HomeMy WebLinkAbout1L OCRCITY COUNCIL STAFF REPORT
DATE: JANUARY 27, 2022 CONSENT CALENDAR
SUBJECT: AWARD GOODS PURCHASE AGREEMENT NO. A9030 WITH MARCO
INDUSTRIES, INC. FOR THE PURCHASE OF A RUNWAY SWEEPER
FOR THE PALM SPRINGS INTERNATIONAL AIRPORT IN THE AMOUNT
OF $367,213.22
FROM: Justin Clifton, City Manager
BY: Aviation Department
SUMMARY:
This action will approve Goods Purchase Agreement No. A9030 for a CNG-Powered
Runway Sweeper for the Palm Springs International Airport from Marco Industries, Inc.
for an amount of $367,213.22 funded by Federal Aviation Administration (FAA) Airport
Improvement Plan Grant No. 3-06-0181-058-2020.
RECOMMENDATION:
1. Approve a Goods Purchase Agreement (A9030) with Marco Industries, Inc. dba
Mar-Co Equipment Company for the purchase of a CNG-powered runway sweeper
for the Palm Springs International Airport in the total amount of $367,213.22.
2.Authorize the City Manager or his designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment 1) submitted on December
13, 2021, Marco Industries, Inc. d.b.a. Mar-Co Equipment Company is a corporation
registered in California with its principal place of business in Pomona, CA. The Officers
are Richard F. Butler and Linda Butler, respectively owning a 50% beneficial interest in
the entity.
BACKGROUND:
Airport Management Staff anticipated the need for a new runway sweeper and the request
was submitted to the FAA as an eligible expense under the Airport Capital Improvement
Program in 2019. This expenditure was approved by the FAA under AIP Grant 3-06-0181-
Item 1L - 1
058-2020 (AIP 058), a multi-year grant in the amount of $7,919,014 which provided for
the replacement of eight passenger boarding bridges in the Bono concourse and the
acquisition of the runway sweeper. City Council approved the acceptance of AIP 058 at
its meeting of July 23, 2020.
On August 17, 2021, Invitation for Bid (IFB 22-01) was issued through the procurement
process for the runway sweeper, and three bids were returned unopened as decision was
made to re-bid with the specification that the runway sweeper be CNG-powered.
On November 4, 2021, Invitation for Bid (IFB 22-05) was initiated by the City’s
Procurement Department, based on the Airport specifications for a CNG-powered runway
sweeper. Proposers were solicited directly via the City’s Procurement PlanetBids vendor
portal, and the IFB was posted to the City’s website for 30 days and advertised in the
Desert Sun.
In response to this solicitation, the City received one responsive and responsible bid from
Marco Industries, Inc. in the amount of $367,213.22. Staff has evaluated the bid submitted
for the GNG-powered airport runway sweeper and finds that it meets City specifications.
STAFF ANALYSIS:
According to FAA regulations Title 14 C.F.R. Part 139.05 the Palm Springs International
Airport, as certificate holder, is required to promptly remove any Foreign Object Debris
(FOD) from all Air Operations Area (AOA) paved surfaces for the safety of aircraft and
passengers. A high-speed power vacuum sweeper vehicle is used to remove FOD from
the AOA and from public airport roads.
The current sweeper, a 2004 Elgin Sterling SC8000, has reached the end of its useful life
and must be replaced. The acquisition of the CNG-powered runway sweeper is needed
to ensure the taxiways and runways are clear of debris for safe aircraft operations.
Staff is seeking City Council’s approval of the selection of Marco Industries, Inc. and
Goods Purchase Agreement No. A9030 (Attachment 2).
ENVIRONMENTAL IMPACT:
The requested City Council action is not a “Project” as defined by the California
Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the
whole of an action, which has a potential for resulting in either a direct physical change in
the environment, or a reasonably foreseeable indirect physical change in the
environment. According to Section 15378(b), a “Project” does not include: (5)
Organizational or administrative activities of governments that will not result in direct or
indirect physical changes in the environment.
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FISCAL IMPACT:
Funding for this acquisition is entirely provided by AIP 058 and is available in the
Department of Aviation Account 4167070-80000 for Fiscal Year 2022.
REVIEWED BY:
Department Director: Harry Barrett
City Manager: Justin Clifton
ATTACHMENTS:
1.Public Integrity Disclosure.
2. Goods Purchase Agreement No. A9030.
Item 1L - 3
AVIATION DEPARTMENT:
City Council Meeting of 01-27-22
AWARD A GOODS PURCHASE AGREEMENT NO. A9030 WITH MARCO
INDUSTRIES, INC. FOR THE PURCHASE OF A RUNWAY SWEEPER FOR
THE PALM SPRINGS INTERNATIONAL AIRPORT IN THE AMOUNT OF
$367,213.22
ATTACHMENT 1
PUBLIC INTEGRITY DISCLOSURE
Item 1L - 4
Item 1L - 5PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM 1. Name of Entity Mar-co Equipment Company 2.-Address of Entity {Principle Place of Business) 130 Atlantic Street Pomona, CA 91768 I 3. Local or California Address (if different than #2) 4. State where Entity is Registered with Secretary of State California If other than California, is the Entity also registered in California? D Yes D No I I ~----------------------------....,•---·(:... 5. Type of Entity Ix! Corporation D Limited Liability Company D Partnership D Trust D Other (please s~eci~) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (plea-s.• specify) Note: If any response is not a natural person, please identify all jofflcert, directors, members, managers and other fiduciaries for the member, m,na~er, tru• or other enti'ty Richard F. Butler _____________ !xi Officer D Director D Member [~ J Mcianager [name] D General Partner D Limite~ Pa,itner •Other ____________ , 1-. Linda Butler _____________ [i] Officer D Director D Member O Managei [name] D General Partner D LimiteJ Partner D Other _______ ,, __ ----i ___ N_e_il _B_. F_e_in_b_e_rg _______ O Officer • D~rector • Member ~ Manager [name] D General Partner D Limiteq Partner D Other _______ . ___ __. 1.-------------------------------------
Item 1L - 67. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity EXAMPLE JANE DOE [name of owner/investor] A. Richard F. Butler [name of owner/investor] B. Linda Butler [name of owner/investor] C. [name of owner/investor] D. (name of owner/investor] E. 50%, ABC COMPANY, Inc. [percentage of beneficial interest m ~ntity an~ name of entity] , 50% Mar-co Equipment Compan}' [percentage of beneficial interest in elntity anf name of entity] I 50% Mar-co Equipment Companl' [percentage of beneficial interes~ in entity ani . name of entity] · [percentage of beneficial interes~ in ertity antll . name of entity] _· [percentage of beneficial interes~ in entity and! · name of entity] [name of owner/investor] [percentage of beneficial inter~st ~n entity and name of entity] I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE ST~TE oP.J CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Date 12/13/2021
AVIATION DEPARTMENT:
City Council Meeting of 01-27-22
AWARD A GOODS PURCHASE AGREEMENT NO. A9030 WITH MARCO
INDUSTRIES, INC. FOR THE PURCHASE OF A RUNWAY SWEEPER FOR
THE PALM SPRINGS INTERNATIONAL AIRPORT IN THE AMOUNT OF
$367,213.22
ATTACHMENT 2
GOODS PURCHASE
AGREEMENT NO. A9030
Item 1L - 7
CITY OF PALM SPRINGS
GOODS PURCHASE AGREEMENT NO. A9030
CNG POWERED AIRPORT RUNWAY SWEEPER
This Goods Purchase Agreement (“Agreement”) is entered into this 1st day of February, 2022,
by and between the City of Palm Springs, a California charter city and municipal corporation
(“City”), and MARCO INDUSTRIES, INC DBA MAR-CO EQUIPMENT COMPANY, a
Corporation, organized in the state of California with its principal place of business at 130
Atlantic Street, Pomona, CA 91768 (“Supplier”). City and Supplier are sometimes individually
referred to as “Party” and collectively as “Parties” in this Agreement.
