04 Staff Report.Open Space Contract with attachment
PREPARED BY: Mike Mathiesen
Wildfire Manager
Reviewed by: Interim Town Manager, Town Attorney, Finance Director, and Parks and Public Works
Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 10/15/2024 ITEM NO: 4
DATE: October 15, 2024
TO: Mayor and Town Council
FROM: Katy Nomura, Interim Town Manager
SUBJECT: Vegetation Management – Townwide Open Spaces Project (CIP No. 832-
4508):
a. Award and Authorize the Town Manager to Execute a Contract with Anvil
Builders Inc. dba Sonoma Tree Surgery in an Amount Not to Exceed
$1,513,712.00; and
b. Authorize Staff to Issue Change Orders in an Amount Not to Exceed 20%
of the Contract Value
RECOMMENDATION:
Vegetation Management – Townwide Open Spaces Project (CIP No. 832-4508):
a. Award and authorize the Town Manager to execute a contract (Attachment 1) with Anvil
Builders Inc. dba Sonoma Tree Surgery in an amount not to exceed $1,513,712.00; and
b. Authorize staff to issue change orders in an amount not to exceed 20% of the contract
value.
BACKGROUND:
The Town of Los Gatos has been working on a vegetation management program since 2020. To
support this work, the Town was awarded funding through the Federal Emergency
Management Agency’s (FEMA) Hazard Mitigation Grant Program for vegetation management in
the Town-owned open spaces of La Rinconada Park, Worcester Park, Novitiate Park, Heintz
Open Space, and Santa Rosa Open Space.
The open space vegetation management project will provide shaded/mosaic fuels reduction
work in the Town-owned spaces noted above. This project will thin underbrush and small trees
and remove dead and dying trees to improve open space health and wildfire resilience.
PAGE 2 OF 4 SUBJECT: Vegetation Management - Townwide Open Spaces (CIP No. 832-4508) DATE: October 10, 2024
This project is intended to:
• Establish healthy, resilient fire adapted ecosystems to protect and conserve the Town’s
natural resources;
• Reduce wildfire risk at residential properties adjacent to Town open spaces; and
• Reduce the severity of catastrophic wildfire by removing and thinning overgrown fuels
in the open spaces.
Project locations include:
• 9.93 acres in Novitiate Park
• 11.33 acres in Worchester Park
• 8.64 acres in La Rinconada Park
• 88.12 acres in Heintz Open Space
• 75.89 acres in Santa Rosa Open Space
Treatment activities will consist of mechanized work in areas with less than 35% slope. Work
will be completed using skid steers and tracked chippers to remove dense stands of understory
vegetation and using chainsaws to thin live trees less than 8-inches in diameter and dead trees
up to 12- inches in diameter. A mosaic understory will be retained for wildlife habitat and soil
erosion control.
This contract will also include two years of maintenance vegetation management in these
spaces.
DISCUSSION:
The project was advertised for bid, with bids due on September 11th, 2024. A summary of bid
results is presented in Table 1. The contract is recommended to be awarded to Anvil Builders
Inc. as the apparent low and responsive bidder.
Table 1. Bid Summary for Vegetation Management in Town Open Spaces (CIP No. 832-4508)
BIDDER NAME BASE BID
Anvil Builders Inc $1,513,712.00
Community Tree Service $1,815,986.00
Bay Area Tree Specialists $2,128,793.22
PAGE 3 OF 4 SUBJECT: Vegetation Management - Townwide Open Spaces (CIP No. 832-4508) DATE: October 10, 2024
CONCLUSION:
Staff recommends awarding and authorizing the Town Manager to execute an agreement with
Anvil Builders Inc. in an amount not to exceed $1,513,722.00 and authorize staff to issue
change orders in an amount not to exceed 20% of the contract value.
COORDINATION:
This project has been coordinated with the Finance Department.
FISCAL IMPACT:
The fiscal table below reflects the budget for Phase 2 of this project, including the requested
FEMA Hazard Mitigation Grant Program funds.
ENVIRONMENTAL ASSESSMENT:
This is a project as defined under CEQA and is covered by the Towns Project Specific Analysis
(PSA) filed with CAL FIRE in Sacramento.
Budget Costs
Phase 2 - Source of Funds
GFAR 530,448$
FEMA Hazard Mitigation Grant 1,627,320$
Total Budget 2,157,768$
Costs
Phase 2 - Expenditures
Previously Authorized Consultant Services Agreement with Sequoia
Ecological Consulting 181,165$
First Amendment to Consultant Services Agreement with Sequoia
Ecological Consulting Including a $1,000 Correction to Original
Agreement (Subject to Another Staff Report on 10-15-24)50,190$
Contractor Services for Vegetation Management (Requested with
this Staff Report)1,513,712$
Contractor Services 20% Contingency for Vegetation Management
(Requested with this Staff Report)302,742$
Total Expenditures 2,047,809$
Total Project Balance 109,958$
Vegetation Management - Town-wide
CIP No. 832-4508
PAGE 4 OF 4 SUBJECT: Vegetation Management - Townwide Open Spaces (CIP No. 832-4508) DATE: October 10, 2024
Attachment:
1. Draft Contract with Anvil Builders Inc. dba Atlas Sonoma Tree Surgery
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Anvil Builders Inc. dba Atlas Sonoma Tree Surgery ATTACHMENT 1
Contract
This public works contract (“Contract”) is entered into by and between Town of Los Gatos
(“Town”) and Anvil Builders Inc. dba Atlas Sonoma Tree Surgery (“Contractor”), for work on the
Vegetation Management Risk Reduction Project (Open Space), Town Project #832-4508,
Federal Project #4407-PJ0506 (“Project”).
The parties agree as follows:
1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a
Bid Proposal to perform the Work to construct the Project. On October 15, 2024, Town
authorized award of this Contract to Contractor for the amount set forth in Section 4,
below. Town has elected to include the following Project alternate(s) in the Contract: No
alternates.
2. Contract Documents. The Contract Documents incorporated into this Contract include
and are comprised of all of the documents listed below. The definitions provided in Article
1 of the General Conditions apply to all of the Contract Documents, including this
Contract.
