 -8 - COMPLIANCE WITH APPLICABLE LAW (SEP 1999) Lessor shall comply with all Federal, state and local laws applicable to the Lessor as owner or lessor, or both, of the building or premises, including, without limitation, laws applicable to the construction, ownership, alteration or operation of both or either thereof, and will obtain all necessary permits, licenses and similar items at Lessor's expense. The Government will comply with all Federal state and local laws applicable to and enforceable against it as a tenant under this lease; provided that nothing in this lease shall be construed as a waiver of any sovereign immunity of the Government. This lease shall be governed by Federal law. 19. 552.270 -12 - ALTERATIONS (SEP 1999) The Government shall have the right during the existence of this lease to make alterations, attach fixtures, and erect structures or signs in or upon the premises hereby leased, which fixtures, additions or structures so placed in, on, upon, or attached to the said premises shall be and remain the property of the Government and may be removed or otherwise disposed of by the Government. If the lease contemplates that the Government is the sole occupant of the building, for purposes of this clause, the leased premises include the land on which the building is sited and the building itself. Otherwise, the Government shall have the right to tie into or make any physical connection with any structure located on the property as is reasonably necessary for appropriate utilization of the leased space. 20. 55 9 ACCEPTANCE OF SPAC�(SE�P 1999) (a) Whe the Lessor has completed all alterations, improvements; and repairs necessary to meet the requirements of,the lease, the Lessor shall notii,�v " the Contrasting Officer. The Contracting Officer or designated representative shall pro "tfy inspect the space. (b) The Government wil accept the space and tie lease erm will begin after determining that the space is sub tantially complete and co a required ANSUBOM)0 Office Area square fo s indicated in the paragraph of this solicitation entitled "Amoun"nd Type of Space." ----- 21. 552.270 -9 - INSPECTION - RIGHT OF ENTRY (SEP 1999) (a) At any time and from time to time after receipt of an offer (until the same has been duly withdrawn or rejected), after acceptance thereof and during the term, the agents, employees and contractors of the Government may, upon reasonable prior notice to Offeror or Lessor, enter upon the offered premises or the premises, and to which is necessary to accomplish the purposes of entry, to determine the potential or actual compliance by the Offeror or Lessor with the requirements of the solicitation or this lease, which purposes shall include, but not be limited to: (1) inspecting, sampling and analyzing of suspected asbestos - containing materials and air monitoring for asbestos fibers; (2) inspecting the heating, ventilation and air conditioning system, maintenance records, and mechanical rooms for the offered premises or the premises; (3) inspecting for any leaks, spills, or other potentially hazardous conditions which may involve tenant exposure to hazardous or toxic substances; and (4) inspecting for any current or past hazardous waste operations, to ensure that appropriate mitigative actions were taken to alleviate any environmentally unsound activities in accordance with Federal, State and local law. (b) Nothing in this clause shall be construed to create a Government duty to inspect for toxic materials or to impose a higher standard of care on the Government than on other lessees. The purpose of this clause is to promote the ease with which the Government may inspect the building. Nothing in this clause shall act to relieve the Lessor of any duty to inspect or liability which might arise as a result of Lessor's failure to inspect for or correct a hazardous condition. 22. 552.232 -75 - PROMPT PAYMENT (SEP 1999) The Government will make payments under the terms and conditions specified in this clause. Payment shall be considered as being made on the day a check is dated or an electronic funds transfer is made. All days referred to in this clause are calendar days, unless otherwise specified. (a) Payment due date. INITIALS: _ _._ & LESSOR GOVERNMENT GSA FORM 35178 PAGE 7 (REV 9/01) (1) Rental payments. Rent shall be paid monthly in arrears and will be due on the first workday of each month, and only as provided for by the lease. (i) When the date for commencement of rent falls on the 15th day of the month or earlier, the initial monthly rental payment under this contract shall become due on the first workday of the month following the month in which the commencement of the rent is effective. (ii) When the date for commencement of rent falls after the 15th day of the month, the initial monthly rental payment under this contract shall become due on the first workday of the second month following the month in which the commencement of the rent is effective. (2) Other payments. The due date for making payments other than rent shall be the later of the following two events: (i) The 30th day after the designated billing office has received a proper invoice from the Contractor. (ii) The 30th day after Government acceptance of the work or service. However, if the designated billing office fails to annotate the invoice with the actual date of receipt, the invoice payment due date shall be deemed to be the 30th day after the Contractor's invoice is dated, provided a proper invoice is received and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements. (b) Invoice and inspection requirements for payments other than rent. (1) The Contractor shall prepare and submit an invoice to the designated billing office after completion of the work. A proper invoice shall include the following items: i) Name and address of the Contractor. ii) Invoice date. iii Lease number. iv Government's order number or other authorization. V) Description, price, and quantity of work or services delivered. vi) Name and address of Contractor official to whom payment is to be sent (must be the same as that in the remittance address in the lease or the order.) (vii) Name (where practicable), title, phone number, and mailing address of person to be notified in the event of a defective invoice. (2) The Government will inspect and determine the acceptability of the work performed or services delivered within 7 days after the receipt of a proper invoice or notification of completion of the work or services unless a different period is specified at the time the order is placed. If actual acceptance occurs later, for the purpose of determining the payment due date and calculation of interest, acceptance will be deemed to occur on the last day of the 7 -day inspection period. If the work or service is rejected for failure to conform to the technical requirements of the contract, the 7 days will be counted beginning with receipt of a new invoice or notification. In either case, the Contractor is not entitled to any payment or interest unless actual acceptance by the Government occurs. Interest Penalty. ( An interest penalty shall be paid automatically by the Govern t-vPtmuut request m the Contractor, if payment is not made by the due d (2) Th ' Contract penalty shall be at the rate establish the Secretary of the Treasury under tion 12 of the Contract Disputes Actor _ 978 (41 U.S.C. 611) that is in effect on the day r the due date. This rate referred to as the "Renegotiation Board Interest Rate," a is published�rthe Federal Register semiannually on or about January 1 and July 1. terest penalty shall accrue daily on the payment amount approved by the Goverwe d be compounded in 30 -day increments inclusive from the first day after the due date h the payment date. (3) Interest penalties will not continue to accrt+e� after the filing of a claim for such penalties under the clause at 52.233 -1, Disputes­, or more than 1 year. Interest penalties -of less than $1.00 need not be paid. (4) Interest penalties are not required on payment delays due to disagreement between the Government and Contractor over the payment amount or other involving contract compliance or on amounts temporarily withheld or retained in- accordance with the terms of the contract. Claims involving disputes, and any interest that may be payable, will be resolved in accordance with the clause at 52.233 -1, Disputes. 23. 552.232 -76 - ELECTRONIC FUNDS TRANSFER PAYMENT (SEP 1999) (Variation) (a) The Government will make payments under this lease by electronic funds transfer (EFT). After award, but no later than 30 days before the first payment, the Lessor shall designate a financial institution for receipt of EFT payments, and shall submit this designation to the Contracting Officer or other Government official, as directed. INITIALS: .__ & LESSOR GOVERNMENT GSA FORM 35178 PAGE 8 (REV 9101) (b) The Lesso all provide the following informatian�_ i � 1) The lease nu er to which thi"6tice applies. 2) The American B ers Association 9 -digit Identifying number for wire transfers of the financing ,eNing payment if the institution has access to the Federal Reserve Communion ystem. 3 Number of account to which fu e to be deposited. 4 Type of decor account ( "C" for chec Ing, S' for savings). 5 the sor Is a new enrollee to the EFT system "a completed "Payment Information SF 3881. (c) In the event the Lessor, during the performance of this contract, elects to designate a different financial institution for the receipt of any payment made using EFT procedures, notification of such change and the required information specified in (b), above must be received by the appropriate Government official no later than 30 days prior to the date such change is to become effective. (d) The documents furnishing the information required in this clause must be dated and contain the signature, title, and telephone number of the Lessor or an authorized representative designated by the Lessor, as well as the Lessor's name and lease number. (e) Lessor failure to properly designate a financial institution or to provide appropriate payee bank account information may delay payments of amounts otherwise properly due. 24. 