Section 1. DEFINITIONS.
A. “Goods” means all machinery, equipment, supplies, items, parts, materials, labor,
or other services, including design, engineering, and installation services, provided by Supplier
as specified in Exhibit “A,” attached hereto and incorporated herein by reference.
B. “Delivery Date(s)” means that date or dates upon which the Goods is to be
delivered to City, ready for approval, testing and/or use as specified in Exhibit “B,” attached
hereto and incorporated herein by reference.
Section 2. INSPECTIONS AND TESTS.
City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection
or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory,
defective, of inferior quality or workmanship, or fail to meet any requirements or specifications
contained in Exhibit “A,” then without prejudice to any other rights or remedies, City may reject
the Goods or exercise any of its rights under this Agreement. The inspection, failure to make
inspection, acceptance of goods, or payment for goods shall not impair City’s right to reject
nonconforming goods, irrespective of City’s failure to notify Supplier of a rejection of
nonconforming goods or revocation of acceptance thereof or to specify with particularity any
defect in nonconforming goods after rejection or acceptance thereof.
Section 3. WARRANTY.
A. Supplier warrants that the Goods will be of merchantable quality and free from
defects in design, engineering, material, and workmanship for a period of one year, or such
longer period as provided by a manufacturer’s warranty or as agreed to by Supplier an d City,
from the date of final written acceptance of the Goods by City as required for final payment
under this Agreement. Supplier further warrants that any services provided in connection with
the Goods will be performed in a professional and workmanlike manner and in accordance with
the highest industry standards.
B. Supplier further warrants that all machinery, equipment, or process included in
the Goods will meet the performance requirements and specifications specified in Exhibit “A”
and shall be fit for the purpose intended. City’s inspection, testing, approval, or acceptance of
any such machinery, equipment, or process will not relieve Supplier of its obligations under this
paragraph.
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C. For any breach of the warranties contained in this Section, Supplier will,
immediately after receiving notice from City, at the option of City, and at Supplier’s own expense
and without cost to City:
1. Repair the defective Goods;
2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant,
office, or other location of City where the Goods was originally performed or delivered; or
3. Repay to City the purchase price of the defective Goods.
If City selects repair or replacement, any defects will be remedied without cost to City, including
but not limited to, the costs of removal, repair, and replacement of the defective Goods, and
reinstallation of new Goods. All such defective Goods that is so remedied will be similarly
warranted as stated above. In addition, Supplier will repair or replace other items of the Goods
which may have been damaged by such defects or the repairing of the same, all at its own
expense and without cost to City.
D. Supplier also warrants that the Goods is free and clear of all liens and
encumbrances whatsoever, that Supplier has a good and marketable title to same, and that
Supplier owns or has a valid license for all of the proprietary technology and intellectual property
incorporated within the Goods. Supplier agrees to indemnify, defend, and hold City harmless
against any and all third party claims resulting from the breach or inaccuracy of any of the
foregoing warranties.
E. In the event of a breach by Supplier of its obligations under this Section, City will
not be limited to the remedies set forth in this Section, but will have all the rights and remedies
permitted by applicable law, including without limitation, all of the rights and remedies afforded
to City under the California Commercial Code.
Section 4. PRICES.
Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached
hereto and incorporated herein by reference, are firm and shall not be subject to change without
the written approval of City. No extra charges of any kind will be allowed unless specifically
agreed to in writing by City’s authorized representative. The total price shall include (i) all
federal, state, and local sales, use, excise, privilege, payroll, occupational and other taxes
applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight, and
transportation to destination.
Section 5. CHANGES.
City, at any time, by a written order, and without notice to any surety, may make changes in the
Goods, including but not limited to, City’s requirements and specifications. If such changes
affect the cost of the Goods or time required for its performance, an equitable adjustment will be
made in the price or time for performance or both. Any change in the price necessitated by such
change will be agreed upon between City and Supplier and such change will be authorized by a
change order document signed by City and accepted by Supplier.
Section 6. PAYMENTS.
A. Terms of payment are net thirty (30) days, less any applicable retention, after
receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be
Item 1L - 9
made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall
not constitute acceptance of Goods.
B. If Progress Milestones have been specified in Exhibit “B,” then payments for the
Goods will be made as the requirements of such Progress Milestones are met. Progress
payments for the Goods will be made by City upon proper application by Supplier during the
progress of the Goods and according to the terms of payment as specified in Exhibit “B.”
Supplier’s progress billing invoice will include progress payments due for the original scope of
work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be
itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change
order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice. Other
format and support documents for invoices will be determined by City in advance of the first
invoice cycle.
C. Payments otherwise due may be withheld by City on account of defective Goods
not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens
or other claims, failure of Supplier to make payments properly to its subcontractors or for
material or labor, the failure of Supplier to perform any of its other obligations under the
Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or
discharge taxes or other obligations. If the causes for which payment is withheld are removed,
the withheld payments will be made promptly. If the said causes are not removed within a
reasonable period after written notice, City may remove them at Supplier’s expense.
D. Payment of the final Progress Milestone payment or any retention will be made
by City upon:
1. Submission of an invoice for satisfactory completion of the requirements
of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the
Progress Milestone;
2. Written acceptance of the Goods by City;
3. Delivery of all drawings and specifications, if required by City;
4. Delivery of executed full releases of any and all liens arising out of this
Agreement; and
5. Delivery of an affidavit listing all persons who might otherwise be entitled
to file, claim, or maintain a lien of any kind or character, and containing an averment that all of
the said persons have been paid in full.
If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond
satisfactory to City to indemnify City against any claim or lien at no cost to City.
E. Acceptance by Supplier of payment of the final Progress Milestone payment
pursuant to Section will constitute a waiver, release, and discharge of any and all claims and
demands of any kind or character which Supplier then has, or can subsequently acquire against
City, its successors, and assigns, for or on account of any matter or thing arising out of, or in
any manner connected with, the performance of this Agreement. However, payment for the final
Progress Milestone by City will not constitute a waiver, release or discharge of any claims or
demands which City then has, or can subsequently acquire, against Supplier, its successors,
and assigns, for or on account of any matter or thing arising out of, or in any manner connected
with, the performance of this Agreement.
Item 1L - 10
Section 7. SCHEDULE FOR DELIVERY.
The time of Supplier’s performance is of the essence for this Agreement. The Goods will be
delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately
notify City in writing any time delivery is behind schedule or may not be completed on schedule.
In addition to any other rights City may have under this Agreement or at law, Supplier shall pay
City the sum of zero dollars, $0.00 per item of Goods for each calendar day for which the item of
Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.” In the
event that the Goods is part of a larger project or projects that require the coordination of
multiple contractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so
that City can maximize the efficient completion of such project(s).
Section 8. TAXES.
Supplier agrees to timely pay all sales and use tax (including any value added or gross receipts
tax imposed similar to a sales and use tax) imposed by any federal, state, or local taxing
authority on the ultimate purchase price of the Goods provided under this Agreement. Supplier
will withhold, and require its subcontractors, where applicable, to withhold all required taxes and
contributions of any federal, state, or local taxing authority which is measured by wages,
salaries or other remuneration of its employees or the employees of its subcontractors. Supplier
will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities
all amounts required to be withheld. All other taxes, however denominated or measured,
imposed upon the price of the Goods provided hereunder, will be the responsibility of Supplier .
In addition, all taxes assessed by any taxing jurisdiction based on Supplier property used or
consumed in the provision of the Goods such as and including ad valorem, use, personal
property and inventory taxes will be the responsibility of Supplier. Supplier will, upon written
request, submit to City written evidence of any filings or payments of all taxes required to be
paid by Supplier hereunder.
Section 9. INDEPENDENT CONTRACTOR.
Supplier enters into this Agreement as an independent contractor and not as an employee of
City. Supplier shall have no power or authority by this Agreement to bind City in any respect.
Nothing in this Agreement shall be construed to be inconsistent with this relationship or status.