2.1 Notice Inviting Bids;
2.2 Instructions to Bidders;
2.3 Addenda, if any;
2.4 Bid Proposal and attachments thereto;
2.5 Contract;
2.6 Payment and Performance Bonds;
2.7 General Conditions;
2.8 Special Conditions;
2.9 Project Scope of Work;
2.10 Change Orders, if any;
2.11 Notice of Potential Award;
2.12 Notice to Proceed; and
2.13 The following: Attachments A through F of the Request for Bids.
3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project,
as specified in the Contract Documents. Contractor must provide, furnish, and supply all
things necessary and incidental for the timely performance and completion of the Work,
including all necessary labor, materials, supplies, tools, equipment, transportation, onsite
facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor
must use its best efforts to diligently prosecute and complete the Work in a professional
and expeditious manner and to meet or exceed the performance standards required by
the Contract Documents.
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4. Payment. As full and complete compensation for Contractor’s timely performance and
completion of the Work in strict accordance with the terms and conditions of the Contract
Documents, Town will pay Contractor $1,513,712 (“Contract Price”) for all of Contractor’s
direct and indirect costs to perform the Work, including all labor, materials, supplies,
equipment, taxes, insurance, bonds and all overhead costs, in accordance with the
payment provisions in the General Conditions.
5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all
requirements for Final Completion, within 150 calendar days from the start date set forth
in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives
any claim for delayed early completion.
6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if
Contractor fails to complete the Work within the Contract Time, Town will assess
liquidated damages in the amount of $500 per day for each day of unexcused delay in
achieving Final Completion, and such liquidated damages may be deducted from Town’s
payments due or to become due to Contractor under this Contract.
7. Labor Code Compliance.
7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of
Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages,
working hours and workers’ compensation insurance, as further specified in Article
9 of the General Conditions.
7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements
applicable to the locality in which the Work is to be performed for each craft,
classification or type of worker needed to perform the Work, including employer
payments for health and welfare, pension, vacation, apprenticeship and similar
purposes. Copies of these prevailing rates are available online at
http://www.dir.ca.gov/DLSR.
7.3 DIR Registration. Town may not enter into the Contract with a bidder without
proof that the bidder and its Subcontractors are registered with the California
Department of Industrial Relations to perform public work pursuant to Labor Code
§ 1725.5, subject to limited legal exceptions.
8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this
Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code §
3700 which require every employer to be insured against liability for workers’
compensation or to undertake self-insurance in accordance with the provisions of that
code, and I will comply with such provisions before commencing the performance of the
Work on this Contract.”
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9. Conflicts of Interest. Contractor, its employees, Subcontractors, and agents may not
have, maintain, or acquire a conflict of interest in relation to this Contract in violation of
any Town ordinance or requirement, or in violation of any California law, including
Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government
Code § 81000 et seq. and its accompanying regulations. Any violation of this Section
constitutes a material breach of the Contract.
10. Independent Contractor. Contractor is an independent contractor under this Contract and
will have control of the Work and the means and methods by which it is performed. Contractor
and its Subcontractors are not employees of Town and are not entitled to participate in any
health, retirement, or any other employee benefits from Town.
11. Notice. Any notice, billing, or payment required by or pursuant to the Contract
Documents must be made in writing, signed, dated, and sent to the other party by
personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file.
Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed
effective on the second working day after deposit for delivery. Notice for each party must
be given as follows:
Town:
Finance Department
Town of Los Gatos
110 E. Main St.
Los Gatos, CA 95030
AP@losgatosca.gov
Contractor:
Name: Anvil Builders Inc. dba Atlas Sonoma Tree Surgery
Address: 1550 Park Avenue____________________
City/State/Zip: Emeryville, CA 94608_____________
Phone: 415-285-5000_________________________
Attn: Rich Kingsborough_______________________
Email: Atlas.estimating@atlas-tree.com__________
Copy to:____________________________________
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12. General Provisions.
12.1 Assignment and Successors. Contractor may not assign its rights or obligations
under this Contract, in part or in whole, without Town’s written consent. This
Contract is binding on Contractor’s and Town’s lawful heirs, successors and
permitted assigns.
12.2 Third Party Beneficiaries. There are no intended third-party beneficiaries to this
Contract.
12.3 Governing Law and Venue. This Contract will be governed by California law and
venue will be in the Santa Clara County Superior Court, and no other place.
Contractor waives any right it may have pursuant to Code of Civil Procedure § 394,
to file a motion to transfer any action arising from or relating to this Contract to a
venue outside of Santa Clara County, California.
12.4 Amendment. No amendment or modification of this Contract will be binding
unless it is in a writing duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorporated herein,
including authorized amendments or Change Orders thereto, constitute the final,
complete, and exclusive terms of the agreement between Town and Contractor.
12.6 Severability. If any provision of the Contract Documents is determined to be
illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of
the Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor
certifies, by signing below, that it is not identified on a list created under the Iran
Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person
engaging in investment activities in Iran, as defined in the Act, or is otherwise
expressly exempt under the Act.
12.8 Authorization. Each individual signing below warrants that he or she is authorized
to do so by the party that he or she represents, and that this Contract is legally
binding on that party. If Contractor is a corporation, signatures from two officers
of the corporation are required pursuant to California Corporations Code § 313.
13. FEMA CONTRACT TERMS
13.1 Remedies. Refer to Town of Los Gatos General Conditions Section 11.2(F) which
reads:
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Town’s Remedies. If Contractor or its responsible Subcontractor fails to correct
defective Work within ten calendar days following notice by Town, or sooner if
required by the circumstances, Town may correct the defects to conform with
the Contract Documents at Contractor’s sole expense. Contractor must
reimburse Town for its costs in accordance with subsection 11.2(H).
13.2 Termination for Cause and Convenience. Refer to Town of Los Gatos General
Conditions Article 13.
13.3 Equal Opportunity Employment. During the performance of this contract, the
contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender
identity, or national origin. The Contractor will take affirmative action to
ensure that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, sex, sexual
orientation, gender identity, or national origin. Such action shall include, but
not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided setting forth the
provisions of this nondiscrimination clause.
(2) The Contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the Contractor, state that all qualified applicants
will receive consideration for employment without regard to race, color,
religion, sex, sexual orientation, gender identity, or national origin.
(3) The Contractor will not discharge or in any other manner discriminate
against any employee or applicant for employment because such employee
or applicant has inquired about, discussed, or disclosed the compensation of
the employee or applicant or another employee or applicant. This provision
shall not apply to instances in which an employee who has access to the
compensation information of other employees or applicants as a part of
such employee's essential job functions discloses the compensation of such
other employees or applicants to individuals who do not otherwise have
access to such information, unless such disclosure is in response to a formal
complaint or charge, in furtherance of an investigation, proceeding, hearing,
or action, including an investigation conducted by the employer, or is
consistent with the contractor’s legal duty to furnish information.