552.232 -70 - INVOICE REQUIREMENTS (VARIATION) (SEP 1999) (This clause applies to payments other than rent.) (a) Invoices shall be submitted in an original only, unless otherwise specified, to the designated billing office specified in this contract or order. (b) Invoices must include the Accounting Control Transaction (ACT) number provided below or on the order. ACT Number (to be supplied on individual orders) (c) If information or documentation in addition to that required by the Prompt Payment clause of this contract is required in connection with an invoice for a particular order, the order will indicate what information or documentation must be submitted. 25. 52.232 -23 -ASSIGNMENT OF CLAIMS (JAN 1986) (a) The Contractor, under the Assignment of Claims Act, as amended, 31 USC 3727, 41 USC 15 (hereafter referred to as the 'the Act "), may assign its rights to be paid amounts due or to become due as a result of the performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency. The assignee under such an assignment may thereafter further assign or reassign Its right under the original assignment to any type of financing institution described in the preceding sentence. (b) Any assignment or reassignment authorized under the Act and this clause shall cover all unpaid amounts payable under this contract, and shall not be made to more than one party, except that an assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in the financing of this contract. (c) The Contractor shall not furnish or disclose to any assignee under this contract any classified document (including this contract) or information related to work under this contract until the Contracting Officer authorizes such action in writing. 26. 552.270 -20 -PAYMENT (SEP 1999) (VARIATION) (a) When space is offered and accepted, the ANSUBOMA Office Area square footage delivered will be confirmed by: (1 deliv (2) a mutual on -site measurement of the space, if the Contracting Officer determines that it is necessary. (b) Payment will not be made for space which is in excess of the amount of ANSUBOMA Office Area square footage stated in the lease. INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 9 (REV 9/01) (c) If it is determined that the amount of ANSI /BOMA Office Area square footage actually delivered is less than the amount agreed to in the lease, the lease will be modified to reflect the amount of Usable space delivered and the annual rental will be adjusted as follows: Usable square feet not delivered multiplied by the ANSI/BOMA Office Area square foot (USF) rate equals the reduction in annual rent. The rate per USF is determined by dividing the total annual rental by the Usable square footage set forth in the lease. USF Not Delivered X Rate per USF = Reduction in Annual Rent. 27. 552.20 -5 -COVENANT AGAINST CONTINGENT FEES (FEB 1990) (Applies to`Igases which exceed $100,000.) (a) The Contractor warrants that no person or agency "t been employed or retained to solicit or obtain tffikcontract upon an agreement or unddrstanding for a contingent fee, except a bona fide em yee or agency. For breach o lolation of this warranty, the Government shall have the ri t to annul this contract w' out liability or, in its discretion, to deduct from the contract price consideration, orerwise recover the full amount of the contingent fee. (b) 'Bona fide agency," as usiad in -this clause, means an established commercial or selling agency (including licensed re estate agents or brokers), maintained by a Contractor for the purpose of securing business, th neither exerts nor proposes to exert Improper influence to solicit or obtain Government con cts nor holds itself out as being able to obtain any Government contract -or contracts thro h improper influence. "Bona fide emproyee," as used in this clad means a person, employed by a Contractor and subjecl-to the Contractor's supervision a control as to time, place, and manner of performance, who neither exerts nor proposes to ert improper influence to solicit or obtain Government contracts nor holds out as being able obtain any Government contract or cordiracts through improper influence. X Contingent fee," as used in this clause, means any commis n, percentage, brokerage, or fee that is contingent upon the success that a person o concern has in securing a Government contract. "Improper influence," as used in this clause, means any influence th*induces or tends to induce a Government employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter. �I 28. 52.203-7-ANTI-KICKBACK PROCEDURES (JUL 1995) (Applies to leases which exceed $100,000 average net annual �pn al, including option periods.) (a) finitions. "Kick ck," as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing o alue, or compensation of any kind which is provided, directly or indirectly, to any prime Con ctor, prime Contractor employee, subcontractor, or subcontractor employee for the purpose mproperly obtaining cerewarding favorable treatment in connection with a prime contract or i connection with.a subcontract relating to a prime contract. "Person," as used in thi6clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual. "Prime contract," as used in Ht * clause, means a contract or contractual action entered into by the United States for the purpose of obtaining supplies, materials, equipment, or services of any kind. \\ "Prime Contractor," as used in this clause, means a person who has entered into a prime contract with the United States. "Prime Contractor employee," as used in this c se, means any officer, partner, employee, or agent of a prime Contractor. \\ "Subcontract," as used in this clause, means a contract's contractual action entered into by a prime Contractor or subcontractor for the purpose obtaining supplies, materials, equipment, or services of any kind under a prime contract. "Subcontractor," as used in this clause, (1) means any person, other than the prime Contractor, who offers to furnish or furnishes any supplies, materials; equipment, or services INITIALS: & _ LESSOR GOVERNMENT GSA FORM 35178 PAGP (REV 9/01) of any kind under a prime contract or a subcontract entered into onnection with such pr e contract, and (2) includes any person who offers to f Kish or furnishes general supp %contr e prime Contractor or a higher tier subcontXo "St or employe e," as used in this clause, meafficer, pa rtner, employee, or agent of a subcontractor. (b) The Anti -Kick back ;Art of 1986 (41 U.S.C. 51 -58) (th�Act), prohibits any person from -- ((1) Providing or attem mg to provide or offer' g to provide any kickback; (2) Soliciting, accepting, attempting to a ept any kickback; or (3 Including, directly or I irectly, the Xmount of any kickback in the contract price charged by a prime Contrcictor tot United States or In the contract price charged by a subcontractor to a prime CWtiractor or higher tier subcontractor. (c) (1) The Contractor shall have i plXe and follow reasonable procedures designed to prevent and detect possibl violations described in paragraph (b) of this clause in its own operations and direcrbusiness re tionships. (2) When the Contractor s reasonable g unds to believe that a violation described in paragraph (b) of this, lause may have oc rred, the Contractor shall promptly report in writing the possible violation. Such reports all be made to the inspector general of the contracting agency, the head of the cont ting agency if the agency does not have an inspector general, or the Department of tice. (3) The Contractor shall cooperate fully with any Federal agency investigating a possible violation described in paragraph (b) of this clause. \ (4) The Contracting Officer may (I) offset the amount of the kickback against any monies owed by the United States under the prime contract and (ii) direct that the Prime Contractor withhold from sums owed a subcontractor under the prime contract, the amount of the kickback. The Contracting Officer may order that monies withheld under subdivision (c)(4)(ii) of this clause be paid over to the Government unless the -Government has already offset those monies under subdivision (c)( I) of this clause. In the either case, the Prime Contractor shall notify the Contracting Officer when the monies are withheld. (5) The Contractor agrees to incorporate the substance of this clause, including subparagraph (c)(5) but excepting subparagraph (c)(1), in ail subcontracts ur�der this contract which exceed $100,000. �T 29. 52.223 -6 DRUG -FREE WORKPLACE (JAN 1997) (a) Definitions. As used in this clause -- "Controlled substance" means a controlled substance in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812) and as further defined in regulation at 21 CFR 1308.11 - 1308.15. "Conviction" means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to deter -mine violations of the Federal or State criminal drug statutes. "Criminal drug statute" means a Federal or non - Federal criminal statute involving the manufacture, distribution, dispensing, possession, or use of any controlled substance. "Drug -free workplace" means the site(s) for the performance of work done by the Contractor in connection with a specific contract at which employees of the Contractor are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance. "Employee" means an employee of a Contractor directly engaged in the performance of work under a Government contract. "Directly engaged" is defined to include all direct cost employees and any other Contractor employee who has other than a minimal impact or involvement in contract performance. "Individual" means an offeror /contractor that has no more than one employee including the offeror /contractor. (b) The Contractor, if other than an individual, shall -- within 30 days after award (unless a longer period is agreed to in writing for contracts of 30 days or more performance duration), or as soon as possible for contracts of less than 30 days performance duration- - (1) Publish a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in INITIALS: & _ _ LESSOR GOVERNMENT GSA FORM 35178 PAGE 11 (REV 9/01) the Contractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition; (2) Establish an ongoing drug -free awareness program to inform such employees about -- (i) The dangers of drug abuse in the workplace; II) The Contractor's policy of maintaining a drug -free workplace; iii) Any available drug counseling, rehabilitation, and employee assistance programs; and (iv) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (3) Provide all employees engaged in performance of the contract with a copy of the statement required by subparagraph (b)(1) of this clause; (4) Notify such employees in writing in the statement required by subparagraph (b)(1) of this clause that. as a condition of continued employment on this contract, the employee will — � I) Abide by the terms of the statement; and il) Notify the employer in writing of the employee's conviction under a criminal drug statute for a violation occurring in the workplace no later than 5 days after such conviction. (5) Notify the Contracting Officer in writing within 10 days after receiving notice under subdivision (b)(4)(ii) of this clause, from an employee or otherwise receiving actual notice of such conviction. The notice shall include the position title of the employee; (6) Within 30 days after receiving notice under subdivision (b)(4)(ii) of this clause of a conviction, take one of the following actions with respect to any employee who is convicted of a drug abuse violation occurring in the workplace: (i) Taking appropriate personnel action against such employee, up to and including termination; or (ii) Require such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; and (7) Make a good faith effort to maintain a drug -free workplace through implementation of subparagraphs (b)(1) though (b)(6) of this clause. (c) The Contractor, if an individual, agrees by award of the contract or acceptance of a purchase order, not to engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance while performing this contract. (d) In addition to other remedies available to the Government, the Contractor's failure to comply with the requirements of paragraph (b) or (c) of this clause may, pursuant to FAR 23.506, render the Contractor subject to suspension of contract payments, termination of the contract for default, and suspension or debarment. 30. Nf or PRIEnth STMENT FOR ILLEGAL OR IMPROPER ACTIVITY�(5EP 199 ses ceed $100,000.) ' ad contracting activity (HCA) or his or her designee determines that there was ' tion 27(a) of the Office of Federal,Pfocurement Policy Act, as amended .C. implemented in the Federal Acquisition Regulation, the Government, at tion edon rental under this lease by 5 percent of the amount of the rental or eh oft mainingg. term of the lease, Including any optio n periods, and recover 5 percent of the r al.already paid; (2) Reduce payments for alteratidroknot included in monthly rental payments by 5 percent of the amount of the alterations a ement; or (3) Reduce the payments for violations Dya Lessor's subcontractor by an amount not to exceed the amount of profit or fee r cted in the subcontract at the time the subcontract was placed. (b) Prior to making a determination as set forth above, the HCAor designee shall provide to the Lessor a written notice of the action being considered and basis therefor. The Lessor shall have a: period determined by the agency head or desig but not less than 30 calendar days after receipt of such notice, to submit in person, in Ming, or through a representative, information and argument in opposition to the proposed jeduction. The INITIALS: _ & LESSOR GOVERNMENT GSA FORM 35176 PAGE 12 (REV 9/01) agency head nee may, upon good cause shown, determine to deduct less than the above amounts from p (c) The rights and - remedies of the Governmen erein are not exclusive, and are in anu Many other rights and remedies provided by law or e. 31. 5215 -10 -PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA (OCT 1997) (Applies when cost or pricing data are required for work or service exceeding S500,009.) i (a) If price, including profit or fee, negotiated in connection with this contra�t, or any cost reimbursable under this contract, was increased by any significant amount b 'cause — (1) The Contractor or a subcontractor furnished cost or pricingg d that were not complete, accurate, and current as certified in its Certificate of Cur nt Cost or Pricing Data; (2) A subcontractor or prospective subcontractor furnished the Contractor cost or pricing data that were not complete, accurate, and current as certified in the Contractor's Certificate of Current Cost or Pricing Data; or // (3) Any of these parties furnished data of any description that 4 ere not accurate, the price or cost shall be reduced accordingly and the contract stall be modified to reflect the reduction, (b) Any reduction in the contract price under paragraph (a) of this c use due to defective data from a prospective subcontractor that was not subsequently avtarded the subcontract shall be limited to the amount, plus applicable overhead and profit markup, by which (1) the actual subcontract or (2) the actual cost to the Contractor, if there as no subcontract, was less than the prospective subcontract cost estimate submitted b�he Contractor; provided, that the actual subcontract price wagnot itself affected by defective cost or pricing data. (c) (1) If the Contracting Officer determines under paragraph (a) of this clause that a price or cost reduction should be made, the Contractor agrees not to raise the following matters as a defense: \ (i) The Contractor or subcontractor was a sot4 source supplier or otherwise was in a superior bargaining positO and thus W6 price of the contract would not have been modified even If accura \ complete, and current cost or pricing data had been submitted. (ii) The Contracting Officer should have known that the cost or pricing data in issue were defective even though the Contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the Contracting Officer. (iii) The contract was based on an agreement about the total cost of the contract and there was no agreement about tha�cost of each item procured under the contract. \\ (iv) The Contractor or subcontractor did not submit a Certificate of Current Cost or Pricing Data. (2) (i) Except as prohibited by sui;5division (c)(2�) i) of this clause, an offset in an amount determined appropriate by the Contrasting Officer based upon the facts shall be allowed against the amount of a contra t pace reduction if -- (A) The Contractor certifies to the ContractinOfficer that, to the best of the Contractor's knowledge and belief, the Contractor is entitled to the offset in the amount requested; and \ (B) The Contractor proves that the cost or pricing bata were available before the "as of date specified on its Certificate of Cost or Pricing Data, and thatthe data were not submitted beforb"such date. (ii) An offset shall not be allowed if -- (A) The understated data were known by the Contractor to be understated before the "as of date specified on its Certificate 'af Current Cost or Pricing Data; or (B) The Government proves that the facts demonstrate that the contract price would not have increased in the amount to be offVt even if the available data had been submitted before the "as of date skerified on its Certificate of Current Cost or Pricing Data. (d) If any reduction in the contract price under this clause reduces the price of items for which payment was made prior to the date of the modification reflecting the price reduction, the Contractor shall be/Iable to and shall pay the United States at the time such overpayment is repaid -- (1) Simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the Contractor to the date the Government Is repaid by the INITIALS: _- & _- ----- -- - - --__. LESSOR GOVERNMENT GSA FORM 35178 PAGE 13 (REV 9/01) Contractor at the qppl. underpayment rate effective for each quarter prescribed by the Secretary of the I reasucy under 26 U.S.C. 6621(a)(2); and (2) A penalty equal to the amount of ent, if the Contractor or subcontractor knowingly submitted cost or pricing data that lete, inaccurate, or noncurrent. 32. 552.270 -13 - PROPOSALS FOR ADJUSTMENT (SEP 1999) (a) The Contracting Officer may, from time to time during the term of this lease, require changes to be made in the work or services to be performed and in the terms or conditions of this lease. Such changes will be required under the Changes clause. (b) If the Contracting Officer makes a change within the general scope of the lease, the Lessor shall submit, in a timely manner, an itemized cost proposal for the work to be accomplished or services to be performed when the cost exceeds $100,000. The proposal, including all subcontractor work, will contain at least the following details -- � 1 Material quantities and unit costs; 2) Labor costs (Identified with specific item or material to be placed or operation to be performed; 3 Equipment costs; 4 Worker's compensation and public liability insurance; 5 Overhead; 6 Profit; and 7 Employment taxes under FICA and FUTA. (c) The following Federal Acquisition Regulation (FAR) provisions also apply to all proposals exceeding $500,000 in cost -- (1) The Lessor shall provide cost or pricing data including subcontractor cost or pricing data (48 CFR 15.403 -4) and (2) The Lessor's representative, all Contractors, and subcontractors whose portion of the work exceeds $500,000 must sign and return the "Certificate of Current Cost or Pricing Data" (48 CFR 15.406 -2). (d) Lessors shall also refer to 48 CFR Part 31, Contract Cost Principles, for information on which costs are allowable, reasonable, and allocable in Government work. 33. 