Att 12-Prof Svs Agmt_FEMA.pdf

Rev. July 2024_FEMA

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT

AND ____________________ FOR ___________________ PROJECT

THIS AGREEMENT is by and between _______________ (“Consultant”) and the Midpeninsula Regional Open Space District, a public body of the State of California (“District”). Consultant and District agree:

1. Services. Consultant shall provide the services set forth in Exhibit A, Scope of Services and Compensation, attached hereto and incorporated herein by reference (“Services”). The Consultant represents that it possesses all necessary training, licenses and permits to perform the Services and that its performance of the Services will conform to the standard of practice of a professional that specializes in performing professional services of a like nature and complexity.

2. Compensation. Notwithstanding the expenditure by Consultant of time and materials in excess of said compensation amount, Consultant agrees to perform all of the Services for $_______________ , including all materials and other reimbursable amounts. Additionally, in the event of unforeseen circumstances, District may in its sole discretion elect to authorize Consultant to perform additional services on an as-needed basis for a not to exceed amount of $_______________ at the hourly rates set forth in Exhibit A. Consultant shall only be compensated for additional hourly work that is approved in advance by District in writing. Total compensation under this Agreement shall not exceed $_____________. Consultant shall submit invoices on a monthly basis or in accordance with any payment schedules set forth in Exhibit A. All bills submitted by Consultant shall contain sufficient information to determine whether the amount deemed due and payable is accurate. Bills shall include a brief description of services performed, the date services were performed, the number of hours spent and by whom, a brief description of any costs incurred and the Consultant’s signature.

3. Term. This Agreement commences on full execution hereof and terminates on _______________ unless otherwise extended or terminated pursuant to the provisions hereof. Consultant agrees to diligently prosecute the Services to completion and in accordance with any schedules specified in Exhibit A. In the performance of this Agreement, time is of the essence. Time extensions for delays beyond the Consultant’s control, other than delays caused by the District, shall be requested in writing to the District’s Contract Administrator prior to the expiration of the specified completion date.

4. Assignment and Subcontracting. A substantial inducement for District entering into this Agreement is the professional reputation and competence of Consultant. Neither this Agreement nor any interest herein may be assigned or subcontracted by Consultant without the prior written approval of District. It is expressly understood and agreed by both parties that Consultant is an independent contractor and not an employee of the District.

5. Insurance. Consultant, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof acceptable to the District, the insurance coverages specified in Exhibit B, Insurance Requirements, attached hereto and incorporated herein by reference. Consultant shall demonstrate proof of required insurance coverage prior to the commencement of services pursuant to this Agreement, by delivery of Certificates of Insurance to District.

If District has approved assignment and/or subcontracting as provided by Section 4 above, Consultant shall either require each subcontractor to procure and maintain during the life of its subcontract all insurance of the type and in the amounts specified in Exhibit B, or insure the activities of subcontractor(s) under its own policy or policies.

6. Indemnification. Consultant shall indemnify, defend, and hold District, its directors, officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and syao Text Box Attachment 12 causes of action arising out of, pertaining or relating to the negligence, recklessness or willful misconduct of Consultant, its employees, subcontractors, or agents, or on account of the performance or character of the Services, except for any such claim arising out of the sole negligence or willful misconduct of the District, its officers, employees, agents, or volunteers. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in section 2778 of the California Civil Code.

Notwithstanding the foregoing, for any design professional services, the duty to defend and indemnify District shall be limited to that allowed pursuant to California Civil Code section 2782.8. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.

7. Termination.

(a) For Convenience. The District may terminate this Agreement at any time and for any reason by giving the Consultant written notice of the termination. The written notice must set forth the effective date of the termination, which must be at least seven (7) calendar days after the date of the written notice.

(b) For Cause. The District may terminate this Agreement immediately upon written notice for any material breach by the Consultant. A termination for cause shall be effective upon the Consultant’s receipt thereof.

If the District terminates the Agreement for cause and obtains the same services from another consultant at a greater cost, the Consultant is responsible for such excess cost in addition to any other costs or damages the District incurs as a result of Consultant’s breach. The District’s election of remedies shall not be exclusive of any other remedies available at law or in equity.

(c) Delivery of Work Product. If the District terminates the Agreement – whether for convenience or for cause – the District has the option of requiring the Consultant to provide the District with any finished or unfinished Work Product up to the effective date of the termination.