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(4) The Contractor will send to each labor union or representative of workers
with which he has a collective bargaining agreement or other contract or
understanding, a notice to be provided advising the said labor union or
workers' representatives of the contractor's commitments under this section
and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
(6) The Contractor will furnish all information and reports required by Executive
Order 11246 of September 24, 1965, and by rules, regulations, and orders of
the Secretary of Labor, or pursuant thereto, and will permit access to his
books, records, and accounts by the administering agency and the Secretary
of Labor for purposes of investigation to ascertain compliance with such
rules, regulations, and orders.
(7) In the event of the Contractor's noncompliance with the nondiscrimination
clauses of this contract or with any of the said rules, regulations, or orders,
this contract may be canceled, terminated, or suspended in whole or in part
and the contractor may be declared ineligible for further Government
contracts or federally assisted construction contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965, and
such other sanctions may be imposed and remedies invoked as provided in
Executive Order 11246 of September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by law.
(8) The Contractor will include the portion of the sentence immediately
preceding paragraph (1) and the provisions of paragraphs (1) through (8) in
every subcontract or purchase order unless exempted by rules, regulations,
or orders of the Secretary of Labor issued pursuant to section 204 of
Executive Order 11246 of September 24, 1965, so that such provisions will
be binding upon each subcontractor or vendor. The Contractor will take such
action with respect to any subcontract or purchase order as the
administering agency may direct as a means of enforcing such provisions,
including sanctions for noncompliance:
Provided, however, that in the event a Contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such
direction by the administering agency, the contractor may request the
United States to enter into such litigation to protect the interests of the
United States.
The Contractor further agrees that it will be bound by the above equal
opportunity clause with respect to its own employment practices when it
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participates in federally assisted construction work: Provided, that if the
Contractor so participating is a state or local government, the above equal
opportunity clause is not applicable to any agency, instrumentality or
subdivision of such government which does not participate in work on or
under the contract.
The Contractor agrees that it will assist and cooperate actively with the
administering agency and the Secretary of Labor in obtaining the compliance
of contractors and subcontractors with the equal opportunity clause and the
rules, regulations, and relevant orders of the Secretary of Labor, that it will
furnish the administering agency and the Secretary of Labor such
information as they may require for the supervision of such compliance, and
that it will otherwise assist the administering agency in the discharge of the
agency's primary responsibility for securing compliance.
The Contractor further agrees that it will refrain from entering into any
contract or contract modification subject to Executive Order 11246 of
September 24, 1965, with a contractor debarred from, or who has not
demonstrated eligibility for, Government contracts and federally assisted
construction contracts pursuant to the Executive Order and will carry out
such sanctions and penalties for violation of the equal opportunity clause as
may be imposed upon contractors and subcontractors by the administering
agency or the Secretary of Labor pursuant to Part II, Subpart D of the
Executive Order. In addition, the Contractor agrees that if it fails or refuses
to comply with these undertakings, the administering agency may take any
or all of the following actions: Cancel, terminate, or suspend in whole or in
part this grant (contract, loan, insurance, guarantee); refrain from extending
any further assistance to the applicant under the program with respect to
which the failure or refund occurred until satisfactory assurance of future
compliance has been received from such applicant; and refer the case to the
Department of Justice for appropriate legal proceedings
13.4 Davis Bacon Act. Contractor agrees to the following provisions and clauses of the
Davis Bacon Act.
(1) Minimum wages—(i) Wage rates and fringe benefits. All laborers and
mechanics employed or working upon the site of the work (or otherwise working
in construction or development of the project under a development statute), will
be paid unconditionally and not less often than once a week, and without
subsequent deduction or rebate on any account (except such payroll deductions
as are permitted by regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR part 3)), the full amount of basic hourly wages and bona
fide fringe benefits (or cash equivalents thereof) due at time of payment
computed at rates not less than those contained in the wage determination of
the Secretary of Labor which is attached hereto and made a part hereof,
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regardless of any contractual relationship which may be alleged to exist between
the contractor and such laborers and mechanics. As provided in paragraphs (d)
and (e) of this section, the appropriate wage determinations are effective by
operation of law even if they have not been attached to the contract.
Contributions made or costs reasonably anticipated for bona fide fringe benefits
under the Davis-Bacon Act (40 U.S.C. 3141(2)(B)) on behalf of laborers or
mechanics are considered wages paid to such laborers or mechanics, subject to
the provisions of paragraph (a)(1)(v) of this section; also, regular contributions
made or costs incurred for more than a weekly period (but not less often than
quarterly) under plans, funds, or programs which cover the particular weekly
period, are deemed to be constructively made or incurred during such weekly
period. Such laborers and mechanics must be paid the appropriate wage rate
and fringe benefits on the wage determination for the classification(s) of work
actually performed, without regard to skill, except as provided in paragraph
(a)(4) of this section. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for
the time actually worked therein: Provided, That the employer's payroll records
accurately set forth the time spent in each classification in which work is
performed. The wage determination (including any additional classifications and
wage rates conformed under paragraph (a)(1)(iii) of this section) and the Davis-
Bacon poster (WH-1321) must be posted at all times by the contractor and its
subcontractors at the site of the work in a prominent and accessible place where
it can be easily seen by the workers.
(ii) Frequently recurring classifications.
(A) In addition to wage and fringe benefit rates that have been
determined to be prevailing under the procedures set forth in 29 CFR
part 1, a wage determination may contain, pursuant to § 1.3(f), wage and
fringe benefit rates for classifications of laborers and mechanics for which
conformance requests are regularly submitted pursuant to paragraph
(a)(1)(iii) of this section, provided that:
(1) The work performed by the classification is not performed by a
classification in the wage determination for which a prevailing wage rate
has been determined;
(2) The classification is used in the area by the construction industry; and
(3) The wage rate for the classification bears a reasonable relationship to
the prevailing wage rates contained in the wage determination.
(B) The Administrator will establish wage rates for such classifications in
accordance with paragraph (a)(1)(iii)(A)(3) of this section. Work
performed in such a classification must be paid at no less than the wage
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and fringe benefit rate listed on the wage determination for such
classification.
(iii) Conformance.
(A) The contracting officer must require that any class of laborers or
mechanics, including helpers, which is not listed in the wage
determination and which is to be employed under the contract be
classified in conformance with the wage determination. Conformance of
an additional classification and wage rate and fringe benefits is
appropriate only when the following criteria have been met:
(1) The work to be performed by the classification requested is not
performed by a classification in the wage determination; and
(2) The classification is used in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears
a reasonable relationship to the wage rates contained in the wage
determination.