552.270 -14 - CHANGES (SEP 1999) (VARIATION) (a) The Contracting Officer may at any time, by written order, make changes within the general scope of this lease in any one or more of the following: I l l Specifications (including drawings and designs); 2 Work or services; 3 Facilities or space layout; or 4 Amount of space, provided the Lessor consents to the change. (b) If any such change causes an increase or decrease in Lessor's cost of or the time required for performance under this lease, whether or not changed by the order, the Contracting Officer shall modify this lease to provide for one or more of the following: I l l A modification of the delivery date; 2 An equitable adjustment in the rental rate; 3 A lump sum equitable adjustment; or 4 An equitable adjustment of the annual operating costs per ANSI /BOMA Office Area square foot specified In this lease. (c) The Lessor shall assert its right to an adjustment under this clause within 30 days from the date of receipt of the change order and shall submit a proposal for adjustment. Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this clause shall excuse the lessor from proceeding with the change as directed. (d) Absent such written change order, the Government shall not be liable to Lessor under this clause. 34. 552.215 -70 - EXAMINATION OF RECORDS BY GSA (FEB 1996) The Contractor agrees that the Administrator of General Services, or any duly authorized representative shall, until the expiration of 3 years after final payment under this contract, or of the time periods for the particular records specified in Subpart 4.7 of the Federal Acquisition Regulation (48 CFR 4.7), whichever expires earlier, have access to and the right to examine any INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 14 (REV 9/01) books, documents, papers, and records of the Contractor involving transactions related to this contract or compliance with any clauses thereunder. The Contractor further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor agrees that the Administrator of General Services, or any duly authorized representatives shall, until the expiration of 3 years after final payment under the subcontract, or of the time periods for the particular records specified in Subpart 4.7 of the Federal Acquisition Regulation (48 CFR 4.7), whichever expires earlier, have access to and the right to examine any books, documents, papers, and records of such subcontractor, involving transactions related to the subcontract or compliance with any clauses thereunder. The term "subcontract" as used in this clause excludes (a) purchase orders not exceeding $100,000 and (b) subcontracts or purchase orders for public utility services at rates established for uniform applicability to the general public. 35. 52.215 -2 -AUDIT AND RECORDS — NEGOTIATION (JUN 1999) (a) As used in this clause, "records" includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form. (b) Examination of costs. If this is a cost - reimbursement, incentive, time - and - materials, labor - hour, or price redeterminable contract, or any combination of these, the Contractor shall maintain and the Contracting Officer, or an authorized representative of the Contracting Officer, shall have the right to examine and audit all records and other evidence sufficient to reflect properly all costs claimed to have been incurred or anticipated to be incurred directly or indirectly in performance of this contract. This right of examination shall include inspection at all reasonable times of the Contractor's plants, or parts of them, engaged in performing the contract. (c) Cost or pricing data. If the Contractor has been required to submit cost or pricing data in connection with any pricing action relating to this contract, the Contracting Officer, or an authorized representative of the Contracting Officer, in order to evaluate the accuracy, completeness, and currency of the cost or pricing data, shall have the right to examine and audit all of the Contractor's records, including computations and projections, related to— t The proposal for the contract, subcontract, or modification; 2 The discussions conducted on the proposal(s), including those related to negotiating; 3 Pricing of the contract, subcontract, or modification; or 4 Performance of the contract, subcontract or modification. (d) Comptroller General — (1) The Comptroller General of the United States, or an authorized representative, shall have access to and the right to examine any of the Contractor's directly pertinent records involving transactions related to this contract or a subcontract hereunder. (2) This paragraph may not be construed to require the Contractor or subcontractor to create or maintain any record that the Contractor or subcontractor does not maintain in the ordinary course of business or pursuant to a provision of law. (e) Reports. If the Contractor is required to furnish cost, funding, or performance reports, the Contracting Officer or an authorized representative of the Contracting Officer shall have the right to examine and audit the supporting records and materials, for the purpose of evaluating — (1) The effectiveness of the Contractor's policies and procedures to produce data compatible with the objectives of these reports; and (2) The data reported. (f) Availability. The Contractor shall make available at its office at all reasonable times the records, materials, and other evidence described in paragraphs (a), (b), ©, (d), and (e) of this clause, for examination, audit, or reproduction, until 3 years afftter (final payment under this contract or for any shorter period specified in Subpart 4.7, Contractor Records Retention, of the Federal Acquisition Regulation (FAR), or for any longer period required by statute or by other clauses of this contract. In addition— (1) If this contract is completely or partially terminated, the Contractor shall make available the records relating to the work terminated until 3 years after any resulting final termination settlement; and (2) The Contractor shall make available records relating to appeals under the Disputes clause or to litigation or the settlement of claims arising under or relating to this contract until such appeals, litigation, or claims are finally resolved. INITIALS: & LESSOR GOVERNMENT GSA FORM 35178 PAGE 15 (REV 9/01) (g) The Contractor shall insert a clause containing all the terms of this clause, including this paragraph (g), in all subcontracts under this contract that exceed the simplified acquisition threshold, and— (1) That are cost - reimbursement, incentive, time - and - materials, labor -hour, or price - redeterminable type or any combination of these; (2) For which cost or pricing data are required; or 3) That require the subcontractor to furnish reports as discussed in paragraph (e) of this clause. The clause may be altered only as necessary to identify properly the contracting parties and the Contracting Officer under the Government prime contract. 36. 52.233 -1 - DISPUTES (DEC 1998) (a) This contract is subject to the Contract Disputes act of 1978, as amended (41 U.S.C. 601 -613 (b) Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause. (c) "Claim," as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by subparagraph (d)(2) of this clause. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time. (d) (1) A claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within 6 years after accrual of the claim to the Contracting Officer for a written decision. A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer. (2) (i) The Contractor shall provide the certification specified in paragraph (d)(2)(iii) of this clause when submitting any claim exceeding $100,000. (ii) The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim. (iii) The certification shall state as follows: "I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that 1 am duly authorized to certify the claim on behalf of the Contractor." (3) The certification may be executed by any person duly authorized to bind the Contractor with respect to the claim. (e) For Contractor claims of $100,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor - certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made. (f) The Contracting Officer's decision shall be final unless the Contractor appeals or files a suit as provided in the Act. (g) If the claim by the Contractor is submitted to the Contracting Officer or a claim by the Government is presented to the Contractor, the parties, by mutual consent, may agree to use alternative disputes resolution (ADR). If the Contractor refuses an offer for ADR, the Contractor shall inform the Contracting Officer, in writing, of the Contractor's specific reasons for rejecting the offer. (h) The Government shall pay interest on the amount found due and unpaid from (1) the date that the Contracting Officer receives the claim (certified if required); or (2) the date that payment otherwise would be due, if that date is later, until the date of payment. With regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid from the date that the Contracting Officer initially receives the claim. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and INITIALS: _ 8 LESSOR GOVERNMENT GSA FORM 35176 PAGE 16 (REV 9/01) then at the rate applicable for each 6 -month period as fixed by the Treasury Secretary during the pendency of the claim. (i) The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer. 52.222 -26 - EQUAL OPPORTUNITY (FEB 1999) If, during any 12 -month period (including the 12 ryionths preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and /or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with subparagraphs (b)(1) through (11) bel w. Upon request, the Contractor shall provide Information necessary to determine the appricability of this clause. (b) D4ing performing this contract, the Contractor agrees as follows: (1) The Contractor shall not discriminate against any employee or applicant for mployment because of race, color, reffgion, sex, or national origin. However, It shall t be a violation of this clause for the Contractor to extend a publicly announced prl�ference in employment to Indiaris living on or near an Indian reservation, in cormection with employment opportunities on or near an Indian reservation, as permitted by 41 CFR 60 -1.5. (2) The Contractor shall take affirmative action to ensure the applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, ; sex, or national origin. This shall include, but not be limited to, (i) employment, (ii) upgrading, (iii) demotion, (iv) transfer, (v) recruitment or recruitment advertising \(vl) layoff or termination, (vii) rates of pay or other forms of compensation, and (viii) selection for training, including apprenticeship. (3) The Contractor shall post In conspicuous places available to employees and applicants for employment the notices to be provided by the Contracting Officer that explain this clause. (4) The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment witho> rt regard to race, color, religion, sex, or national origin. (5) The Contractor shalt Send, to each labor union or representative of workers with which it has a collective'bargaining agreement or other contract or understanding, the notice to be provided by`the Contracting Officer advising the labor union or workers' representative of the Contractor's commitments under this clause, and post copies of the notice in conspicuous\ places available to employees and applicants for employment. (6) The Contractor shall comply with Executive Order 11246, as amended, and the rules, regulations, and orders of the Secretary of Labor. (7) The Contractor shall furnish to the contracting agency all information required by Executive Order 11246, as amended, and by the rules, regulations, and orders of the Secretary of Labor. Standard Form 100 (EEO -1), or any successor form, as prescribed in 41 CFR part 60 -1. Unless the Contractor has filed within the 12 months preceding the date of contract award the Contractor shall, within 30 days after contract award, appply to either the regional Office of Federal Contract Compliance Programs ( OFCCP) or the local office, of the Equal Employment Opportunity Commission for the necessary forms (8) The Contractor shall permit access to its premises, during normal business hours, by thecontracting agency or the OFCCP for. the purpose of conducting on -site compliance evaluations and complaint investigations. The Contractor shall permit the Government to inspect and copy any books, accounts, records (including computerized records), and other material that may be relevant to the matter under investigation and pertinent to compliance with Executive Order 11246, as amended, and rules and regulations that implement the Executive Order. (9) If the OFCCP determines that the Contractor is not in compliance with this clause or any rule, regulation, or order of the Secretary of Labor, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts, under the procedures authorized in Executive Order 11246, as amended. In addition, sanctions may be imposed and remedies invoked against the Contractor as provided in Executive Order 11246, as amended, the rules, regulations, and orders of the Secretary of Labor, or as otherwise provided by law. (10) The Contractor shall include the terms and conditions of subparagraph (b)(1) through (11) of this clause in every subcontract or purchase order that is not exempted by the rules, regulations, or orders of the Secretary of Labor issued under Executive Order 11246, as amended, so that these terms and conditions will be bindinaupon each subcontractor or vendor. INITIALS: & LESSOR GOVERNMENT GSA FORM 3517B PAGE 17 (REV 9101) (11) The Contracto all take such action -with respect to any subcontract or purchase order as the contrac I c_ may direct as a means of enforcing these terms and conditions, including sanctions ompiIance; provided, that if the Contractor becomes involved in; or is threatened with, i � � n with a subcontractor or vendor as a result of ardirection, the Contractor may reque U_ nited States to enter into the litigation to protect the interests of the United States. — (c) Notwithstanding any other clause in this contract, disputes relative to this clause will be governed by the procedures in 41 CFR 60 -1.1. 38. 52.222 -24 — PREAWARD ON -SITE EQUAL OPPORTUNITY COMPLIANCE EVALUATION (FEB \ 1999) (Applies to leases which exceed $10,000,000.) If a contract in the amoli r+-o 10 milliorr more will result from this solicitation, the prospective Contractor and its known first_ -ti ctors with anticipated subcontracts of $10 million or more shall be subjeGJ_to­Aa ppreaward compllan b Office of Federal Contract Compliance Pr s (OFCCP), unless, within the preceding 2 months, OFCCP has conducted an eval and found the prospective Contractor and subcontractors to be in compliahce with Ive Order 11246. 39. 52.222 -21 — PROHIBITION OF SEGREGATED FACILITIES (FEB 1999) (a) "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. (b) 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. (c) The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Opportunity clause of this contract. 52.222 -35 - AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA (APR 1998) (a) Definitions. All emp yment openings includes all positions except executive and top management, those positions tPmt will be filled from within the contractor's organization, and positions lasting 3 days or less. This tehzq includes full -time employment, temporary employment of more than 3 days' duration, and part4ime employment. % Appropriate office of�the State employment service system means the local office of the Federal -State national system of public employment offices with assigned responsibility to serve the area where the employment opening is-to be filled, including the District of Columbia, Guam, the Commonwealth of Puerto Rico, and the Virgin Islands. Positions that will be filled from withimthe Contractor's organization means employment openings for which no consideration will be given to persons outside the Contractor's organization (including any affiliates, subsidiaries, and the parent companies) and includes any openings that the Contractor proposes to fill from regularly establish "recall' lists. The exception does not apply to a particular opening once an employer decides to consider applicants outside of Its organization. Veteran of the Vietnam era means a person who -- (1) Served on active duty for a period of more than 180 days, any part of which occurred between August 5, 1964, and May 7, 1975, and was discharged or released therefrom with other than a dishonorable discharge; or (2) Was discharged or released from active duty for a service - connected disability if any part of such active duty was performed between August 5, 1964, and May 7; 1975. INITIALS: & \ LESSOR GOVERNMENT GSA FORM 35178 PAGE 18 (REV 9/01) (b) General. (1) Regarding any position for which the employee or applicant for employment is qualified, the Contractor shall not discriminate against the individual because the individual is a disabled veteran or veteran of the Vietnam era. The Contractor agrees to take affirmative action to employ, advance in employment. and otherwise treat qualified disabled veterans and veterans of the Vietnam era without discrimination \ based upon their disability or veterans' status in all employment ractices such as -- i) Employment; ii) Upgrading; iii) Demotion or transfer; iv) Recruitment; V) Advertising; Layoff or termination; Rates of pay or other forms of compensation; and Selection for training, including apprenticeship. ontractor agrees to comply with the rule s, regulations, and relevant orders of ecretary of Labor (Secreta ) issued under/ the Vietnam Era Veterans' ustment Assistance Act of 1972 (the Act), as amended. (c) ngs. / (1) The Co tractor agrees to list all employment openings existing at contract award or occurring _ during contract performance, at ary appropriate office of the State employmeht service system in the locality where.1he opening occurs. These openings include those occurring at any contractor facility, including one not connected with performing this contract. An independent corporate affiliate is exempt from this requirement. (2) State and local government agencies holding Federal contracts of $10,000 or more shall also list all employment openings with the appropriate office of the State employment service. (3) The liking of employment openings with /the State employment service system is required at least concurrently with using any other recruitment source or effort and involves the obligations of placing a bona fide job order, including accepting referrals of veterans and nonveterans. This listing does not require hiring any particular J'ob applicant or hiring from any particular group of job applicants and is not intended to relieve the Contractor from any requirements of Executive orders or regulations concerning nondiscrimination in employment. (4) Whenever the Contractor becomes contractually bound to the listing terms of this clause, it shall advise the State employment service system, in each State where it has establishments, of the name and location of each hiring location in the State. As long as the Contractor is contractually bound to these terms and has so advised the State system, it need not advise the State system of subsequent contracts. The Contractor may advise the State system when it is no longer bound by this contract clause. (d) Applicability. This clause does not apply to the listing of employment openings which occur and are filled outside the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (e) Postings. (1) The Contractor agrees to post employment notices stating — (i) The Contractor's obligation under the law to take affirmative action to employ and advance in employment qualified disabled veterans and veterans of the Vietnam era, and (ii) The rights ofapplicants and employees. (2) These notices shall be posted in conspicuous places that are available to employees and applicants for employment. They shall be in a form prescribed by the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor (Deputy Assistant Secretary), and provided by or through the Contracting Officer. (3) The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of the Act, and is committed to take affirmative action to employ, and advance in employment, qualified disabled veterans and veterans of the Vietnam era. (f) Noncompliance. If the Contractor does not comply with the requirements of this clause, appropriate actions may be taken under the rules, regulations, and relevant orders of the Secretary issued pursuant to the Act. INITIALS: -_. & LESSOR GOVERNMENT GSA FORM 35176 PAGE 19 (REV 9/01) (g) Subcontracts. The Contractor shall include the terms of this se in every subcontract or purchase order of $10,000 or more unless exempted by rul s, regulations, or orders of the Secretary. The Contractor shall act as specified by the Deputy Assistant Secretary to enforce the terms, including action for noncompliance. / 41. 