(d) Compensation: The District will pay the Consultant, as final compensation under the Agreement, the reasonable value of Services satisfactorily rendered up to the effective date of the termination. For Services to be “satisfactorily rendered,” the Services must have been performed in accordance with the terms and conditions of this Agreement. The District will determine the reasonable value of satisfactorily rendered Services based on the Scope of Services and Compensation set forth in Exhibit A. If the Agreement is terminated for cause, the District may deduct from the final compensation an amount sufficient to protect the District from any damages or additional expenses it may incur as a result of the Consultant’s breach.

(e) Receipt of Notice: The date of the Consultant’s receipt of a written notice of termination will be determined in accordance with the Notice provisions in Section 15.

8. Ownership of Materials. Except as expressly set forth in this Section 8, the District owns all rights in and to any of the following work product (including electronic equivalents) immediately when and as created by the Consultant or any of its subcontractors pursuant to this Agreement: all documents, materials, and records of a finished nature, including but not limited to final plans, specifications, video or audio tapes, photographs, computer data, software, reports, maps, electronic files and films, and any final revisions (collectively, “Work Product”). The Work Product shall be delivered to District upon termination or expiration of this Agreement, if an earlier time is not otherwise specified in this Agreement or the Scope of Services. All documents and materials of a preliminary nature, including but not limited to notes, sketches, preliminary plans, computations and other data, and any other material referenced in this Section 8, created by Consultant or any of its subcontractors pursuant to this Agreement, are also Work Product owned by the District. Preliminary documents and materials shall be delivered to District upon its request, at no additional charge and without restriction or limitation on their use, except as may be required by applicable law. Upon District’s request, Consultant shall execute appropriate documents to acknowledge or assign to the District the intellectual property rights, including but not limited to copyright or trademark, in the Work Product. All materials provided by District to Consultant pursuant to this Agreement shall remain the District’s property and Consultant shall return all District property in Consultant’s control or possession immediately upon termination of this Agreement.

Notwithstanding the foregoing, if Consultant provides the District with Work Product that incorporates Consultant’s pre-existing intellectual property that was created prior to the commencement of the Services (“Pre-Existing IP”), the District shall not own the rights to such Pre-Existing IP; provided, however, Consultant hereby grants to the District (and any applicable Federal funding agency) an irrevocable, perpetual, non-exclusive, paid-up, royalty-free license to use the Pre-Existing IP so the Work Product may be fully utilized and enjoyed by the license holder. Consultant shall conspicuously and specifically identify any Pre-Existing IP in Work Product at the time it is provided to the District, and by doing so, hereby represents and warrants that it has all necessary rights to incorporate Pre-Existing IP into the Work Product.

9. Compliance with Laws. In the performance of this Agreement, Consultant shall abide by and conform to any and all applicable laws of the United States and the State of California, and all ordinances, regulations, and policies of the District. In addition, in performing this Agreement, Consultant shall comply with the provisions contained in Exhibit C, Federal Contract Requirements, attached hereto and incorporated herein by reference (“Federal Requirements”). If any of the Federal Requirements conflict with any other provisions of this Agreement, the Federal Requirements will take precedence unless the other provision is more restrictive, in which case the other provision will control.

(a) Safety. Consultant warrants that all work done under this Agreement will be in compliance with all applicable safety rules, laws, statutes, and practices, including but not limited to Cal/OSHA regulations. If a license or registration of any kind is required of Consultant, its employees, agents, or subcontractors by law, Consultant warrants that such license has been obtained, is valid and in good standing, and Consultant shall keep it in effect at all times during the term of this Agreement, and that any applicable bond shall be posted in accordance with all applicable laws and regulations.

(b) Fire Safety. Consultant is responsible for any fire ignited during the performance of the Services.

Consultant will take necessary precautions to guard against and eliminate fire hazards. Consultant activities that could start a fire within or adjacent to any wildland area must not occur during a red flag event or within 24 hours of a predicted red flag event as determined by the National Weather Service (see http://www.wrh.noaa.gov/mtr/).

(c) Prevailing wage. Consultant is responsible for complying with applicable prevailing wage requirements. The higher of the two applicable prevailing wage rates, federal or state, will be enforced. The Consultant’s duty to pay State prevailing wages can be found under Labor Code Section 1770 et seq. Labor Code Sections 1775 and 1777.7 outline the penalties for failure to pay prevailing wages and to employ apprentices, including forfeitures and debarment. The State Wage Decision is available online at http://www.dir.ca.gov/dlsr/.

10. Conflict of Interest. Consultant warrants and covenants that Consultant presently has no interest in, nor shall any interest be hereinafter acquired in, any matter which will render the Services a violation of any applicable state, local, or federal law. In the event that any conflict of interest should nevertheless hereinafter arise, Consultant shall promptly notify District of the existence of such conflict of interest so that the District may determine whether to terminate this Agreement. Consultant further warrants its compliance with the Political Reform Act (Government Code § 81000 et seq.) respecting this Agreement.