(B) The conformance process may not be used to split, subdivide, or
otherwise avoid application of classifications listed in the wage
determination.
(C) If the contractor and the laborers and mechanics to be employed in
the classification (if known), or their representatives, and the contracting
officer agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of the action
taken will be sent by the contracting officer by email
to DBAconformance@dol.gov. The Administrator, or an authorized
representative, will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within the 30-day
period that additional time is necessary.
(D) In the event the contractor, the laborers or mechanics to be
employed in the classification or their representatives, and the
contracting officer do not agree on the proposed classification and wage
rate (including the amount designated for fringe benefits, where
appropriate), the contracting officer will, by email
to DBAconformance@dol.gov, refer the questions, including the views of
all interested parties and the recommendation of the contracting officer,
to the Administrator for determination. The Administrator, or an
authorized representative, will issue a determination within 30 days of
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receipt and so advise the contracting officer or will notify the contracting
officer within the 30-day period that additional time is necessary.
(E) The contracting officer must promptly notify the contractor of the
action taken by the Wage and Hour Division under paragraphs
(a)(1)(iii)(C) and (D) of this section. The contractor must furnish a written
copy of such determination to each affected worker or it must be posted
as a part of the wage determination. The wage rate (including fringe
benefits where appropriate) determined pursuant to paragraph
(a)(1)(iii)(C) or (D) of this section must be paid to all workers performing
work in the classification under this contract from the first day on which
work is performed in the classification.
(iv) Fringe benefits not expressed as an hourly rate. Whenever the minimum
wage rate prescribed in the contract for a class of laborers or mechanics
includes a fringe benefit which is not expressed as an hourly rate, the
contractor may either pay the benefit as stated in the wage determination or
may pay another bona fide fringe benefit or an hourly cash equivalent
thereof.
(v) Unfunded plans. If the contractor does not make payments to a trustee
or other third person, the contractor may consider as part of the wages of
any laborer or mechanic the amount of any costs reasonably anticipated in
providing bona fide fringe benefits under a plan or program, Provided, That
the Secretary of Labor has found, upon the written request of the contractor,
in accordance with the criteria set forth in § 5.28, that the applicable
standards of the Davis-Bacon Act have been met. The Secretary of Labor may
require the contractor to set aside in a separate account assets for the
meeting of obligations under the plan or program.
(vi) Interest. In the event of a failure to pay all or part of the wages required
by the contract, the contractor will be required to pay interest on any
underpayment of wages.
(2) Withholding—(i) Withholding requirements. The [write in name of Federal
agency or the recipient of Federal assistance] may, upon its own action, or must,
upon written request of an authorized representative of the Department of
Labor, withhold or cause to be withheld from the contractor so much of the
accrued payments or advances as may be considered necessary to satisfy the
liabilities of the prime contractor or any subcontractor for the full amount of
wages and monetary relief, including interest, required by the clauses set forth
in paragraph (a) of this section for violations of this contract, or to satisfy any
such liabilities required by any other Federal contract, or federally assisted
contract subject to Davis-Bacon labor standards, that is held by the same prime
contractor (as defined in § 5.2). The necessary funds may be withheld from the
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contractor under this contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract that is subject to Davis-Bacon
labor standards requirements and is held by the same prime contractor,
regardless of whether the other contract was awarded or assisted by the same
agency, and such funds may be used to satisfy the contractor liability for which
the funds were withheld. In the event of a contractor's failure to pay any laborer
or mechanic, including any apprentice or helper working on the site of the work
(or otherwise working in construction or development of the project under a
development statute) all or part of the wages required by the contract, or upon
the contractor's failure to submit the required records as discussed in paragraph
(a)(3)(iv) of this section, the [Agency] may on its own initiative and after written
notice to the contractor, sponsor, applicant, owner, or other entity, as the case
may be, take such action as may be necessary to cause the suspension of any
further payment, advance, or guarantee of funds until such violations have
ceased.
(ii) Priority to withheld funds. The Department has priority to funds withheld
or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this
section, or both, over claims to those funds by:
(A) A contractor's surety(ies), including without limitation performance
bond sureties and payment bond sureties;
(B) A contracting agency for its reprocurement costs;
(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or
both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;
(D) A contractor's assignee(s);
(E) A contractor's successor(s); or
(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-3907.
(3) Records and certified payrolls—(i) Basic record requirements—(A) Length of
record retention. All regular payrolls and other basic records must be maintained
by the contractor and any subcontractor during the course of the work and
preserved for all laborers and mechanics working at the site of the work (or
otherwise working in construction or development of the project under a
development statute) for a period of at least 3 years after all the work on the
prime contract is completed.
(B) Information required. Such records must contain the name; Social
Security number; last known address, telephone number, and email
address of each such worker; each worker's correct classification(s) of
work actually performed; hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or cash
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equivalents thereof of the types described in 40 U.S.C. 3141(2)(B) of
the Davis-Bacon Act); daily and weekly number of hours actually worked
in total and on each covered contract; deductions made; and actual
wages paid.
(C) Additional records relating to fringe benefits. Whenever the
Secretary of Labor has found under paragraph (a)(1)(v) of this section
that the wages of any laborer or mechanic include the amount of any
costs reasonably anticipated in providing benefits under a plan or
program described in 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act, the
contractor must maintain records which show that the commitment to
provide such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and
records which show the costs anticipated or the actual cost incurred in
providing such benefits.
(D) Additional records relating to apprenticeship. Contractors with
apprentices working under approved programs must maintain written
evidence of the registration of apprenticeship programs, the registration
of the apprentices, and the ratios and wage rates prescribed in the
applicable programs.
(ii) Certified payroll requirements—(A) Frequency and method of
submission. The contractor or subcontractor must submit weekly, for each
week in which any DBA- or Related Acts-covered work is performed, certified
payrolls to the [write in name of appropriate Federal agency] if the agency is
a party to the contract, but if the agency is not such a party, the contractor
will submit the certified payrolls to the applicant, sponsor, owner, or other
entity, as the case may be, that maintains such records, for transmission to
the [write in name of agency]. The prime contractor is responsible for the
submission of all certified payrolls by all subcontractors. A contracting agency
or prime contractor may permit or require contractors to submit certified
payrolls through an electronic system, as long as the electronic system
requires a legally valid electronic signature; the system allows the contractor,
the contracting agency, and the Department of Labor to access the certified
payrolls upon request for at least 3 years after the work on the prime
contract has been completed; and the contracting agency or prime
contractor permits other methods of submission in situations where the
contractor is unable or limited in its ability to use or access the electronic
system.