All employees, agents, contractors, or subcontractors hired or retained by the Supplier are
employees, agents, contractors, or subcontractors of the Supplier and not of City. City shall not
be obligated in any way to pay any wage claims or other claims made against Supplier by any
such employees, agents, contractors or subcontractors or any other person resulting from
performance of this Agreement.
Section 10. TITLE AND RISK OF LOSS.
Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially
completed portions of the Goods upon delivery, as well as materials delivered to and stored on
City property which are intended to become a part of the Goods. However, Supplier will be liable
for any loss or damage to the Goods and/or the materials caused by Supplier or its
subcontractors, their agents or employees, and Supplier will replace, or repair said Goods or
materials at its own cost to the complete satisfaction of City. Notwithstanding the foregoing, in
the event that the City has paid Supplier for all or a portion of the Goods which remains in the
possession of Supplier, then City shall have title to, and the right to take possession of, such
Goods at any time following payment therefor. Risk of loss for any Goods which remains in the
possession of Supplier shall remain with Supplier until such Goods has been delivered or City
has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property
used in the construction of the Goods, but which does not become a part of the Goods.
Item 1L - 11
Section 11. INDEMNIFICATION.
A. To extent permitted by law, Supplier shall defend, indemnify and hold the City, its
officials, officers, employees, volunteers and agents free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner arising out of or incident to any
alleged acts, omissions, negligence or willful misconduct of Supplier, its officials, officers,
employees, agents, subcontractors and subconsultants arising out of or in connection with the
Goods or the performance of this Agreement, including without limitation the payment of
damages, attorneys’ fees and other related costs and expenses except such loss or damage
which was caused by the sole negligence or willful misconduct of the City. Supplier’s obligation
to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its
officials, officers, employees, agents, or volunteers.
B. Supplier’s defense obligation for any and all such aforesaid suits, actions or other
legal proceedings of every kind that may be brought or instituted against the City, its officials,
officers, employees, agents, or volunteers shall be at Supplier’s own cost, expense, and risk.
Supplier shall pay and satisfy any judgment, award, or decree that may be rendered against
City or its officials, officers, employees, agents, or volunteers, in any such suit, action, or other
legal proceeding. Supplier shall reimburse City and its officials, officers, employees, agents,
and/or volunteers, for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity herein provided.
Section 12. INSURANCE.
A. General. Supplier shall take out and maintain:
1. Commercial General Liability Insurance, of at least $1,000,000 per
occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage, at
least as broad as Insurance Services Office Commercial General Liability most recent
Occurrence Form CG 00 01;
2. Automobile Liability Insurance for bodily injury and property damage
including coverage for owned, non-owned and hired vehicles, of at least $1,000,000 per
accident for bodily injury and property damage, at least as broad as most recent Insurance
Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);
3. Workers’ Compensation in compliance with applicable statutory
requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and
4. Pollution Liability Insurance of at least $1,000,000 per occurrence and
$2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.
5. If Supplier is also the manufacturer of any equipment included in the
Goods, Supplier shall carry Product Liability and/or Errors and Omissions Insurance which
covers said equipment with limits of not less than $1,000,000.
B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage .
The policies required under this Section shall give City, its officials, officers, employees, agents,
or volunteers additional insured status. Such policies shall contain a provision stating that
Supplier’s policy is primary insurance and that any insurance, self-insurance or other coverage
maintained by the City or any additional insureds shall not be called upon to contribute to any
loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its
officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply
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separately to each insured against whom claims are made or suits are brought, except with
respect to the limits of liability. Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as additional insured pursuant to this Agreement.
C. Insurance Carrier. All insurance required under this Section is to be placed with
insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in
California, and satisfactory to the City.
D. Evidence of Insurance. Supplier shall furnish City with original certificates of
insurance and endorsements effecting coverage required by the Agreement. The certificates
and endorsements for each insurance policy shall be signed by a person authorized by that
insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City.
All certificates and endorsements must be received and approved by the City before delivery
commences. The City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
E. Subcontractors. All subcontractors shall meet the requirements of this Section
before commencing work. In addition, Supplier shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein.
F. Freight. Supplier shall ensure that third party shippers contracted by Supplier
have adequate insurance coverage for the shipped Goods.
Section 13. LIENS.
Supplier, subcontractors and suppliers will not make, file or maintain a mechanic’s or other lien
or claim of any kind or character against the Goods, for or on account of any labor, materials,
fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or
performance given under, arising out of, or in any manner connected with the Agreement (such
liens or claims referred to as “Claims”); and Supplier, subcontractor and suppliers expressly
waive and relinquish any and all rights which they now have, or may subsequently acquire, to
file or maintain any Claim and Supplier, subcontractor and suppliers agree that this provision
waiving the right of Claims will be an independent covenant. Supplier will save and hold City
harmless from and against any and all Claims that may be filed by a subcontractor, supplier or
any other person or entity and Supplier will, at its own expense, defend any and all actions
based upon such Claims and will pay all charges of attorneys and all costs and other expenses
arising from such Claims.
Section 14. TERMINATION OF AGREEMENT BY CITY.
A. Should Supplier at any time refuse or fail to deliver the Goods with promptness
and diligence, or to perform any of its other obligations under the Agreement, City may
terminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier.
In such event City may obtain the Goods by whatever method it may deem expedient, including
the hiring of another contractor or other contractors and, for that purpose, may take possession
of all materials, machinery, equipment, tools, and appliances and exercise all rights, options,
and privileges of Supplier. In such case Supplier will not be entitled to receive any further
payments until the Goods is delivered. If City’s cost of obtaining the Goods, including
compensation for additional managerial and administrative services, will exceed the unpaid
balance of the Agreement, Supplier will be liable for and will pay the difference to City.
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B. City may, for its own convenience, terminate Supplier’s right to proceed with the
delivery of any portion or all of the Goods by written notice to Supplier. Such termination will be
effective in the manner specified in such notice, will be without prejudice to any claims which
City may have against Supplier, and will not affect the obligations and duties of Supplier under
the Agreement with respect to portions of the Goods not terminated.
C. On receipt of notice under this Section, Supplier will, with respect to the portion of
the Goods terminated, unless the notice states otherwise,
1. Immediately discontinue such portion of the Goods and the placing of
orders for materials, facilities, and supplies in connection with the Goods,
2. Unless otherwise directed by City, make every reasonable effort to
procure cancellation of all existing orders or contracts upon terms satisfactory to City; and
3. Deliver only such portions of the Goods which City deems necessary to
preserve and protect those portions of the Goods already in progress and to protect material,
plant, and equipment at the Goods site or in transit to the Goods site.
D. Upon termination pursuant to this Section, Supplier will be paid a pro rata portion
of the compensation in the Agreement for any portion of the terminated Goods already
delivered, including material and services for which it has made firm contracts which are not
canceled, it being understood that City will be entitled to such material and services. Upon
determination of the amount of said pro rata compensation, City will promptly pay such amount
to Supplier upon delivery by Supplier of the releases of liens and affidavit, pursuant to this
Section.
Section 15. FORCE MAJEURE
Supplier shall not be held responsible for failure or delay in shipping nor City for failure or delay
in accepting Goods described herein if such failure or delay is due to a Force Majeure Event. A
Force Majeure Event shall mean an event that materially affects a Party’s performance and is
one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other
acts of a public enemy; (3) orders of governmental authorities (including, without limitation,
unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental
authorities that are required for the Goods); (4) pandemics, epidemics or quarantine restrictions;
and (5) strikes and other organized labor action, only to the extent such strikes and other
organized labor action are beyond the control of Supplier and its subcontractors, of every tier,
and to the extent the effects thereof cannot be avoided by use of replacement workers. For
purposes of this section, “orders of governmental authorities,” includes ordinances, emergency
proclamations and orders, rules to protect the public health, welfare and safety, and other
actions of the City in its capacity as a municipal authority. In the event of any such excused
interference with shipments, City shall have the option either to reduce the quantity provided for
in the order accordingly or to exercise its right of cancellation as set forth in this Agreement.