Consultant’s duties and services under this Agreement shall not include preparing or assisting the District with any portion of the District’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the District. The District entering this Agreement shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. Consultant’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Consultant shall cooperate with the District to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by Consultant pursuant to this Agreement.

11. Whole Agreement and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties and integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or any previous written or oral Agreements between the parties with respect to all or any part of the subject matter hereof. The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established herein. This Agreement may be amended only by a written document, executed by both Consultant and District's General Manager, and approved as to form by the District’s General Counsel. Such document shall expressly state that it is intended by the parties to amend certain terms and conditions of this Agreement. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. Multiple copies of this Agreement may be executed but the parties agree that the Agreement on file in the office of District's District Clerk is the version of the Agreement that shall take precedence should any differences exist among counterparts of the document. Other than as set forth elsewhere in this Agreement, in the event that any term, condition, provision, requirement or specification set forth in this body of the Agreement conflicts with or is inconsistent with any term, condition, provision, requirement or specification in any exhibit and/or attachment to this Agreement, the provisions of this body of the Agreement shall prevail. This Agreement and all matters relating to it shall be governed by the laws of the State of California.

12. Capacity of Parties. Each signatory and party hereto warrants and represents to the other party that it has all legal authority and capacity and direction from its principal to enter into this Agreement and that all necessary actions have been taken so as to enable it to enter into this Agreement.

13. Severability. Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give effect to the intentions of the parties.

14. Survival. Any and all provisions of this Agreement, which by their nature or effect are required or intended to be observed, kept, or performed after the expiration or termination of this Agreement, including, without limitation, indemnities, confidentiality, liability, warranties and ownership of materials, shall survive the expiration or earlier termination of this Agreement and remain binding upon and for the parties’ benefit.

15. Notice. Any notice required or desired to be given under this Agreement shall be in writing and shall be personally served or, in lieu of personal service, may be given by any of the following means addressed to the contact person identified in Exhibit A at the address identified on the signature page(s) below: (i) depositing the notice in the United States mail, registered or certified, return receipt requested, postage prepaid; (ii) transmitting such notice by means of Federal Express or similar commercial courier, postage paid; or (iii) by personal delivery. Notices shall be deemed received as follows: (i) U.S. mail shall be deemed received on the third day following deposit with the U.S. Postal Service; (ii) commercial courier shall be deemed given on the date shown on the receipt for acceptance or rejection of the notice; (iii) personal delivery shall be deemed given on the date of delivery. Either party may, by written notice in accordance with this Section, change the address to which notices addressed to it shall thereafter be sent.

16. Miscellaneous.

a. Except to the extent that it provides a part of the definition of the term used herein, the captions used in this Agreement are for convenience only and shall not be considered in the construction of interpretation of any provision hereof, nor taken as a correct or complete segregation of the several units of materials and labor.

b. Capitalized terms refer to the definition provide with its first usage in the Agreement.

c. When the context of this Agreement requires, the neuter gender includes the masculine, the feminine, a partnership or corporation, trust or joint venture, and the singular includes the plural.

d. The terms “shall”, “will”, “must” and “agree” are mandatory. The term “may” is permissive.

e. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement.

f. When a party is required to do something by this Agreement, it shall do so at its sole cost and expense without right to reimbursement from the other party unless specific provision is made otherwise.

g. Where any party is obligated not to perform any act, such party is also obligated to restrain any others within its control from performing such act, including its agents, invitees, contractors, subcontractors and employees.

IN WITNESS WHEREOF, Consultant and District execute this Agreement.

MIDPENINSULA REGIONAL OPEN

SPACE DISTRICT

CONSULTANT

5050 El Camino Real Los Altos, CA 94022

Address

By: By:

Name: Name:

Title: Title:

Date: Date:

Federal Employer ID #:

Attest: License #:

Maria Soria Expiration Date:

District Clerk

Approved as to form:

Hilary Stevenson General Counsel

Attachments:

Exhibit A – Scope of Services and Compensation Exhibit B – Insurance Requirements Exhibit C – Federal Contract Requirements

EXHIBIT A

SCOPE OF SERVICES AND COMPENSATION

1. Scope of Services and Schedule Consultant shall, in accordance with the Agreement, perform all of the Services set forth in Exhibit A-1 attached hereto and incorporated herein by reference.

2. Compensation [Compensation structure to be determined based on selected proposal] Single Fixed Fee: For performance of all of the Services by Consultant as herein required, District will pay a single fixed fee in the amount of: $__________. Compensation will be paid following completion of all of the Services. The single fixed fee includes all incidental expenses incurred by Consultant in performing the Services.