(B) Information required. The certified payrolls submitted must set out
accurately and completely all of the information required to be
maintained under paragraph (a)(3)(i)(B) of this section, except that full
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Social Security numbers and last known addresses, telephone numbers,
and email addresses must not be included on weekly transmittals.
Instead, the certified payrolls need only include an individually identifying
number for each worker (e.g., the last four digits of the worker's Social
Security number). The required weekly certified payroll information may
be submitted using Optional Form WH-347 or in any other format
desired. Optional Form WH-347 is available for this purpose from the
Wage and Hour Division website
at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347/.pdf
or its successor website. It is not a violation of this section for a prime
contractor to require a subcontractor to provide full Social Security
numbers and last known addresses, telephone numbers, and email
addresses to the prime contractor for its own records, without weekly
submission by the subcontractor to the sponsoring government agency
(or the applicant, sponsor, owner, or other entity, as the case may be,
that maintains such records).
(C) Statement of Compliance. Each certified payroll submitted must be
accompanied by a “Statement of Compliance,” signed by the contractor
or subcontractor, or the contractor's or subcontractor's agent who pays
or supervises the payment of the persons working on the contract, and
must certify the following:
(1) That the certified payroll for the payroll period contains the
information required to be provided under paragraph (a)(3)(ii) of this
section, the appropriate information and basic records are being
maintained under paragraph (a)(3)(i) of this section, and such
information and records are correct and complete;
(2) That each laborer or mechanic (including each helper and apprentice)
working on the contract during the payroll period has been paid the full
weekly wages earned, without rebate, either directly or indirectly, and
that no deductions have been made either directly or indirectly from the
full wages earned, other than permissible deductions as set forth in 29
CFR part 3; and
(3) That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for the
classification(s) of work actually performed, as specified in the applicable
wage determination incorporated into the contract.
(D) Use of Optional Form WH-347. The weekly submission of a properly
executed certification set forth on the reverse side of Optional Form WH-
347 will satisfy the requirement for submission of the “Statement of
Compliance” required by paragraph (a)(3)(ii)(C) of this section.
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(E) Signature. The signature by the contractor, subcontractor, or the
contractor's or subcontractor's agent must be an original handwritten
signature or a legally valid electronic signature.
(F) Falsification. The falsification of any of the above certifications may
subject the contractor or subcontractor to civil or criminal prosecution
under 18 U.S.C. 1001 and 31 U.S.C. 3729.
(G) Length of certified payroll retention. The contractor or subcontractor
must preserve all certified payrolls during the course of the work and for
a period of 3 years after all the work on the prime contract is completed.
(iii) Contracts, subcontracts, and related documents. The contractor or
subcontractor must maintain this contract or subcontract and related
documents including, without limitation, bids, proposals, amendments,
modifications, and extensions. The contractor or subcontractor must
preserve these contracts, subcontracts, and related documents during the
course of the work and for a period of 3 years after all the work on the prime
contract is completed.
(iv) Required disclosures and access—(A) Required record disclosures and
access to workers. The contractor or subcontractor must make the records
required under paragraphs (a)(3)(i) through (iii) of this section, and any other
documents that the [write the name of the agency] or the Department of
Labor deems necessary to determine compliance with the labor standards
provisions of any of the applicable statutes referenced by § 5.1, available for
inspection, copying, or transcription by authorized representatives of the
[write the name of the agency] or the Department of Labor, and must permit
such representatives to interview workers during working hours on the job.
(B) Sanctions for non-compliance with records and worker access
requirements. If the contractor or subcontractor fails to submit the
required records or to make them available, or refuses to permit worker
interviews during working hours on the job, the Federal agency may,
after written notice to the contractor, sponsor, applicant, owner, or other
entity, as the case may be, that maintains such records or that employs
such workers, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to
make such records available, or to permit worker interviews during
working hours on the job, may be grounds for debarment action pursuant
to § 5.12. In addition, any contractor or other person that fails to submit
the required records or make those records available to WHD within the
time WHD requests that the records be produced will be precluded from
introducing as evidence in an administrative proceeding under 29 CFR
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part 6 any of the required records that were not provided or made
available to WHD. WHD will take into consideration a reasonable request
from the contractor or person for an extension of the time for submission
of records. WHD will determine the reasonableness of the request and
may consider, among other things, the location of the records and the
volume of production.
(C) Required information disclosures. Contractors and subcontractors
must maintain the full Social Security number and last known address,
telephone number, and email address of each covered worker, and must
provide them upon request to the [write in name of appropriate Federal
agency] if the agency is a party to the contract, or to the Wage and Hour
Division of the Department of Labor. If the Federal agency is not such a
party to the contract, the contractor, subcontractor, or both, must, upon
request, provide the full Social Security number and last known address,
telephone number, and email address of each covered worker to the
applicant, sponsor, owner, or other entity, as the case may be, that
maintains such records, for transmission to the [write in name of agency],
the contractor, or the Wage and Hour Division of the Department of
Labor for purposes of an investigation or other compliance action.
(4) Apprentices and equal employment opportunity—(i) Apprentices—(A) Rate
of pay. Apprentices will be permitted to work at less than the predetermined
rate for the work they perform when they are employed pursuant to and
individually registered in a bona fide apprenticeship program registered with the
U.S. Department of Labor, Employment and Training Administration, Office of
Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the
OA. A person who is not individually registered in the program, but who has
been certified by the OA or a State Apprenticeship Agency (where appropriate)
to be eligible for probationary employment as an apprentice, will be permitted
to work at less than the predetermined rate for the work they perform in the
first 90 days of probationary employment as an apprentice in such a program. In
the event the OA or a State Apprenticeship Agency recognized by the OA
withdraws approval of an apprenticeship program, the contractor will no longer
be permitted to use apprentices at less than the applicable predetermined rate
for the work performed until an acceptable program is approved.
(B) Fringe benefits. Apprentices must be paid fringe benefits in
accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage
determination for the applicable classification. If the Administrator
determines that a different practice prevails for the applicable apprentice
classification, fringe benefits must be paid in accordance with that
determination.