Section 16. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
A. Non-Liability of City Officers and Employees. No officer or employee of City shall
be personally liable to the Supplier, or any successor-in-interest, in the event of any default or
breach by City or for any amount which may become due to the Supplier or its successor, or for
breach of any obligation of the terms of this Agreement.
B. Conflict of Interest. Supplier acknowledges that no officer or employee of the City
has or shall have any direct or indirect financial interest in this Agreement, nor shall Supplier
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enter into any agreement of any kind with any such officer or employee during the term of this
Agreement and for one (1) year thereafter. Supplier warrants that Supplier has not paid or
given, and will not pay or give, any third party any money or other consideration in exchange for
obtaining this Agreement.
C. Covenant Against Discrimination. In connection with its performance under this
Agreement, Supplier shall not discriminate against any employee or applicant for employment
because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national
origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity),
sexual orientation, gender identity, gender expression, physical or mental disability, or medical
condition (each a “prohibited basis”). Supplier shall ensure that applicants are employed, and
that employees are treated during their employment, without regard to any prohibited basis. As
a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this
Agreement, Supplier certifies that its actions and omissions hereunder shall not incorporate any
discrimination arising from or related to any prohibited basis in any Supplier activity, including
but not 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; and further, that Supplier is in full compliance
with the provisions of Palm Springs Municipal Code Section 7.09.040, including without
limitation the provision of benefits, relating to non-discrimination in city contracting.
Section 17. MISCELLANEOUS PROVISIONS.
A. Delivery of Notices. All notices permitted or required under this Agreement shall
be given to the respective parties at the following address or at such other address as the
respective parties may provide in writing for this purpose:
CITY:
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
SUPPLIER:
Mar-co Equipment Company
130 Atlantic Street
Pomona, CA 91768
Attn: Neil Feinberg
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)
hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
B. Assignment or Transfer. Supplier shall not assign or transfer any interest in this
Agreement whether by assignment or novation, without the prior written consent of the City,
which will not be unreasonably withheld. Provided, however, that claims for money due or to
become due Supplier from the City under this Agreement may be assigned to a financial
institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or
transfer, whether voluntary or involuntary, shall be furnished promptly to the City.
C. Successors and Assigns. This Agreement shall be binding on the successors
and assigns of the Parties.
D. Amendment; Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
E. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
Item 1L - 15
service voluntarily given or performed by a Party shall give the other Party any contractual rights
by custom, estoppel or otherwise.
F. Governing Law. This Agreement shall be governed by the laws of the State of
California. Venue shall be in Riverside County.
G. Attorneys’ Fees and Costs. If any action in law or equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party
shall pay its own attorneys’ fees.
H. Interpretation. Since the Parties or their agents have participated fully in the
preparation of this Agreement, the language of this Agreement shall be construed simply,
according to its fair meaning, and not strictly for or against any Party.
I. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
J. Authority to Enter Agreement. Each Party warrants that the individuals who have
signed this Agreement have the legal power, right and authority to make this Agreement and
bind each respective Party.
K. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
L. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
M. City’s Right to Employ Other Suppliers. City reserves its right to employ other
contractors in connection with the Goods.
N. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties relative to the Goods specified herein. There are no understandings, agreements,
conditions, representations, warranties or promises with respect to this Agreement, except
those contained in or referred to in the writing.
O. Electronic Signature. Each Party acknowledges and agrees that this Agreement
may be executed by electronic or digital signature, which shall be considered as an original
signature for all purposes and shall have the same force and effect as an original signature.
Section 18. FEDERAL PROVISIONS.
Since funding for the Goods is provided, in whole or in part, by the Federal Aviation
Administration, Supplier shall also fully and adequately comply with the provisions included in
Exhibit “D” attached hereto and incorporated herein by reference (“Federal Provisions”). With
respect to any conflict between such Federal Provisions and the terms of this Agreement and/or
the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON FOLLOWING PAGE]
Item 1L - 16
SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF PALM SPRINGS AND MAR-CO EQUIPMENT
COMPANY
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates
stated below.
CONTRACTOR:
By: _____________________________ By: _____________________________
Signature Signature
(2nd signature required for Corporation)
Date: ___________________________ Date: ___________________________
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No. ________ Agreement No. _A9030___
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________
Jeffrey S. Ballinger, Anthony Mejia,
City Attorney City Clerk
APPROVED:
By: _____________________________ Date: ____________________________
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1L - 17
- -
Exhibit A
Goods Specifications
1.1 General Requirements:
A. It is the intent of these specification to describe the minimum acceptable
performance standards for obtaining a new CNG powered Airport Runway Sweeper.
The equipment requested will be used for sweeping and blowing Foreign Object
Debris (FOD) from the runways, taxiways, and streets of the Palm Springs
International Airport. The successful bidder shall verify the airport runway sweeper
specification suitability to this application with the frame body manufacturer.
B. The equipment offered shall include all of the manufacturer’s standard equipment for
the equipment model offered in addition to the items required by the specifications.
C. These specifications cover new equipment manufacturers that will meet or exceed
the following requirements.
1.2 Equipment Specifications:
The following describe the City’s minimum Technical Specifications for equipment
functionality, durability, serviceability, and economics.
Airport Equipment Specifications
This specification describes City of Palm Springs technical specifications for a
Cummins CNG Sweeper or equivalent.
A General:
The Airport desires a CNG-powered Airport Runway Sweeper that is
sufficiently rated to transport a full load of sweeping debris at speeds of up to
55 MPH. This vehicle shall be able to sweep access roads and parking lots
with and without curbs and gutters.
B Chassis:
2021 Freightliner M2 Chassis with Cummins 6.7 CNG Engine or equivalent
C Suspension:
Spring Suspension, both axels
D Engine:
Cummins 6.7 CNG Engine, 4 Tank 60 DGE Fuel System or equivalent
E Alternator:
95 Amp
F Steering:
Single cockpit steering and operator controls
G Paint:
Standard White (body and chassis)
H Hopper:
Capacity: 8.0 Cubic Yards minimum
Door: Rear Door, hydraulically opened/closed
Item 1L - 18
Lock/Unlock: External Manual Controls
Dump: In cab hopper dump
Deluge: V-shaped nozzle assembly in rear door for easy washing
I Console:
Tachometer, engine hour meter, oil pressure indicator, coolant temperature,
voltmeter and fuel lever indicator, water level gauge and warning lights for
hopper pressure controls
J Regenerative Air or Vacuum Sweeper System: (Mechanical sweepers are
unacceptable).
K Blower:
CFM: 20,000 rating with linatex lined housing or equivalent, fan rated by
independent test facility
Housing: Inspection point that facilitates safe operator access.
L Brooms:
Dual side brooms with 7’ or greater sweeping swath and lights for night
operations
Rotation: Hydraulic Rotation
Ruler: Broom measurement ruler
Throttle: Electronic throttle, sweep resume/sweep transport/ reverse pickup
Stop: Side Broom Outer Position Stop
Tilt: Side Broom Tilt Option
M Spray Nozzles and Bar:
Sixteen (16), seven (7) in the pick-up head, three (3) in the suction nozzle,
three (3) at each side broom. Spray Bar Front-mounted
N Vacuum:
Enhancer in cab
Pick up Head:
Hydraulically operated, 14 (355 mm) outside diameter pressure hose, 12-3/4
(324mm) inside diameter suction hose with quick disconnect on suctions side
or equivalent
O Hose: Water pre-filter, hydrant fill hose
Length: 16 feet
Coupling: NST coupling and anti-siphon connector
P Fuel Water Separator in Aux Engine
Q Water Tank
Capacity: 240 gallons
Housing: Molded polyethylene or equivalent
Water Pump: Selectively controlled from cab
Item 1L - 19
R Camera
Rear-mounted camera
S Lights
All tail lamps, stop lamps, back-up lamps and turn indicator lamps to be
recess mounted
Rear clearance and Rear Identification: LED
Safety Lighting:
Amber-colored, flashing light bar mounted on the uppermost part of the
vehicle cab and visible from any direction day or night, including the air
T Mirrors:
West Coast type with 8” convex inserts, one on each side
U Back up alarm, electric
V Air Conditioning and Heating: Factory Installed
W Tires: rear axle must have dual tires; all tires must be the same size
Spare: spare tire and rim
X Manuals: Provide two (2) Operation and Maintenance Manuals, (1) Parts
Manual and (1) shop service and repair manual
Y Safety triangles and slow moving vehicle sign
Z Two-way VHF Airband radio; cab-mounted
1.3 Parts and Services:
A. Service Capability:
The Contractor must have facilities, factory trained personnel, equipment, and parts
available to completely service, maintain, overhaul, and repair the equipment offered
within Riverside County, California.