Phased Fixed Fee: For the performance of each phase or portion of the Scope of Services by Consultant, District shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones set forth in Exhibit A-1. Consultant shall not commence Services under any Phase, and shall not be entitled to compensation for a Phase, unless District has issued a notice to proceed to Consultant for that Phase. The phased fixed fee includes all incidental expenses incurred by Consultant in performing the Services.

Time and Materials: For performance of the Services by Consultant as herein required, District will pay Consultant for the productive hours of time spent by Consultant in the performance of said Services and incidental expenses incurred, at the rates or amounts set forth in the Rate Schedule included in Exhibit A-1, according to the following terms and conditions:

Reimbursable Expenses: The District will pay Consultant for the reasonable and necessary cost of incidental expenses identified in Exhibit A-1. The Consultant is not entitled to reimbursement for any individual expense exceeding $ , unless the District has pre-authorized the expense in writing. Consultant’s aggregate reimbursable expenses under the Agreement shall not exceed

Not-To-Exceed Limitation: Consultant shall perform all of the Services for a not-to-exceed amount of $ , including all materials and other reimbursable amounts.

3. Contract Administrators

District:

Consultant:

4. Permitted Subconsultants

EXHIBIT B

INSURANCE REQUIREMENTS

Summary of Required Coverages:

Statutory Worker’s Compensation Insurance and Employer’s Liability Insurance coverage:

$1,000,000

Commercial General Liability Insurance: $1,000,000 (Minimum), $2,000,000 Aggregate Business Automobile Liability Insurance-with coverage evidencing “any auto” and with limits of at least $1,000,000 per occurrence.

Errors and Omissions Insurance (or Professional Liability): $1,000,000

Workers' Compensation. Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant shall be provided if required under the California Labor Code.

Commercial General and Automobile Liability. Consultant, at Consultant's own cost and expense, shall maintain Commercial General and Business Automobile Liability insurance for the period covered by this Agreement in an amount not less than the amount set forth in this Exhibit B, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting there from, and damage to property resulting from activities contemplated under this Agreement, including the use of hired, owned and non-owned automobiles. Coverage shall be at least as broad as the latest edition of the Insurance Services Office Commercial General Liability occurrence form CG 0001 and Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 (any auto). No endorsement shall be attached limiting the coverage.

a. A policy endorsement must be delivered to District demonstrating that District, its officers, employees, agents, and volunteers are to be covered as insured as respects each of the following:

liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant.

The coverage shall contain no special limitations on the scope of protection afforded to District, its officers, employees, agents, or volunteers.

b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.

c. An endorsement must state that coverage is primary insurance and that no other insurance affected by the District will be called upon to contribute to a loss under the coverage.

d. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to District and its officers, employees, agents, and volunteers.

e. Insurance is to be placed with California-admitted insurers.

Professional Liability. Where Consultant is a licensed professional, Consultant, at Consultant's own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount set forth in this Exhibit B covering the licensed professionals' errors and omissions.

a. The following provisions shall apply if the professional liability coverages are written on a claims made form:

1) The retroactive date of the policy must be shown and must be before the date of the Agreement.

2) Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work.

3) If coverage is canceled or not renewed and it is not replaced with another claim made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The District shall have the right to exercise at the Consultant's cost, any extended reporting provisions of the policy should the Consultant cancel or not renew the coverage.

4) A copy of the claim reporting requirements must be submitted to the District prior to the commencement of any work under this Agreement.

Deductibles and Self-Insured Retentions. Consultant shall disclose the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. Any self-insured retention or deductible is subject to approval of District. During the period covered by this Agreement, upon express written authorization of District Legal Counsel, Consultant may increase such deductibles or self-insured retentions with respect to District, its officers, employees, agents, and volunteers. The District Legal Counsel may condition approval of an increase in deductible or self-insured retention levels upon a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.

Notice of Reduction in Coverage. In the event that any coverage required under the Agreement is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to District at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage.

Remedies. In addition to any other remedies District may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, District may, at its sole option:

Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

Order Consultant to stop work under this Agreement or withhold any payment which becomes due to

Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof;

Terminate this Agreement.

Exercise of any of the above remedies, however, is an alternative to other remedies District may have and is not the exclusive remedy for Consultant's failure to maintain insurance or secure appropriate endorsements.

EXHIBIT C

FEDERAL CONTRACT REQUIREMENTS

This Agreement is funded in whole or in part by federal funds and subject to the federal requirements set forth herein. In addition, the Agreement is subject to the ________________________ dated ______________ (Funding Agreement), the terms of which are fully incorporated by this reference and made part of the Agreement. Copies of the Funding Agreement will be made available upon request. For purposes of this Exhibit C, the Agreement shall be referred to as the “Contract” and the Consultant shall be referred to as the “Contractor.”