52.22 36 - AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (JUN 1998) (a) G neral. (1) Regarding any position for which the emploee or applicant for employment is qualified, the Contractor shall not discriminat against any employee or applicant because of physical or mental disability. The/Contractor agrees to take affirmative c tion to employ, advance in employment a d otherwise treat qualified individuals ith disabilities without discrimination based upon their physical or mental disability in al employment practices such as -- � I) Recruitment, advertising, and job app cation procedures; ii) Hiring, upgrading, promotion, awavd of tenure, demotion, transfer, layoff, termination, right of return from layo#, and rehiring; (iii) ates of pay or any other form of c mpensation and changes in compensation; (iv) J assignments, job classifi tions, organizational structures, position descriptions, lines of progression and seniority lists; � v) Leaves of absence, sick leave, an other leave; vl) Fringe, benefits available by vi a of whether or not administered .,, ,,., (vii) Selection and financial sypport for training, including apprenticeships, professional meetings, confVrences, and other related activities, and selection for leaves`of absence to pursue training (viii) Activities sponsored by he Contractor, including social or recreational programs; and ((Ix) Any other term, condition or privilege of employment. (2) The Contractor agrees to corrjmly with the rules, regulations, and relevant orders of the Secretary of Labor (Secretary) issued under the Rehabilitation Act of 1973 (29 USC 793) (the Act), as amended. (b) Postings. i (1) The Contractor agrees to post employment notices stating (i) the Contractor's obligation under the law to take affirmative action to employ and advance in employment qualified individuals with disabilities and (ii) the rights of applicants and employees. /` `\ (2) These notices shall be posted in conspicuous places that are available to employees and applicants for employment. The Contractor shall ensure that applicants and employees with disabilities are informed of the contents of the notice (e the Contractor may have the notice read to a visually disabled individual, or may Mower .g., the posted notice so that it might be read by a person in a wheelchair). The notices shall be In a form prescribed by the Deputy Assistant Secretary for Federal Contract Compliance of the U.S. Department of Labor (Deputy Assistant Secretary) and shall be provided by or through the Contracting Officer. (3) The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of Section 503 of the Act and is committed to take affirmative action to employ, and advance in employment, qualified individuals with physical ormental disabilities. (c) Noncompliance.. If the Contractor does not comply with the requirements of this clause, appropriate actions may be taken under the rules, regulations, and relevant orders of the Secretary issued pursuant to the Act. (d) Subcontracts. The Contractor shall include the terms of this clause in every subcontract or purchase order in excess of $10,000 unless exempted by rules, regulations, or orders of the Secretary. The Contractor shall act as specified by the Director to enforce the terms, including action for noncompliance. 42. 52.222 -37 - EMPLOYMENT REPORTS ON DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA (JAN 1999) (a) Unless the Contractor is a State or local government agency, the Contractor shall report at least annually, as required by the Secretary of Labor, on: (1) The number of disabled veterans and the number of veterans of the Vietnam era in the workforce of the contractor by job category and hiring location; and INITIALS: & _ LESSOR GOVERNMENT GSA FORM 35,176 PAGE 20 (REV 9 /01) (2) The total number of new employees hired during the period covered by the report, and of that total, the number of special disabled veterans, arid-46e number of veterans of the Vietnam era. % (b) The bove items shall be reported by completing the form entitled "Federal Contractor Vetera ' Employment Report VETS- 100." (c) Reports shall submitted no later than September 30 of each year beginning September 30, 1988. (d) The employment activity report required by paragraph (a)(2) of this clause shall reflect total hires during the most recent 12- month period as of the ending date selected for the employment profile report required by paragraph (a)(1) of this clause. Contractors may select an ending date: (1) As of the end,of any pay period during the period January through March 1 of the year the report is due, or (2) as of December 31, if the Contractor has previous written approval from the,.Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO -1 (Standard Form 100). (e) The count of veterans reported according to paragraph (a) of this clause shall be based on voluntary disclosure. Each Contractor subject to the reporting requirements at 38 U.S.C. 4212 shall Invite all special disabled veterans and veterans of the Vietnam era who wish to benefit under the affirmative action program at 38 U.S.C. 4212 to identify themselves to the Contractor. The invitation shall state that the information is voluntarily provided, that the information will be kept confidential, that disclosure or refusal to provide the information will not subject the applicant or employee to any adverse treatment, and that the information will be used only in accordance with the regulations promulgated under 38 U.S.C. 4212. (f) Subcontracts. The Contractor shall include the terms of this clause in every subcontract or purchase order of $10,000 or more unless exempted by rules, regulations, or orders of the Secretary. 43. 52.209 -6 - PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT (JUL 1995) (a) The Government suspends or debars Contractors to protect the Government's interests. Contractors shall not enter into any subcontract in excess of the small purchase limitation at FAR 13.000 with a Contractor that has been debarred, suspended, or proposed for debarment unless there is a compelling reason to do so. (b) The Contractor shall require each proposed first -tier subcontractor, whose subcontract will exceed the small purchase limitation at FAR 13.000, to disclose to the Contractor, in writing, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not debarred, suspended, or proposed for debarment by the Federal Government. (c) A corporate officer or designee of the Contractor shall notify the Contracting Officer, in writing, before entering into a subcontract with a party that Is debarred, suspended or proposed for debarment (See FAR 9.404 for information on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs). The notice must include the following: � 1) The name of the subcontractor, 2) The Contractor's knowledge of the reasons for the subcontractor being on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs; (3) The compelling reason(s) for doing business with the subcontractor notwithstanding its inclusion on the List of Parties Excluded from Federal. Procurement and Nonprocurement Programs; (4) The systems and procedures the Contractor has established to ensure that it is fully protecting the Government's interests when dealing with such subcontractor in view of the specific basis for the party's debarment, suspension, or proposed debarment. 44. 52.215 -12 - SUBCONTRACTOR COST OR PRICING DATA (OCT 1997) (Applies when the clause at FAR 52.215 -10 is applicable.) (a) Before awarding any subcontract expected to exceed the threshold for submission of cost or pricing data at FAR 15.403 -4, on the date of agreement on price or the date of award, which ever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of cost or pricing data at FAR 15.403 -4, the Contractor shall require the subcontractor to submit cost or pricing data (actually or by specific identification in writing), unless an exception under FAR 15.403 -1 applies. INITIALS: _ _ & _ LESSOR GOVERNMENT GSA FORM 35176 PAGE 21 (REV 9/01) (b) The Contractor shall require the subcontractor to certify in substantially the form prescribed in FAR 15.406 -2 that, to the best of its knowledge and belief, the data submitted under paragraph (a) of this clause were accurate, complete, and current as of the date of agreement on the negotiated price of the subcontract or subcontract modification. (c) In each subcontract that exceeds the threshold for submission of cost or pricing data at FAR 15.403 -4, when entered into, the Contractor shall insert either- - (1) The substance of this clause, including this paragraph (c), if paragraph (a) of this clause requires submission of cost or pricing data for the subcontract; or (2) The substance of the clause at FAR 52.215 -13, Subcontractor Cost o ricing Data — Modifications. 