B. Parts Pricing and Availability
The Contractor agrees to offer OEM parts to the City of Palm Springs at a discounted
rate for the life of the equipment or as otherwise stated. The Contractor shall
maintain an adequate stock of normal replacement parts and shall make deliveries
within 48 hours when requested.
C. Operational Standards and Testing
The Contractor shall be responsible for conducting tests to ensure that its equipment
meets the operation and performance requirement it advertises. Certified records of
these compliance tests shall be submitted by the manufacturer. Equipment tests
shall be conducted on standard production models and not on specially constructed
prototypes.
D. Post Delivery Inspection
Contractors shall prepare for a post-delivery inspection service of the equipment,
approximately 30 days after it is placed in service. The inspection service shall
include the following:
Item 1L - 20
1. Check all operating systems for proper operation and adjustment
2. Check equipment visually for leaks and material defects
E. Delivery
Contractor must deliver sweeper no later than 150 days after receipt of the purchase
order.
F. Training for City of Palm Springs Staff
The Contractor shall provide operational and service/repair/troubleshooting training.
G. Warranty
The Contractor shall provide a minimum of a one-year warranty on the sweeper.
1.4 Compensation:
The Contractor will be compensated on a lumpsum basis that is inclusive of all costs
related to the specifications and requirements.
Item 1L - 21
Exhibit B
Delivery Schedule
Contractor must deliver sweeper no later than 150 days after receipt of the purchase
order.
Item 1L - 22
Item 1L - 23
ATTACHMENT E
BID FORM
INVITATION FOR BIDS (IFB 22-05)
RUNWAY SWEEPER FOR THE AIRPORT
Responding to this IFB for a Runway Sweeper for the Airport, the undersigned bi der ropos
and agrees to provide the services and work in accordance with the specific tions . Bidd r
proposes and agrees to furnish all labor, equipment, materials, supervision and serv ce rl ecessa
to complete said Work in accordance with the Specifications of the City of Palm S ring f and 'A1 I
accept as full payment therefore, the following unit cost amounts. The City of Pal sgrings w I
not accept any additional charges, fees, etc. that are not already included or incor ora ed in th
below unit costs.
The Manufacturer and bidder shall guarantee that prices for equipment and parts in like rade an ,
quantity will be as low as such equipment and parts sold through any other govern en contra ., t
or cooperative. Any time the prices are reduced or increased to the general trade, it is u dersto9 ,
that City of Palm Springs shall not pay a higher price than any other user effective w th t e date ,
such price reduction or increase to the general trade.
Bidders shall include in the bid price the cost of a post-delivery inspection s
equipment, approximately 30 days after it is placed in service . The inspection servic
the following:
1. Check all operating systems for proper operation and adjustment
2. Check equipment visually for leaks and material defects
ITEM DESCRIPTION UNIT QUANTITY
1 CNG Sweeper per Specifications Lumpsum 1
Printed Name: __ N_e_i_l _Fe_i_n_be_r_g ________________ --t--1
Territory Manager
Title: ---------------------------+-
Date: 12/13/2021
NOTE : SEE ATTACHMENT FOR ADDITIONAL OPTIONS AND PRICING
. 2 :2
-I
Item 1L - 24
OPTIONS ATTACHMENT
QTY OPTION DESCRIPTION OPTION F RICE
-PRE TA)
1 Auxiliary Hydraulic Tem12L Level Shutdown-Provides $400.00
protection for Hydraulic system if major fluid loss occurs,
allowing engine to shutdown preventing Hydraulic system
damage. Feature also prevents against overheating.
1 LED Traffic Direct i ng Light {Rear}-Wherever additional $800.00
lighting may be required
1 Additional LED Flood Lights-This will allow for better visible $200.00 E ach
coverage in hard to see areas . (Rear of sweeper, above
where engine is services, pick up head etc.)
1 Broom Assist Head-This option allows for the pickup head to $4200.00
have a 12" diameter broom inside {Full Width of Head). Th i s
will be beneficial if you come in contact will large amounts of
sand/ heavy debris packed on street surfaces . Can be uses
momentarily through a on/off switch located in cab
1 Pick UQ Head Curtain Lifter-This option will allow the lifting $1500 .00
of the front curtain on the pickup head to allow light debris
to enter the pickup head when built up in front of curtain.
1 Lateral Air Flow Nozzle W L Right Broom Only-Provides Air $2800 .00
flow to move deposits of sand and dust storms, puddles of
wate r after heavy rain falls and snow, air flow can move
debris up to 60 feet in one single pass.
Exhibit D
FEDERAL AVIATION ADMINISTRATION
FEDERAL PROVISIONS
UPDATED 10.25.2021
Provision
Reference Provision Description
Page
No.
FAA - 01 Access to Records and Reports 2
FAA - 02 Affirmative Action Requirement * 3
FAA – 03 Breach of Contract 4
FAA – 04 Buy American Preferences * 5
FAA – 05 Civil Rights General 6
FAA – 06 Civil Rights – Title VI Assurances * 7
FAA – 07 Clean Air/Water Pollution Control 10
FAA – 08 Contract Work Hours and Safety Standards 11
FAA – 09 Copeland Anti-Kickback 12
FAA – 10 Davis Bacon Requirements 13
FAA – 11 Debarment and Suspension * 14
FAA – 12 Disadvantaged Business Enterprise * 15
FAA – 13 Distracted Driving 16
FAA – 14 Energy Conservation Requirements 17
FAA – 15 Drug Free Workplace (not applicable to Contractors) 18
FAA – 16 Equal Employment Opportunity 19
FAA – 17 Federal Fair Labor Standards Act * 20
FAA – 18 Lobbying Federal Employees 21
FAA – 19 Prohibition of Segregated Facilities 22
FAA – 20 Occupational Safety and Health Act 23
FAA - 21 Procurement of Recovered Materials 24
FAA – 22 Rights to Inventions 25
FAA – 23 Seismic Safety 26
FAA – 24 Tax Delinquency and Felony Conviction 27
FAA – 25 Termination of Contract 28
FAA – 26 Trade Restriction (Foreign) * 32
FAA – 27 Veteran’s Preference 33
*Solicitation Clause also Stricken clauses do not apply to this contract
Item 1L - 25
FAA – 01 Access to Records and Reports
The Contractor must maintain an acceptable cost accounting system. The Contractor
agrees to provide the Owner, the Federal Aviation Administration, and the Comptroller
General of the United States or any of their duly authorized representatives access to any
books, documents, papers, and records of the Contractor which are directly pertinent to
the specific contract for the purpose of making audit, examination, excerpts, and
transcriptions. The Contractor agrees to maintain all books, records and reports required
under this contract for a period of not less than three years after final payment is made
and all pending matters are closed.
Reference: 2 CFR § 200.333, 2 CFR § 200.336, FAA Order 5100.38
Item 1L - 26
FAA – 02 Affirmative Action Requirement
Not applicable to this contract.
Item 1L - 27
FAA – 03 Breach of Contract
Any violation or breach of terms of this contract on the part of the [Contractor | Consultant]
or its subcontractors may result in the suspension or termination of this contract or such
other action that may be necessary to enforce the rights of the parties of this agreement.