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(C) Apprenticeship ratio. The allowable ratio of apprentices to
journeyworkers on the job site in any craft classification must not be
greater than the ratio permitted to the contractor as to the entire work
force under the registered program or the ratio applicable to the locality
of the project pursuant to paragraph (a)(4)(i)(D) of this section. Any
worker listed on a payroll at an apprentice wage rate, who is not
registered or otherwise employed as stated in paragraph (a)(4)(i)(A) of
this section, must be paid not less than the applicable wage rate on the
wage determination for the classification of work actually performed. In
addition, any apprentice performing work on the job site in excess of the
ratio permitted under this section must be paid not less than the
applicable wage rate on the wage determination for the work actually
performed.
(D) Reciprocity of ratios and wage rates. Where a contractor is
performing construction on a project in a locality other than the locality
in which its program is registered, the ratios and wage rates (expressed in
percentages of the journeyworker's hourly rate) applicable within the
locality in which the construction is being performed must be observed. If
there is no applicable ratio or wage rate for the locality of the project, the
ratio and wage rate specified in the contractor's registered program must
be observed.
(ii) Equal employment opportunity. The use of apprentices and
journeyworkers under this part must be in conformity with the equal
employment opportunity requirements of Executive Order 11246, as
amended, and 29 CFR part 30.
(5) Compliance with Copeland Act requirements. The contractor shall comply
with the requirements of 29 CFR part 3, which are incorporated by reference in
this contract.
(6) Subcontracts. The contractor or subcontractor must insert in any
subcontracts the clauses contained in paragraphs (a)(1) through (11) of this
section, along with the applicable wage determination(s) and such other clauses
or contract modifications as the [write in the name of the Federal agency] may
by appropriate instructions require, and a clause requiring the subcontractors to
include these clauses and wage determination(s) in any lower tier subcontracts.
The prime contractor is responsible for the compliance by any subcontractor or
lower tier subcontractor with all the contract clauses in this section. In the event
of any violations of these clauses, the prime contractor and any subcontractor(s)
responsible will be liable for any unpaid wages and monetary relief, including
interest from the date of the underpayment or loss, due to any workers of lower-
tier subcontractors, and may be subject to debarment, as appropriate.
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(7) Contract termination: debarment. A breach of the contract clauses in 29 CFR
5.5 may be grounds for termination of the contract, and for debarment as a
contractor and a subcontractor as provided in 29 CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and
interpretations of the Davis-Bacon and Related Acts contained in 29 CFR
parts 1, 3, and 5 are herein incorporated by reference in this contract.
(9) Disputes concerning labor standards. Disputes arising out of the labor
standards provisions of this contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7.
Disputes within the meaning of this clause include disputes between the
contractor (or any of its subcontractors) and the contracting agency, the
U.S. Department of Labor, or the employees or their representatives.
(10) Certification of eligibility.
(i) By entering into this contract, the contractor certifies that neither it nor
any person or firm who has an interest in the contractor's firm is a person or
firm ineligible to be awarded Government contracts by virtue of 40 U.S.C.
3144(b) or § 5.12(a).
(ii) No part of this contract shall be subcontracted to any person or firm
ineligible for award of a Government contract by virtue of 40 U.S.C.
3144(b) or § 5.12(a).
(iii) The penalty for making false statements is prescribed in the U.S. Code,
Title 18 Crimes and Criminal Procedure, 18 U.S.C. 1001.
13.5 Copeland Anit-Kickback Act. Contractor. The contractor shall comply with 18
U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be
applicable, which are incorporated by reference into this contract.
Subcontracts. The contractor or subcontractor shall insert in any subcontracts
the clause above and such other clauses as the federal agency may by
appropriate instructions require, and also a clause requiring the subcontractors
to include these clauses in any lower tier subcontracts. The prime contractor
shall be responsible for the compliance by any subcontractor or lower tier
subcontractor with all of these contract clauses.
Breach. A breach of the contract clauses above may be grounds for termination
of the contract, and for debarment.
13.6 Contract Work Hours and Safety Standards Act.
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(1) Overtime requirements. No contractor or subcontractor contracting for any
part of the contract work which may require or involve the employment of
laborers or mechanics shall require or permit any such laborer or mechanic in
any workweek in which he or she is employed on such work to work in excess
of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of
pay for all hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of
any violation of the clause set forth in paragraph (1) of this section the
contractor and any subcontractor responsible therefor shall be liable for the
unpaid wages and interest from the date of the underpayment. In addition,
such contractor and subcontractor shall be liable to the United States (in the
case of work done under contract for the District of Columbia or a territory,
to such District or to such territory), for liquidated damages. Such liquidated
damages shall be computed with respect to each individual laborer or
mechanic, including watchpersons and guards, employed in violation of the
clause set forth in paragraph (1) of this section, in the sum of $32 for each
calendar day on which such individual was required or permitted to work in
excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (b)(1).
(3) Withholding for unpaid wages and liquidated damages —
(i) Withholding process. The Town of Los Gatos may, upon its own action,
or must, upon written request of an authorized representative of the
Department of Labor, withhold or cause to be withheld from the
contractor so much of the accrued payments or advances as may be
considered necessary to satisfy the liabilities of the prime contractor
or any subcontractor for any unpaid wages; monetary relief, including
interest; and liquidated damages required by the clauses set forth in
this section 5.6(2) on this contract, any other Federal contract with
the same prime contractor, or any other federally assisted contract
subject to the Contract Work Hours and Safety Standards Act that is
held by the same prime contractor (as defined in § 5.2). The
necessary funds may be withheld from the contractor under this
contract, any other Federal contract with the same prime contractor,
or any other federally assisted contract that is subject to the Contract
Work Hours and Safety Standards Act and is held by the same prime
contractor, regardless of whether the other contract was awarded or
assisted by the same agency, and such funds may be used to satisfy
the contractor liability for which the funds were withheld.
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(ii) Priority to withheld funds. The Town has priority to funds withheld or
to be withheld in accordance with this section over claims to those
funds by:
(A) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(B) A contracting agency for its reprocurement costs;
(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or
both) in bankruptcy of a contractor, or a contractor's bankruptcy
estate;
(D) A contractor's assignee(s);
(E) A contractor's successor(s); or
(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-
3907.
(4) Subcontracts. The contractor or subcontractor must insert in any
subcontracts the clauses set forth in this section and a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The
prime contractor is responsible for compliance by any subcontractor or lower
tier subcontractor with the clauses set forth. In the event of any violations of
these clauses, the prime contractor and any subcontractor(s) responsible will
be liable for any unpaid wages and monetary relief, including interest from
the date of the underpayment or loss, due to any workers of lower-tier
subcontractors, and associated liquidated damages and may be subject to
debarment, as appropriate.