52.219 -8 - UTILIZATION OF SMALL BUSINESS CONCERNS (OCT 2000) (Applies to leases which exceed $100,000 average net annual rental, includinj option periods.) (a) It is the policy of the United States that small business concern/, veteran -owned small business concerns, service - disabled veteran -owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, nd women -owned small business concerns shall have the maximum practicable op rtunity to participate in erforming contracts let by any Federal agency, including con acts and subcontracts for bsystems, assemblies, components, and related services fo major systems. It is further th policy of the United States that its prime contractors esta sh procedures to ensure the tim payment of amounts due pursuant to the terms of heir subcontracts with small business concerns, veteran -owned small business conc %rns, service - disabled veteran - owned` mall business concerns, HUBZone small business concerns, small disadvantaged busines, concerns. and women -owned small business concerns. (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 c6nducted by the United States Small Business Administration or the awarding agency of United States as may be necessary to determine they extent of the Contractor's compllaoce with this clause. (c) Definitions. As used in this contract — HUBZone small business concern means a small business concern that appears on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration. Service- disabled veteran -awned small business concern — (1) Means a small business concerry— (i) Not less than 51 I.ercent of which is owned by one or more service - disabled veterans or, in the of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service- disabled veterans; and (ii) The management and daily business operations of which are controlled by one or more service - disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran. (2) Service - disabled veteran means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service- connected, as,defined in 38 U.S.C. 101(16). Small business concern means a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. Small disadvantaged business concern means a small business concern that represents, as part of its offer that — (1) It has received certification as a small disadvantaged business concern consistent with 13 CFR part 124, Subpart B; (2) No material change in disadvantaged ownership and control has occurred since its certification; (3) Where the concern is owned by one or more individuals, the net worth of each individual upon whom the certification is based does not exceed $750,000 after taking into account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and (4) It is identified, on the date of its representation, as a certified small disadvantaged business in the database maintained by the Small Business Administration (PRO - Net). INITIALS: _ -- - _._.._.. & LESSOR GOVERNMENT GSA FORM 35178 PAGE 22 (REV 9/01) small business concern" means a small business concern (1) Not less tha 1 percent of which is owned by one or more veterans (as defined at 38 U.S.C. 101(2 the in the case of any publicly owned usiness, not less than 51 percent of the stoc which is owned by one or "'veterans; and (2) The management and ily business operations of which are controlled by one or more veterans. "Women -owned small business concerr✓naeans a small business concern — (1) That is at least 51 percent by onB,,.2r more women, or, in the case of any publicly owned business, at least 51 percent "e stock of which is owned by one or more women; ands \ (2) Whose manag6ment and daily business operations are controlled by one or more women. (d) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as a small business concern, a veteran -owned small business concern, a service - disabled veteran -owned small business concern, a HUBZone small business concern, a small disadvantaged business concern, or a women -owned small business concern. 52.219 -9 — SMALL BUSINESS SUBCONTRACTING PLAN (OCT 2000) (Applies to leases which exceed $500,000.) (a) This clause does not apply to small business concerns. (b) D nitions. As used in this clause -- "Comrhercial item" means a product or service that satisfiesAhe definition of commercial item in sectio 2.101 of the Federal Acquisition Regulation. ! "Commercia plan" means a subcontracting plan (including goals) that covers the offeror's fiscal year and\that applies to the entire production of /commercial items sold by either the entire company ova portion thereof (e.g., division, plant, or product line). "Individual contract plan" means a subcontracting plan that covers the entire contract period (including option periods), applies to a specific contract, and has goals that are based on the offeror's planned subcontracting in support of thwspecific contract, except that indirect costs incurred for common or joint purposes may be allocated on a prorated basis to the contract. "Master plan" means a subc plan that contains all the required elements of an individual contract plan, except\goals, and may be incorporated into individual contract plans, provided the master plan haS been approved. "Subcontract," means any agreemenn \means any agreement (other than one involving an employer - employee relationship) enterei into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract. (c) The offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan, where applicable, which separately addresses subcontracting with small business, veteran -owned smaN business, HUBZone small business concerns, small disadvantaged business, and women -owned small business concerns. If the offeror is submitting an individual contract plan, the plan must.separately address subcontracting with small business, veteran -owned small business, HUBZone small business, small disadvantaged business, and women -owned small business concerns, with a separate part for the basic contract and separate parts for each option (if any). The plan shall be included in and made a part of the resultant contract. The subcontracting plan shall be negotiated within the time specified by the Contracting Officer. Failure to submit and negotiate the subcontracting plan shall make the offeror ineligible for award of a contract. (d) The offeror's subcontracting plan shall include the following: (1) Goals, expressed in terms of percentages of total planned subcontracting dollars, for the use of small business, veteran -owned small business, HUBZone small business, small disadvantaged business, and women -owned small business concerns as subcontractors. Service - disabled veteran -owned small business concerns meet the definition of veteran -owned small business concerns, and offerors may incl 5e them INITIALS: - & LESSOR GOVERNMENT GSA FORM 3517B PAGE 23 (REV 9/01) within the subcontracting plan goal for veteran -owned small business concerns. A separate goal for service- disabled veteran -owned small business concerns is not required. The offeror shall include all subcontracts that contribute to contract performance, and may include a proportionate share of productsiand services that are normally allocated as indirect costs. i (2) A statement of– (i) Total dollars planned to be subcontracted for an individual contract plan; or the offeror's total projected sales, expressed in dollars, land the total value of projected subcontracts to support the sales for a commercial plan; I l Total dollars planned to be subcontracted to small business concerns; iii Total dollars planned to be subcontracted to vete an -owned small business concerns; � Iv) \ Total dollars planned to be subcontracted to HUBZo a small business concerns; v) Total dollars planned to be subcontracted to 7all disadvantaged business �ncerns; and (vi) Total dollars planned to be subcontracted to men -owned small business concerns. (3) A description of the principal types of supplies and services to be subcontracted, and an identification of the types planned for subcontracting toj= i) Sma6business concerns, / il) Veteran -owned small business concerns; / iii) HUBZone small business concerns; iv) Small disadvantaged business concerns; and v) Women -awned small business concerns. (4) description of `the method used to develop the subcontracting goals in paragraph (d (1) of this clause. (5) A description of than method used to identify potential sources for solicitation purposes ( e.g., xisting company source lists, the Procurement Marketing and Access Network (PRO -Net) of the Small Business Administration (SBA), veterans service organizations, the National Minority Purchasing Council Vendor Information Service, the Research and Information Division of the Minority Business Development Agency in the Department of Commerce, or small, HUBZone, small disadvantaged, and women -owned small business trade associations). A firm may rely on the information contained in PRO -Net as an accurate representation of a concern's size and ownership characteristics for the purposes of maintaining a small, veteran -owned small, HUBZone small, small disadvantaged, and women -owned small business source list. Use of PRO -Net as its source list does not relieve a firm of its responsibilities (e.g., outreach, assistance, counseling, or publicizing subcontracting opportunities) in this clause. (6) A statement as to whether or not -the offeror included indirect costs in establishing subcontracting goals, and a description of the method used to determine the proportionate share of indirect costs to be incurred with – i) Small business concerns; Veteran -owned small business concerns; HUBZone small business concerns; Small disadvantaged business concerns; and iv Women -owned small business. concerns. (7) he name of the individual employed. by the offeror who will administer the offerors subcontracting program, and'a description of the duties of the individual. (8) A description of the efforts the offeror will make to assure that small business, veteran - owned small business, HUBZone small` business, small disadvantaged and women - owned small business concerns have an equitable opportunity to compete for subcontracts. (9) Assurances that the offeror will include the clause in this contract entitled "Utilization of Small Business Concerns" in all subcontracts that offer further subcontracting opportunities, and that the offeror will require all subcontractors (except small business concerns) that receivev subcontracts in excess of $500,000 ($1,000,000 for construction of any public facility) to adopt a subcontracting plan that complies with the requirements of this clause. (10) Assurances that the.offeror will — Cooperate iry any studies or surveys as may be required; f I ii) ) Submit periodic reports so that the Government can determine the extent of compliance�by the offeror with the subcontracting plan; (iii) Submit Standard Form (SF) 294, Subcontracting Report for Individual Contracts; and /or SF 295, Summary Subcontract Report, In accordance with paragraph (j) of this clause. The reports shall provide information