Owner will provide [Contractor | Consultant] written notice that describes the nature of the
breach and corrective actions the [Contractor | Consultant] must undertake in order to
avoid termination of the contract. Owner reserves the right to withhold payments to
Contractor until such time the Contractor corrects the breach or the Owner elects to
terminate the contract. The Owner’s notice will identify a specific date by which the
[Contractor | Consultant] must correct the breach. Owner may proceed with termination of
the contract if the [Contractor | Consultant] fails to correct the breach by the deadline
indicated in the Owner’s notice.
The duties and obligations imposed by the Contract Documents and the rights and
remedies available thereunder are in addition to, and not a limitation of, any duties,
obligations, rights, and remedies otherwise imposed or available by law.
Reference: 2 CFR § 200 Appendix II(A)
Item 1L - 28
FAA – 04 Buy American Preferences
The Buy American Preference requirement in 49 USC § 50101 requires that all steel and
manufactured goods used on AIP projects be produced in the United States. Specific Buy
American requirements will be outline in the solicitation documents. If no requirements are
found in the solicitation this clause if void.
Reference: Title 49 USC § 50101
Item 1L - 29
FAA – 05 Civil Rights General
For Contracts:
The Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules
as are promulgated to ensure that no person shall, on the grounds of race, creed, color,
national origin, sex, age, or disability be excluded from participating in any activity
conducted with or benefiting from Federal assistance.
This provision binds the Contractor and subcontractors from the bid solicitation period
through the completion of the contract. This provision is in addition to that required by Title
VI of the Civil Rights Act of 1964.
For Lease or Transfer Agreements:
The (tenant/concessionaire/lessee) agrees to comply with pertinent statutes, Executive
Orders, and such rules as are promulgated to ensure that no person shall, on the grounds
of race, creed, color, national origin, sex, age, or disability be excluded from participating
in any activity conducted with or benefiting from Federal assistance. If the
(tenant/concessionaire/lessee) transfers its obligation to another, the transferee is
obligated in the same manner as the (tenant/concessionaire/lessor).
This provision obligates the (tenant/concessionaire/lessee) for the period during which the
property is owned, used, or possessed by the (tenant/concessionaire/lessee) and the
airport remains obligated to the Federal Aviation Administration. This provision is in
addition to that required by Title VI of the Civil Rights Act of 1964.
Reference: 49 USC § 47123
Item 1L - 30
FAA – 06 Civil Rights – Title VI Assurances
Compliance with Nondiscrimination Requirements:
During the performance of this contract, the Contractor, for itself, its assignees, and
successors in interest (hereinafter referred to as the “Contractor”), agrees as follows:
1. Compliance with Regulations: The Contractor (hereinafter includes
consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and
Authorities, as they may be amended from time to time, which are herein incorporated by
reference and made a part of this contract.
2. Nondiscrimination: The Contractor, with regard to the work performed by it
during the contract, will not discriminate on the grounds of race, color, or national origin in
the selection and retention of subcontractors, including procurements of materials and
leases of equipment. The Contractor will not participate directly or indirectly in the
discrimination prohibited by the Nondiscrimination Acts and Authorities, including
employment practices when the contract covers any activity, project, or program set forth
in Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, including Procurements of Materials and
Equipment: In all solicitations, either by competitive bidding or negotiation made by the
Contractor for work to be performed under a subcontract, including procurements of
materials, or leases of equipment, each potential subcontractor or supplier will be notified
by the Contractor of the contractor’s obligations under this contract and the
Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.
4. Information and Reports: The Contractor will provide all information and
reports required by the Acts, the Regulations, and directives issued pursuant thereto and
will permit access to its books, records, accounts, other sources of information, and its
facilities as may be determined by the sponsor or the Federal Aviation Administration to be
pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and
instructions. Where any information required of a contractor is in the exclusive possession
of another who fails or refuses to furnish the information, the Contractor will so certify to
the sponsor or the Federal Aviation Administration, as appropriate, and will set forth what
efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a Contractor’s noncompliance
with the non-discrimination provisions of this contract, the sponsor will impose such
contract sanctions as it or the Federal Aviation Administration may determine to be
appropriate, including, but not limited to:
a. Withholding payments to the Contractor under the contract until the Contractor
complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The Contractor will include the provisions of
paragraphs one through six in every subcontract, including procurements of materials and
leases of equipment, unless exempt by the Acts, the Regulations, and directives issued
pursuant thereto. The Contractor will take action with respect to any subcontract or
procurement as the sponsor or the Federal Aviation Administration may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, that if the
Contractor becomes involved in, or is threatened with litigation by a subcontractor, or
supplier because of such direction, the Contractor may request the sponsor to enter into
any litigation to protect the interests of the sponsor. In addition, the Contractor may
Item 1L - 31
request the United States to enter into the litigation to protect the interests of the United
States.
A6.4.5 Title VI List of Pertinent Nondiscrimination Acts and Authorities
Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the Contractor, for itself, its assignees, and
successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with
the following non-discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits
discrimination on the basis of race, color, national origin);
• 49 CFR part 21 (Non-discrimination in Federally-assisted programs of the Department of
Transportation—Effectuation of Title VI of the Civil Rights Act of 1964);
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
(42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has
been acquired because of Federal or Federal-aid programs and projects);
• Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended
(prohibits discrimination on the basis of disability); and 49 CFR part 27;
• The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits
discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 471, Section 47123), as
amended (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987 (PL 100-209) (broadened the scope, coverage,
and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of
1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the
terms “programs or activities” to include all of the programs or activities of the Federal-aid
recipients, sub-recipients, and contractors, whether such programs or activities are
Federally funded or not);
• Titles II and III of the Americans with Disabilities Act of 1990, which prohibit
discrimination on the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation, and certain testing entities (42
USC §§ 12131 – 12189) as implemented by U.S. Department of Transportation
regulations at 49 CFR parts 37 and 38;
• The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123)
(prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, which ensures nondiscrimination against
minority populations by discouraging programs, policies, and activities with
disproportionately high and adverse human health or environmental effects on minority
and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English
Proficiency, and resulting agency guidance, national origin discrimination includes
discrimination because of limited English proficiency (LEP). To ensure compliance with
Title VI, you must take reasonable steps to ensure that LEP persons have meaningful
access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 USC 1681 et seq).
Reference: 49 USC § 47123, FAA Order 1400.11
Item 1L - 32
Item 1L - 33
FAA – 07 Clean Air/Water Pollution Control
Contractor agrees to comply with all applicable standards, orders, and regulations issued
pursuant to the Clean Air Act (42 USC § 740-7671q) and the Federal Water Pollution
Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any
violation to the Owner immediately upon discovery. The Owner assumes responsibility for
notifying the Environmental Protection Agency (EPA) and the Federal Aviation
Administration.
Contractor must include this requirement in all subcontracts that exceeds $150,000.
Reference: 2 CFR § 200, Appendix II(G)
Item 1L - 34
FAA – 08 Contract Work Hours and Safety Standards
Not applicable to this contract.
Item 1L - 35
FAA – 09 Copeland Anti-Kickback
Not applicable to this contract.
Item 1L - 36
FAA – 10 Davis Bacon Requirements
DAVIS-BACON REQUIREMENTS
Not applicable to this contract.
Item 1L - 37
FAA – 11 Debarment and Suspension
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor must
have certified that neither it nor its principals are presently debarred or suspended by any
Federal department or agency from participation in this transaction.
A11.3.2 Lower Tier Contract Certification
CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT
The Contractor, by administering each lower tier subcontract that exceeds $25,000 as a
“covered transaction”, must verify each lower tier participant of a “covered transaction”
under the project is not presently debarred or otherwise disqualified from participation in
this federally assisted project. The Contractor will accomplish this by:
1. Checking the System for Award Management at website: http://www.sam.gov.
2. Collecting a certification statement similar to the Certification of Offerer /Bidder
Regarding Debarment, above.
3. Inserting a clause or condition in the covered transaction with the lower tier
contract.