13.7 Rights to Inventions Made Under a Contract or Agreement. Any inventions
made related to this Agreement and associated work is subject to the provisions
of 37 CFR Part 401, as applicable.
13.8 Clean Air Act and Federal Water Pollution Control Act.
Clean Air Act
The contractor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et
seq.
The contractor agrees to report each violation to the (insert name of non-federal
entity entering into the contract) and understands and agrees that the (insert
name of the non- federal entity entering into the contract) will, in turn, report
each violation as required to assure notification to the Federal Emergency
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Management Agency (FEMA), and the appropriate Environmental Protection
Agency Regional Office.
The contractor agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with federal assistance provided
by FEMA.
Federal Water Pollution Control Act
The contractor agrees to comply with all applicable standards, orders, or
regulations issued pursuant to the federal Water Pollution Control Act, as
amended, 33 U.S.C. § 1251 et seq.
The contractor agrees to report each violation to the (insert name of the non-
federal entity entering into the contract) and understands and agrees that the
(insert name of the non- federal entity entering into the contract) will, in turn,
report each violation as required to assure notification to the (insert name of the
pass-through entity, if applicable), Federal Emergency Management Agency
(FEMA), and the appropriate Environmental Protection Agency Regional Office.
The contractor agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with federal assistance provided
by FEMA.”
13.9 Debarment and Suspension. This contract is a covered transaction for purposes
of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the contractor is required to
verify that none of the contractor, its principals (defined at 2 C.F.R. § 180.995),
or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R.
§180.940) or disqualified (defined at 2 C.F.R. § 180.935).
The contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt.
3000, subpart C and must include a requirement to comply with these
regulations in any lower tier covered transaction it enters into.
This certification is a material representation of fact relied upon by the Town of
Los Gatos. If it is later determined that the contractor did not comply with 2
C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies
available to the Town of Los Gatos the Federal Government may pursue available
remedies, including but not limited to suspension and/or debarment. The Town
will insure the Contractor and any lower participants are not debarred by
checking the government’s System Award Management (SAM).
The Bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt.
180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and
throughout the period of any contract that may arise from this offer. The Bidder
or proposer further agrees to include a provision requiring such compliance in its
lower tier covered transactions.
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13.10 Byrd Anti-Lobbying Amendment. Contractors who apply or bid for an award of
more than $100,000 shall file the required certification. Each tier certifies to the
tier above that it will not and has not used federally appropriated funds to pay
any person or organization for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, officer or employee of
Congress, or an employee of a Member of Congress in connection with obtaining
any federal contract, grant, or any other award covered by 31 U.S.C. § 1352.
Each tier shall also disclose any lobbying with non-federal funds that takes place
in connection with obtaining any federal award. Such disclosures are forwarded
from tier to tier up to the recipient who in turn will forward the certification(s) to
the federal awarding agency.
13.11 Procurement of Recovered Materials. In the performance of this contract, the
Contractor shall make maximum use of products containing recovered materials
that are EPA-designated items unless the product cannot be acquired:
(1) Competitively within a timeframe providing for compliance with the contract
performance schedule;
(2) Meeting contract performance requirements; or
(3) At a reasonable price.
Information about this requirement, along with the list of EPA-designated items,
is available at EPA’s Comprehensive Procurement Guidelines webpage:
https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-
program.
The Contractor also agrees to comply with all other applicable requirements of
Section 6002 of the Solid Waste Disposal Act
13.12 Prohibition on Contracting for Covered Telecommunications Equipment or
Services.
(a) Definitions. As used in this clause, the terms backhaul; covered foreign
country; covered telecommunications equipment or services;
interconnection arrangements; roaming; substantial or essential
component; and telecommunications equipment or services have the
meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending
FEMA Award Funds for Covered Telecommunications Equipment or
Services (Interim), as used in this clause.
(b) Prohibitions.
(1) Section 889(b) of the John S. McCain National Defense Authorization
Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216
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prohibit the head of an executive agency on or after Aug.13, 2020,
from obligating or expending grant, cooperative agreement, loan, or
loan guarantee funds on certain telecommunications products or from
certain entities for national security reasons.
(2) Unless an exception in paragraph (c) of this clause applies, the
contractor and its subcontractors may not use grant, cooperative
agreement, loan, or loan guarantee funds from the Federal Emergency
Management Agency to:
(i) Procure or obtain any equipment, system, or service that uses
covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical
technology of any system;
(ii) Enter into, extend, or renew a contract to procure or obtain any
equipment, system, or service that uses covered
telecommunications equipment or services as a substantial or
essential component of any system, or as critical technology of any
system;
(iii) Enter into, extend, or renew contracts with entities that use
covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical
technology as part of any system; or
(iv) Provide, as part of its performance of this contract, subcontract, or
other contractual instrument, any equipment, system, or service
that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical
technology as part of any system.
(c) Exceptions.
(1) This clause does not prohibit contractors from providing—
(i) A service that connects to the facilities of a third-party, such as
backhaul, roaming, or interconnection arrangements; or
(ii) Telecommunications equipment that cannot route or redirect user
data traffic or permit visibility into any user data or packets that
such equipment transmits or otherwise handles.
(2) By necessary implication and regulation, the prohibitions also do not
apply to:
(i) Covered telecommunications equipment or services that:
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i. Are not used as a substantial or essential component of
any system; and
ii. Are not used as critical technology of any system.
(ii) Other telecommunications equipment or services that are not
considered covered telecommunications equipment or services.
(d) Reporting requirement.
(1) In the event the contractor identifies covered telecommunications
equipment or services used as a substantial or essential component of
any system, or as critical technology as part of any system, during
contract performance, or the contractor is notified of such by a
subcontractor at any tier or by any other source, the contractor shall
report the information in paragraph (d)(2) of this clause to the
recipient or subrecipient, unless elsewhere in this contract are
established procedures for reporting the information.
(2) The Contractor shall report the following information pursuant to
paragraph (d)(1) of this clause:
(i) Within one business day from the date of such identification or
notification: The contract number; the order number(s), if
applicable; supplier name; supplier unique entity identifier (if
known); supplier Commercial and Government Entity (CAGE) code
(if known); brand; model number (original equipment
manufacturer number, manufacturer part number, or wholesaler
number); item description; and any readily available information
about mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the information in
paragraph (d)(2)(i) of this clause: Any further available information
about mitigation actions undertaken or recommended. In
addition, the contractor shall describe the efforts it undertook to
prevent use or submission of covered telecommunications
equipment or services, and any additional efforts that will be
incorporated to prevent future use or submission of covered
telecommunications equipment or services.