on subcontract awards to small business concerns,.. veteran -owned small business concerns, service - disabled veteran -owned small business concerns, small disadvantaged business concerns, women -owned small business concerns, and Historically Black Colleges and Universities and Minority Institutions. Reporting shall be in accordance with the instructions on the forms or as provided in agency regulations. INITIALS: & LESSOR GOVERNMENT GSA FORM 3517B PAGE 24 (REV 9/01) (iv) Ensure that its subcontractors agree to submit Standard Formg 294 and 295. (11) A recitation of the types of records the offeror will maintain concerning procedures that have been adopted to comply with the requirements and goals jh the plan, including establishing source lists; and a description of the offeror's efforts to locate small business. veteran -owned small business, HUBZone small business, small disadvantaged business, and women -owned small business concerns and award subcontracts to them. The records shall include at least the fo�wing (on a plant -wide or company -wide basis, unless otherwise indicated): (i) Source lists (e.g., PRO -Net), guides, and other data that identify small business, veteran -owned small business, HUBZone small business, small disadvantaged and women -owned small business concerns. (ii) Organizations contacted in an attempt to locate sources that are small business, veteran -owned small business, HUBZone small business, small disadvantaged or women -owned small business concerns. Records on each subcontract solicitation resulting in an award of more than $100,000, indicating — j (A) Whether small business concerns were / solicited and if not, why not; B) Whether veteran -owned small business concerns were solicited and, if not, why not; / ( ) Whether HUBZone small business concerns were solicited and if not, why not; (D) Whether small disadvantaged busyness concerns were solicited and if not, why not; (E) Whether women -owned small business concerns were solicited and if not, 'why not; and (F) Ifapplicable, the reason awarclwas not made to a small business concern. (iv) Records of any outreach efforts to c9ntact — A) Trade associations; B) Business development organizations, C) Conferences and trade fairs to locate small, HUBZone small, small disadvantaged, and women -owned small business sources; (D) Veterans service organizaations. (v) Records of internal guidance and encouragement provided to buyers through — � A) Workshops, seminars, /training, etc.; and B) Monitoring',, performance to evaluate compliance with the program's requirements. / (vi) On a contract -by- contract basis, records to support award data submitted by the offeror to the Government, including the name, address, and business size of each subcontractor. Contractors having commercial plans need not comply with this requirement. (e) In order to effectively implement/ this plan to the extent consistent with efficient contract performance, the Contractor shall,perform the following functions: (1) Assist small business, veteran -owned small business, HUBZone small business, small disadvantaged and women-owned small business concerns by arranging solicitations, time for the preparatiorvof bids, quantities, specifications, and delivery schedules so as to facilitate the participation by such concerns. Where the Contractor's lists of potential small, veteran - owned' small business, HUBZone small business, small disadvantaged and women -owned small business subcontractors are excessively long, reasonable efforts shall be made to give all such small business concerns an opportunity to compete over a period of time. (2) Provide adequate and timely consideration of the potentialities of small, veteran -owned small business, HUBZone small business, small disadvantaged and women -owned small business concerns in all "make -or -buy" decisions. (3) Counsel and discuss subcontracting opportunities with representatives of small, veteran - owned/ small business, HUBZone small business, small disadvantaged and women -owned small business firms. (4) Provide notice to subcontractors concerning penalties and remedies for misrepresentations of business status as small, veteran -owned small business, HUBZone small business, small disadvantaged or women -owned small business for the purpose of obtaining a subcontract that is to be included as part or all of a goal contained/in the Contractor's subcontracting plan. (f) A master plan on a plant or division -wide basis that contains all the elements required by paragraph (dyof this clause, except goals, may be incorporated by reference as a part of the subcontracting plan required of the offeror by this clause; provided — � 1 The raster plan has been approved; 2; The Jofferor ensures that the master plan is updated as necessary and provides copies of the approved master plan, Including evidence of its approval, to the Contracting Officer; and INITIALS: __. & LESSOR GOVERNMENT GSA FORM 35178 PAGE 25 (REV 9/01) (3)\ Goals and any deviations from the master plan deemed necessary by the Contracting '&(ficer to satisfy the requirements of this contract are set forth in the individual subcontracting plan. (g) A fu commercial n is the preferred type of subcontracting plan for contrac rnishing commercial items: commercial plan shall relate to the offeror's plan subcontracting generally, for both mmercial and Government business, rather an solely to the Government contract. mercial plans are also preferred for subca�ractors that provide commercial items under a me contract, whether or not the prim contractor is supplying a commercial item. (h) Prior compliance of the offeror with er such subcontra g plans under previous contracts will be considered by the Contracting Officer in determ hg the responsibility of the offeror for award of the contract. `\ (i) The failure of the Contractor or subcontractor to>tomply in good faith with — (1) The clause of this contract entitled "U zatimyof Small Business Concerns," or 2 An approved plan required by this Rrause, shatl`be a material breach of the contract. (j) The Contractor shall submit the fo wing reports: (1) Standard Form 294, bcontracting Report for individual Contracts. This report shall be submitted to th ontracting Officer semiannually and`at contract completion. The report covers Subcontract award data related to this contract. This report is not required for meraai plans. (2) Standard rm 295, Summary Subcontract Report. This report encompasses all the contra with the awarding agency. It must be submitted semi- artnually for contracts with t e Department of Defense and annually for contracts with ciWian agencies. If the reporting activity is covered by a commercial plan, the reporting, activity must eport annually all subcontract awards under that plan. All reports submitted at the close of each fiscal year (both individual and commercial plans) shalr- include a breakout, in the Contractor's format, of subcontract awards, in whole dollars,'to small disadvantaged business concerns by North American Industry Classification System (NAICS) Industry Subsector. For a commercial plan, the Contractor may obtain from each of its subcontractors a predominant NAICS Industry Subsector and report all awards to that subcontractor under its predominant NAICS Industry Subsector. 47. 52.219 -16 LIQUIDATED DAMAGES - SUBCONTRACTING PLAN (JAN 1999) (a) Failure to make a good faith effort to comply with the subcontracting plan, as used in this clause, means a willful or intentional failure to perform in accordance with the requirements of the subcontracting plan approved under the clause in this contract entitled "Small Business Subcontracting Plan," or willful or intentional action to frustrate the plan. (b) Performance shall be measured by applying the percentage goals to the total actual subcontracting dollars or, if a commercial plan Is involved, to the pro rata share of actual subcontracting dollars attributable to Government contracts covered by the commercial plan. If, at contract completion or, in the case of a commercial plan, at the close of the fiscal year for which the plan is applicable, the Contractor has failed to meet its subcontracting goals and the Contracting Officer decides in accordance with paragraph (c) of this clause that the Contractor failed to make a good faith effort to comply with its subcontractin plan, established in accordance with the clause in this contract entitled "Small Business Subcontracting Plan," the Contractor shall pay the Government liquidated damages in an amount stated. The amount of probable damages attributable to the Contractor's failure to comply shall be an amount equal to the actual dollar amount by which the Contractor failed to achieve each subcontract goal. (c) Before the Contracting Officer makes a final decision that the Contractor has failed to make such good faith effort, the Contracting Officer shall give the Contractor written notice specifying the failure and permitting the Contractor to demonstrate what good faith efforts have been made and to discuss the matter. Failure to respond to the notice may be taken as an admission that no valid explanation exists. If, after consideration of all the pertinent data, the Contracting Officer finds that the Contractor failed to make a good faith effort to comply with the subcontracting plan, the Contracting Officer shall issue a final decision to that effect and require that the Contractor pay the Government liquidated damages as provided in paragraph (b) of this clause. (d) With respect to commercial plans, the Contracting Officer who approved the plan will perform the functions of the Contracting Officer under this clause on behalf of all agencies with contracts covered by the commercial plan. INITIALS: _ & LESSOR GOVERNMENT GSA FORM 35178 PAGE 26 (REV 9/01) (e) The Contractor shall have the right of appeal, under the clause in this contract entitled Disputes, from any final decision of the Contracting Officer. (f) Liquidated damages shall be in addition to any other remedies that the Government may have. INITIALS: LESSOR GOVERNMENT GSA FORM 35178 PAGE 27 (REV 9101)