If the Federal Aviation Administration later determines that a lower tier participant failed to
disclose to a higher tier participant that it was excluded or disqualified at the time it entered
the covered transaction, the FAA may pursue any available remedies, including
suspension and debarment of the non-compliant participant.
Reference: 2 CFR part 180 (Subpart C), 2 CFR part 1200, DOT Order 4200.5
Item 1L - 38
FAA – 12 Disadvantaged Business Enterprise
Contract Assurance (§ 26.13) –
The Contractor or subcontractor shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. The Contractor shall carry out applicable
requirements of 49 CFR part 26 in the award and administration of Department of
Transportation-assisted contracts. Failure by the Contractor to carry out these
requirements is a material breach of this contract, which may result in the terminati on of
this contract or such other remedy as the Owner deems appropriate, which may include,
but is not limited to:
1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.
Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor
under this prime contract for satisfactory performance of its contract no later than [10 days]
days from the receipt of each payment the prime contractor receives from [the City]. The
prime contractor agrees further to return retainage payments to each subcontractor within
[30 days] days after the subcontractor’s work is satisfactorily completed. Any delay or
postponement of payment from the above referenced time frame may occur only for good
cause following written approval of the [City]. This clause applies to both DBE and non-
DBE subcontractors.
Reference: 49 CFR part 26
Item 1L - 39
FAA – 13 Distracted Driving
TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text
Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While
Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of
Federal grant funds to adopt and enforce safety policies that decrease crashes by
distracted drivers, including policies to ban text messaging while driving when performing
work related to a grant or subgrant.
In support of this initiative, the Owner encourages the Contractor to promote policies and
initiatives for its employees and other work personnel that decrease crashes by distracted
drivers, including policies that ban text messaging while driving motor vehicles while
performing work activities associated with the project. The Contractor must include the
substance of this clause in all sub-tier contracts exceeding $3,500 that involve driving a
motor vehicle in performance of work activities associated with the project.
Reference: Executive Order 13513, DOT Order 3902.10
Item 1L - 40
FAA – 14 Energy Conservation Requirements
Contractor and Subcontractor agree to comply with mandatory standards and policies
relating to energy efficiency as contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (42 USC 6201et seq).
Reference: 2 CFR § 200, Appendix II(H)
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FAA – 15 Drug Free Workplace Requirements
The Drug-Free Workplace Act of 1988 requires some Federal contractors and all Federal
grantees to agree that they will provide drug-free workplaces as a condition of receiving a
contract or grant from a Federal agency. The Act does not apply to contractors,
subcontractors, or subgrantees, although the Federal grantees workplace may be where
the contractors, subcontractors, or subgrantees are working.
Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as
amended)
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FAA – 16 Equal Employment Opportunity
Not applicable to this contract.
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FAA – 17 Federal Fair Labor Standards Act
The provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are
incorporated by reference with the same force and effect as if given in full text. The FLSA
sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and
part-time workers.
The [Contractor | Consultant] has full responsibility to monitor compliance to the
referenced statute or regulation. The [Contractor | Consultant] must address any claims or
disputes that arise from this requirement directly with the U.S. Department of Labor –
Wage and Hour Division.
Reference: 29 USC § 201, et seq
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FAA – 18 Lobbying and Influencing Federal Employees
Consultants and contractors that apply or bid for an award of $100,000 or more must have
certified that it will not and has not used Federal 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 another
award covered by 31 USC 1352. Each tier must also disclose any lobbying with non-
Federal funds that takes place in connection with obtaining any Federal award.
Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix
II(J), 49 CFR part 20, Appendix A
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FAA – 19 Prohibition of Segregated Facilities
Not applicable to this contract.
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FAA – 20 Occupational Safety and Health Act
All contracts and subcontracts that result from this solicitation incorporate by reference the
requirements of 29 CFR Part 1910 with the same force and effect as if given in full text .
The employer must provide a work environment that is free from recognized hazards that
may cause death or serious physical harm to the employee. The employer retains full
responsibility to monitor its compliance and their subcontractor’s compliance with the
applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR Part
1910). The employer must address any claims or disputes that pertain to a referenced
requirement directly with the U.S. Department of Labor – Occupational Safety and Health
Administration.
Reference: 29 CFR part 1910
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FAA – 21 Procurement of Recovered Materials
Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, and the
regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the
extent practicable, the Contractor and subcontractors are to use products containing the
highest percentage of recovered materials for items designated by the Environmental
Protection Agency (EPA) under 40 CFR Part 247 whenever:
1) The contract requires procurement of $10,000 or more of a designated item
during the fiscal year; or
2) The contractor has procured $10,000 or more of a designated item using Federal
funding during the previous fiscal year.
The list of EPA-designated items is available at www.epa.gov/smm/comprehensive-
procurement-guidelines-construction-products.
Section 6002(c) establishes exceptions to the preference for recovery of EPA-designated
products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the
contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or
c) Is only available at an unreasonable price.
Reference: 2 CFR § 200.322, 40 CFR part 247, Solid Waste Disposal Act
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FAA – 22 Rights to Inventions
Not applicable to this contract.
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FAA - 23 Seismic Safety
Not applicable to this contract.
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FAA – 24 Tax Delinquency and Felony Conviction
The Contractor must have certified under the procurement process that resulted in the
award of this contract that:
• Contractor has not been convicted of a Federal felony within the last 24 months; or
• Contractor does not have any outstanding tax liability for which all judicial and
administrative remedies have lapsed or been exhausted.
Reference: Sections 415 and 416 of Title IV, Division L of the Consolidated Appropriations
Act, 2014 (Pub. L. 113-76), and similar provisions in subsequent appropriations acts.
DOT Order 4200.6 - Requirements for Procurement and Non-Procurement Regarding Tax
Delinquency and Felony Convictions
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FAA – 25 Termination of Contract
A25.3.1 TERMINATION FOR CONVENIENCE (CONSTRUCTION & EQUIPMENT
CONTRACTS)
The Owner may terminate this contract in whole or in part at any time by providing written
notice to the Contractor. Such action may be without cause and without prejudice to any
other right or remedy of Owner. Upon receipt of a written notice of termination, except as
explicitly directed by the Owner, the Contractor shall immediately proceed with the
following obligations regardless of any delay in determining or adjusting amounts due
under this clause:
1. Contractor must immediately discontinue work as specified in the written notice.
2. Terminate all subcontracts to the extent they relate to the work terminated under
the notice.
3. Discontinue orders for materials and services except as directed by the written
notice.
4. Deliver to the Owner all fabricated and partially fabricated parts, completed, and
partially completed work, supplies, equipment, and materials acquired prior to termination
of the work, and as directed in the written notice.
5. Complete performance of the work not terminated by the notice.
6. Take action as directed by the Owner to protect and preserve property and work
related to this contract that Owner will take possession.
Owner agrees to pay Contractor for:
1) completed and acceptable work executed in accordance with the contract
documents prior to the effective date of termination;
2) documented expenses sustained prior to the effective date of termination in
performing work and furnishing labor, materials, or equipment as required by the contract
documents in connection with uncompleted work;
3) reasonable and substantiated claims, costs, and damages incurred in settlement
of terminated contracts with Subcontractors and Suppliers; and
4) reasonable and substantiated expenses to the Contractor directly attributable to
Owner’s termination action.
Owner will not pay Contractor for loss of anticipated profits or revenue or other economic
loss arising out of or resulting from the Owner’s termination action.
The rights and remedies this clause provides are in addition to any other rights and
remedies provided by law or under this contract.
TERMINATION FOR CONVENIENCE (PROFESSIONAL SERVICES)
The Owner may, by written notice to the Consultant, terminate this Agreement for its
convenience and without cause or default on the part of Consultant. Upon receipt of the
notice of termination, except as explicitly directed by the Owner, the Contractor must
immediately discontinue all services affected.
Upon termination of the Agreement, the Consultant must deliver to the Owner all data,
surveys, models, drawings, specifications, reports, maps, photographs, estimates,
summaries, and other documents and materials prepared by the Engineer under this
contract, whether complete or partially complete.
