Tab 3 - Edwards RFLP Appendix B_ RFLP No. AFCEC-27-R-0001.pdf

Request for Lease Proposal No. AFCEC-27-R-0001 Appendix B

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United States Department of the Air Force

Air Force Civil Engineer Center

Installations Directorate (AFCEC/CI)

Enhanced Use Leasing Project

Edwards Air Force Base

Request for Lease Proposal (RFLP)

Mandatory Clauses

RFLP No. AFCEC-27-R-0001

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APPENDIX B

MANDATORY CLAUSES REQUIRED BY FEDERAL LAW

The clauses in this Appendix will be incorporated into and included in the lease as noted below but the failure to expressly incorporate or include in these clauses into the lease shall not be deemed to relieve the Lessee from compliance with these clauses.

THE FOLLOWING CLAUSES APPLY TO ALL LEASES:

ANTI-KICKBACK PROCEDURES

Lessee shall have in place and follow reasonable procedures designed to prevent and detect, in its own business operations, any of the following activities in connection with this Lease or any agreement relating to this Lease: (i) persons providing or attempting to provide or offering to provide any kickback; or (ii) persons soliciting, accepting, or attempting to accept any kickback.

Lessee further warrants that, when it has reasonable grounds to believe that any of the activities described in this Section may have occurred, it shall promptly report in writing such activities to the Government and either the Air Force Inspector General’s office or the Department of Justice.

Lessee shall cooperate fully with any federal agency investigating such activities.

(End of clause)

GRATUITIES

The Government may, by a Default Termination Notice, terminate this Lease if it is found, after notice and hearing by the Secretary of the Air Force, or his/her duly authorized representative, that gratuities in the form of entertainment, gifts, or otherwise, were offered or given by the

Lessee, or any agent or representative of the Lessee, to any officer or employee of the

Government with a view toward procuring an agreement or procuring favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such agreement; provided that the existence of the facts upon which the Secretary of the Air Force or his/her duly authorized representative makes such finding shall be an issue and may be reviewed in any competent court. In the event this Lease is so terminated, the

Government shall be entitled to pursue the same remedies against Lessee as it could pursue in the event of an Event of Default, and as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages (in an amount as determined by the Secretary of the

Air Force or his/her duly authorized representative) which shall be not less than three (3), nor more than ten (10), times the costs incurred by the Lessee in providing any such gratuities to any such officer or employee.

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COVENANT AGAINST CONTINGENT FEES

Lessee warrants that no person or agency has been retained to solicit or secure this Lease for a commission, percentage, brokerage, or contingent fee, except bona fide employees or bona fide established commercial agencies maintained by Lessee for the purpose of securing business.

OFFICIALS NOT TO BENEFIT

No member of or delegate to the Congress of the United States of America or Resident

Commissioner of the United States of America shall be admitted to any share or part of this

Lease or to any benefit that may arise therefrom, but this provision shall not be construed to extend to this Lease if made with a corporation for its general benefit.

NO JOINT VENTURE

Nothing contained in this Lease creates a partnership or joint venture between the Parties, it being agreed that the only relationship between the Government and Lessee under this Lease is that of landlord and tenant. Nothing in this Lease shall render either Party liable to any third party for the debts or obligations of the other Party.

DISPUTES

a. Parties to Negotiate. If a dispute should arise, the Parties agree to first attempt to resolve the dispute using unassisted negotiation techniques (i.e., without the assistance of a neutral third party). Either Party may request in writing that unassisted negotiations commence. As part of the unassisted negotiation, the Parties shall consider employing joint fact-finding, if material factual disputes are involved, and shall use other early resolution techniques appropriate to the circumstances. If the dispute involves material issues of fact, the Parties may employ a neutral third party to provide a confidential evaluation of the issues of fact.

b. Alternative Dispute Resolution.

b.1. If the dispute is not resolved within sixty (60) days after the request for unassisted negotiations, and the Parties do not mutually agree to continue the unassisted negotiations, the

Parties shall employ alternative dispute resolution (ADR) procedures involving nonbinding mediation of the dispute by a neutral third party. The ADR procedures employed shall include a confidential evaluation of both the facts and the law and the issuance of confidential recommendations by the neutral third party.

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b.2. By entering into this Lease, the Parties have voluntarily adopted ADR procedures in accordance with 5 U.S.C. § 572(c). These procedures shall not be employed if determined by either Party to be inappropriate after taking into consideration the factors enumerated at 5 U.S.C.