1. Contract Work Hours and Safety Standards Act. In addition to the California state law requirements, Contractor and each subcontractor must comply with the requirements of the federal Contract Work Hours and Safety Standards Act, as set forth in 40 U.S.C. §§ 3701-3708, as supplemented by the regulations set forth in 29 CFR Part 5, as may be amended from time to time, which are fully incorporated herein, including:

(A) No Contractor or subcontractor will require or permit any laborer or mechanic performing Work for the Project to work in excess of 40 hours in a work week 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 40 hours during that work week.

(B) If Contractor or a subcontractor violates this requirement, the Contractor and any responsible subcontractor will be liable for the unpaid wages. In addition, the Contractor and subcontractor will be liable to the United States for liquidated damages. The liquidated damages will be computed with respect to each individual worker as specified under federal law.

(C) Contractor and subcontractors must insert this requirement into subcontracts of any tier.

Contractor is responsible for compliance with these requirements by each Subcontractor of any tier.

2. Rights to Inventions. If the federal funding for this Contract meets the definition of “funding agreement” under 37 CFR § 401.2(a) and constitutes an agreement between the District and a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency, will apply to this Contract and are fully incorporated into the Contract Documents by this reference.

3. Clean Air Act. If the Contract is for an amount in excess of $150,000, Contractor and each Subcontractor must comply with the requirements of the Clean Air Act, as amended (42 U.S.C. §§ 7401- 7671q), which are fully incorporated into the Contract Documents by this reference, including requirements for reporting violations to the awarding agency and the applicable Regional Office for the Environmental Protection Agency. Contractor and subcontractors must insert this requirement into subcontracts of any tier in excess of $150,000.

4. Federal Water Pollution Control Act. If the Contract is for an amount in excess of $150,000, the requirements of the Federal Water Pollution Control Act (33 U.S.C. §§ 1251-1387) apply to this Contract and are fully incorporated into the Contract Documents by this reference, including requirements for reporting violations to the awarding agency and the applicable Regional Office for the Environmental Protection Agency. Contractor and subcontractors must insert this requirement into subcontracts of any tier in excess of $150,000.

5. Suspension and Debarment. Contractor is required to verify that neither it, nor its principals, as defined at 2 CFR § 180.995, or its affiliates, as defined at 2 CFR § 180.905, are excluded or disqualified, as defined at 2 CFR §§ 180.935 and 180.940. Contractor must comply with 2 CFR Part 180, subpart C and 2 CFR Part 3000, subpart C, and must include a provision requiring compliance with these regulations in any subcontract of any tier. If it is later determined that the Contractor did not comply with the applicable subparts, the Federal Government may pursue available remedies, including, but not limited to, suspension and/or debarment. By submitting a bid and entering into this Contract, Contractor agrees to comply with these requirements.

6. Byrd Anti-Lobbying Amendment. If the Contract is for an amount in excess of $100,000, Contractor must comply with the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352) and file the certification provided at 44 CFR Part 18, Appendix A, and any disclosures, with the applicable federal agency. Each tier certifies to the tier above 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 any other award covered by 31 U.S.C. § 1352. Each tier will also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures will be forwarded from tier to tier up to the recipient.

7. Prohibition on Covered Telecommunications. Federal loan or grant funds must not be obligated or expended to procure or obtain covered telecommunications equipment or services, extend or renew a contract to procure or obtain covered telecommunications equipment or services, or enter into a contract (or extend or renew a contract) to procure or obtain covered telecommunications equipment or services, as further specified in 2 CFR § 200.216, which is fully incorporated into the Contract Documents by this reference. “Covered telecommunications equipment or services” means any of the following: telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities); video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); telecommunications or video surveillance services provided by such entities or using such equipment; or telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. The term “covered telecommunications equipment or services” also includes systems 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.

8. Small and Minority Businesses. The Contractor will consider small businesses, minority businesses, women’s business enterprises, veteran-owned businesses, and labor surplus area firms for subcontracts, as set forth in 2 CFR § 200.321. Consideration means:

(A) These business types are included on solicitation lists;

(B) These business types are solicited whenever they are deemed eligible as potential sources;

(C) Dividing procurement transactions into separate procurements to permit maximum participation by these business types;

(D) Establishing delivery schedules that encourage participation by these business types;

(E) Utilizing organizations such as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and

(F) Requiring subcontractors to apply this section to lower-tier subcontracts, if any.