(e) Subcontracts. The Contractor shall insert the substance of this clause,
including this paragraph (e), in all subcontracts and other contractual
instruments,
13.13 Domestic Preferences for Procurements. As appropriate, and to the extent
consistent with law, the contractor should, to the greatest extent practicable,
provide a preference for the purchase, acquisition, or use of goods, products, or
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materials produced in the United States. This includes, but is not limited to iron,
aluminum, steel, cement, and other manufactured products.
For purposes of this clause:
Produced in the United States means, for iron and steel products, that all
manufacturing processes, from the initial melting stage through the application
of coatings, occurred in the United States.
Manufactured products mean items and construction materials composed in
whole or in part of non-ferrous metals such as aluminum; plastics and polymer-
based products such as polyvinyl chloride pipe; aggregates such as concrete;
glass, including optical fiber; and lumber.
13.14 Access to Records. The Contractor agrees to provide the Town, the FEMA
Administrator, the Comptroller General of the United States, or any of their
authorized representatives access to any books, documents, papers, and records
of the Contractor which are directly pertinent to this contract for the purposes of
making audits, examinations, excerpts, and transcriptions.
The Contractor agrees to permit any of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
The Contractor agrees to provide the FEMA Administrator or his authorized
representatives access to construction or other work sites pertaining to the work
being completed under the contract.
In addition to the reports specified in this Agreement, Contractor shall retain the
records required by the applicable provisions of 2 CFR § 200.333, no less than
three (3) years after Town’s final payment to Consultant under this Agreement
and provide the Town with the reports required pursuant to 2 CFR §§ 200.328
and 200.343, and such other records and reports as the Town may reasonably
require in the administration of this Agreement. Contractor shall keep all other
necessary books and records, including property, personnel, loan documentation
and financial records, in connection with the operation and services performed
under this Agreement, in accordance with 2 CFR §200.333.
13.15 Changes in Scope of Work or Work Schedule.
(a) Any change in the scope of work to be done, method of performance,
nature of materials or price thereof, work schedule changing the number of
working days, or to any other matter materially affecting the performance or
nature of the services will not be paid for or accepted unless such change,
addition or deletion is approved in advance by the Town, in a written
amendment or Contract Change Order.
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(b) The changes will be set forth in an amendment or written Contract
Change Orders which specify the work to be done in connection with the
changes, the basis of compensation for the work, and any adjustments to the
work schedule or work completion date. Such Change Orders shall be approved
by the Town. Upon receipt of an approved Contract Change Order, or of a
written authorization from the Town setting forth a description of the change
and agreed upon changes in contract price, the Contractor shall proceed with
the work so ordered.
(c) In the absence of an approved amendment or Contract Change Order or
written authorization, the Contractor shall not be entitled to payment for any
changed or extra work or any adjustment to the work schedule or work
completion date.
(d) When the changes increase or decrease the cost of the work, an
adjustment of the Contract price will be made as set forth in the Change Order.
Contractor shall receive compensation at the fees and rates previously agreed
upon in writing.
(e) Contractor shall not be entitled to an adjustment in the compensation or
work schedule for delay, disruption, or interference caused by or within the
control of Contractor. Delay, disruption, and interference attributable to and
within the control of a subcontractor or supplier shall be deemed to be within
the control of contractor.
13.16 DHS Logo, Seal and Flags. The contractor shall not use the DHS seal(s), logos,
crests, or reproductions of flags or likenesses of DHS agency officials without
specific FEMA pre-approval. The contractor shall include this provision in any
subcontracts.
13.17 Compliance with Federal Law, Regulations, and Executive Orders and
Acknowledgement of Federal Funding. This is an acknowledgement that FEMA
financial assistance will be used to fund all or a portion of the contract. The
contractor will comply with all applicable federal law, regulations, executive
orders, FEMA policies, procedures, and directives.
13.18 No Obligation by Federal Government. The Federal Government is not a party
to this contract and is not subject to any obligations or liabilities to the non-
Federal entity, Consultant, or any other party pertaining to any matter resulting
from the contract.
13.19 Program Fraud and False or Fraudulent Statements of Related Acts. The
contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for
False Claims and Statements) applies to the contractor’s actions pertaining to
this contract.
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Anvil Builders Inc. dba Atlas Sonoma Tree Surgery ATTACHMENT 1
13.20 Affirmative Socioeconomic Steps. If subcontracts are to be let, the prime
contractor is required to take all necessary steps identified in 2 C.F.R. §
200.321(b)(1)-(5) to ensure that small and minority businesses, women’s
business enterprises, and labor surplus area firms are used when possible.
13.21 License and Delivery of Works Subject to Copyright and Data Rights. The
Contractor grants to the Town, a paid-up, royalty-free, nonexclusive, irrevocable,
worldwide license in data first produced in the performance of this contract to
reproduce, publish, or otherwise use, including prepare derivative works,
distribute copies to the public, and perform publicly and display publicly such
data. For data required by the contract but not first produced in the
performance of this contract, the Contractor will identify such data and grant to
the Town or acquires on its behalf a license of the same scope as for data first
produced in the performance of this contract. Data, as used herein, shall include
any work subject to copyright under 17 U.S.C. § 102, for example, any written
reports or literary works, software and/or source code, music, choreography,
pictures or images, graphics, sculptures, videos, motion pictures or other
audiovisual works, sound and/or video recordings, and architectural works. Upon
or before the completion of this contract, the Contractor will deliver to the Town
data first produced in the performance of this contract and data required by the
contract but not first produced in the performance of this contract in formats
acceptable by the Town.
[Signatures are on the following page.]
Page 27 of 28 Contract
Anvil Builders Inc. dba Atlas Sonoma Tree Surgery ATTACHMENT 1
The parties agree to this Contract as witnessed by the signatures below:
CITY: Approved as to form:
s/_______________________________ s/__________________________________
Katy Nomura, Interim Town Manager__ Gabrielle, Whelan, Town Attorney________
Date: ___________________________ Date: ______________________________
Attest:
s/_______________________________
Wendy Wood, CMC, Town Clerk______
Date: ___________________________
CONTRACTOR: Anvil Builders Inc. dba Atlas Sonoma Tree Surgery
s/_______________________________ Seal:
Alan Guy, President
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
_________________________________
Name, Title
Date: ____________________________
1107726 7-31-2025, C61/D49 C31 A________
Contractor’s California License Number(s) and Expiration Date(s)
END OF CONTRACT
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