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Owner agrees to make just and equitable compensation to the Consultant for satisfactory
work completed up through the date the Consultant receives the termination notice.
Compensation will not include anticipated profit on non-performed services.
Owner further agrees to hold Consultant harmless for errors or omissions in documents
that are incomplete as a result of the termination action under this clause.
A25.3.2 Termination for Default
TERMINATION FOR DEFAULT (CONSTRUCTION)
Section 80-09 of FAA Advisory Circular 150/5370-10 establishes conditions, rights, and
remedies associated with Owner termination of this contract due to default of the
Contractor.
TERMINATION FOR DEFAULT (EQUIPMENT)
The Owner may, by written notice of default to the Contractor, terminate all or part of this
Contract if the Contractor:
1. Fails to commence the Work under the Contract within the time specified in the
Notice- to-Proceed;
2. Fails to make adequate progress as to endanger performance of this Contract in
accordance with its terms;
3. Fails to make delivery of the equipment within the time specified in the Contract,
including any Owner approved extensions;
4. Fails to comply with material provisions of the Contract;
5. Submits certifications made under the Contract and as part of their proposal that
include false or fraudulent statements; or
6. Becomes insolvent or declares bankruptcy.
If one or more of the stated events occur, the Owner will give notice in writing to the
Contractor and Surety of its intent to terminate the contract for cause. At the Owner’s
discretion, the notice may allow the Contractor and Surety an opportunity to cure the
breach or default.
If within [10] days of the receipt of notice, the Contractor or Surety fails to remedy the
breach or default to the satisfaction of the Owner, the Owner has authority to acquire
equipment by other procurement action. The Contractor will be liable to the Owner for any
excess costs the Owner incurs for acquiring such similar equipment.
Payment for completed equipment delivered to and accepted by the Owner shall be at the
Contract price. The Owner may withhold from amounts otherwise due the Contractor for
such completed equipment, such sum as the Owner determines to be necessary to protect
the Owner against loss because of Contractor default.
Owner will not terminate the Contractor’s right to proceed with the Work under this clause
if the delay in completing the work arises from unforeseeable causes beyond the control
and without the fault or negligence of the Contractor. Examples of such acceptable causes
include: acts of God, acts of the Owner, acts of another Contractor in the performance of a
contract with the Owner, and severe weather events that substantially exceed normal
conditions for the location.
If, after termination of the Contractor’s right to proceed, the Owner determines that the
Contractor was not in default, or that the delay was excusable, the rights and obligations of
Item 1L - 53
the parties will be the same as if the Owner issued the termination for the convenience the
Owner.
The rights and remedies of the Owner in this clause are in addition to any other rights and
remedies provided by law or under this contract.
TERMINATION FOR DEFAULT (PROFESSIONAL SERVICES)
Either party may terminate this Agreement for cause if the other party fails to fulfill its
obligations that are essential to the completion of the work per the terms and conditions of
the Agreement. The party initiating the termination action must allow the breaching party
an opportunity to dispute or cure the breach.
The terminating party must provide the breaching party [7] days advance written notice of
its intent to terminate the Agreement. The notice must specify the nature and extent of the
breach, the conditions necessary to cure the breach, and the effective date of the
termination action. The rights and remedies in this clause are in addition to any other
rights and remedies provided by law or under this agreement.
a) Termination by Owner: The Owner may terminate this Agreement in whole or in
part, for the failure of the Consultant to:
1. Perform the services within the time specified in this contract or by Owner
approved extension;
2. Make adequate progress so as to endanger satisfactory performance of the
Project; or
3. Fulfill the obligations of the Agreement that are essential to the completion of the
Project.
Upon receipt of the notice of termination, the Consultant must immediately discontinue all
services affected unless the notice directs otherwise. Upon termination of the Agreement,
the Consultant must deliver to the Owner all data, surveys, models, drawings,
specifications, reports, maps, photographs, estimates, summaries, and other documents
and materials prepared by the Engineer under this contract, whether complete or partially
complete.
Owner agrees to make just and equitable compensation to the Consultant for satisfactory
work completed up through the date the Consultant receives the termination notice.
Compensation will not include anticipated profit on non-performed services.
Owner further agrees to hold Consultant harmless for errors or omissions in documents
that are incomplete as a result of the termination action under this clause.
If, after finalization of the termination action, the Owner determines the Consultant was not
in default of the Agreement, the rights and obligations of the parties shall be the same as if
the Owner issued the termination for the convenience of the Owner.
b) Termination by Consultant: The Consultant may terminate this Agreement in whole or in
part, if the Owner:
1. Defaults on its obligations under this Agreement;
2. Fails to make payment to the Consultant in accordance with the terms of this
Agreement;
3. Suspends the Project for more than [180] days due to reasons beyond the
control of the Consultant.
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Upon receipt of a notice of termination from the Consultant, Owner agrees to cooperate
with Consultant for the purpose of terminating the agreement or portion thereof, by mutual
consent. If Owner and Consultant cannot reach mutual agreement on the termination
settlement, the Consultant may, without prejudice to any rights and remedies it may have,
proceed with terminating all or parts of this Agreement based upon the Owner’s breach of
the contract.
In the event of termination due to Owner breach, the Engineer is entitled to invoice Owner
and to receive full payment for all services performed or furnished in accordance with this
Agreement and all justified reimbursable expenses incurred by the Consultant through the
effective date of termination action. Owner agrees to hold Consultant harmless for errors
or omissions in documents that are incomplete as a result of the termination action under
this clause.
Reference: 2 CFR § 200 Appendix II(B), FAA Advisory Circular 150/5370-10, Section 80-
09
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FAA – 26 Foreign Trade Restriction
TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true –
1) is not owned or controlled by one or more citizens of a foreign country included in the
list of countries that discriminate against U.S. firms as published by the Office of the
United States Trade Representative (USTR);
2) has not knowingly entered into any contract or subcontract for this project with a
person that is a citizen or national of a foreign country included on the list of
countries that discriminate against U.S. firms as published by the USTR; and
3) has not entered into any subcontract for any product to be used on the Federal
project that is produced in a foreign country included on the list of countries that
discriminate against U.S. firms published by the USTR.
This certification concerns a matter within the jurisdiction of an agency of the United States
of America and the making of a false, fictitious, or fraudulent certification may render the
maker subject to prosecution under Title 18 USC Section 1001.
The Contractor must provide immediate written notice to the Owner if the Contractor
learns that its certification or that of a subcontractor was erroneous when submitted or has
become erroneous by reason of changed circumstances. The Contractor must require
subcontractors provide immediate written notice to the Contractor if at any time it learns
that its certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in
accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or
subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country
included on the list of countries that discriminate against U.S. firms published by the
USTR or
2) whose subcontractors are owned or controlled by one or more citizens or nationals of
a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such
USTR list.
Nothing contained in the foregoing shall be construed to require establishment of a system
of records in order to render, in good faith, the certification required by this provision. The
knowledge and information of a contractor is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
The Contractor agrees it will incorporate this provision for certification without modification
in all lower tier subcontracts. The Contractor may rely on the certification of a prospective
subcontractor that it is not a firm from a foreign country included on the list of countries
that discriminate against U.S. firms as published by USTR, unless the Contractor has
knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed when
making an award. If it is later determined that the Contractor or subcontractor knowingly
rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct
through the Owner cancellation of the contract or subcontract for default at no cost to the
Owner or the FAA.
Reference: 49 USC § 50104, 49 CFR part 30
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FAA – 27 Veteran’s Preference
In the employment of labor (excluding executive, administrative, and supervisory
positions), the Contractor and all sub-tier contractors must give preference to covered
veterans as defined within Title 49 United States Code Section 47112. Covered veterans
include Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans,
disabled veterans, and small business concerns (as defined by 15 USC 632) owned and
controlled by disabled veterans. This preference only applies when there are covered
veterans readily available and qualified to perform the work to which the employment
relates.
Reference: 49 USC § 47112(c)
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