§ 572(b). A Party rejecting ADR as inappropriate shall document its reasons in writing and deliver them to the other Party. The Parties shall enter into a master written ADR Agreement governing ADR proceedings that may be amended as needed to fit individual proceedings. (A template for an acceptable ADR agreement may be found at www.adr.af.mil).

b.3. The Government’s obligation to make any payment arising out of an agreement resolving a dispute under this Lease is contingent upon the availability of funds proper for such payment.

b.4. This Lease is subject to Contract Disputes Act of 1978, as amended, 41 U.S.C. §§7101-

7109. If the Parties are unable to resolve the dispute following unassisted negotiations and/or the

ADR proceeding, the contracting officer shall issue a final decision under the Contract Disputes

Act. Before the contracting officer can issue a final decision on a Lessee claim, the claim must be submitted in writing to the contracting officer at the address provided in Section [21] and must comply with all requirements of 41 U.S.C. § 7103. The contracting officer’s final decision may be appealed as provided in 41 U.S.C. § 7104.

FACILITIES NONDISCRIMINATION

a. As used in this Section, the term “Facility” means lodgings, stores, shops, restaurants, cafeterias, restrooms, and any other facility of a public nature on the Leased Premises.

b. Lessee agrees that it will not discriminate against any person because of race, color, religion, sex, gender, sexual orientation, or national origin in furnishing, or by refusing to furnish, to such person or persons the use of any Facility, including any and all services, privileges, accommodations, and activities provided on the Project. This does not require Lessee to furnish to the general public the use of any Facility customarily furnished by the Lessee solely to sublessees or to Government military and civilian personnel, and the guests and invitees of any of them.

EQUAL OPPORTUNITY

a. The following provisions are applicable unless this Lease is exempt under the rules, regulations and relevant orders of the Department of Labor (41 C.F.R. Ch 60).

b. Lessee shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, gender, sexual orientation, or national origin. Lessee shall, in all solicitations or advertisements for employees placed by or on behalf of Lessee, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, gender, sexual orientation, or national origin.

http://www.adr.af.mil/

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c. Lessee shall take proactive steps to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, gender, sexual orientation, or national origin. Such action shall include employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

d. Lessee shall post, in conspicuous places available to employees and applicants for employment, the notices to be provided by the Government for this Lease that explain this clause.

e. Lessee shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, the notice to be provided by the Government advising the labor union or workers’ representative of the Lessee’s commitments under this equal opportunity clause, and post copies of the notice in conspicuous places available to employees and applicants for employment.

f. Lessee shall comply with all provisions of Executive Order No. 11246, as amended, and of the rules, regulations, and relevant orders of the Department of Labor. Lessee shall furnish all information required by Executive Order No. 11246 and by the rules, regulations, and orders of the Department of Labor, or pursuant thereto, and shall permit access to its books, records, and accounts by the leasing agency and the Department of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.

g. In the event of Lessee’s noncompliance with the equal opportunity clause of this Lease or with any of the rules, regulations, or orders described in this Section, the Government may take appropriate action to enforce compliance, and subject to other provisions of this Lease, may terminate this Lease for default as provided in the Lease, and Lessee may be declared ineligible for further Government leases and other contracts in accordance with procedures authorized in

Executive Order No. 11246, as amended, or by rule, regulation, or order of the Department of

Labor, or as otherwise provided by law.

h. Notwithstanding any other provision in this Lease, disputes relative to this equal opportunity clause will be governed by the procedures in 41 C.F.R. § 60 1.1.

DRUG-FREE WORKPLACE

(a) Definitions. As used in this clause-

“Controlled substance” means a controlled substance in schedules I through V of section

202 of the Controlled Substances Act (21 U.S.C.812) and as further defined in regulation at 21

CFR 1308.11 - 1308.15.

http://uscode.house.gov/browse.xhtml%3Bjsessionid%3D114A3287C7B3359E597506A31FC855B3

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“Conviction” means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes.

“Criminal drug statute” means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, possession, or use of any controlled substance.

“Drug-free workplace” means the site(s) for the performance of work done by the Lessee in connection with a specific lease where employees of the Lessee are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.

“Employee” means an employee of a Lessee directly engaged in the performance of work under a Government lease. “Directly engaged” is defined to include all direct cost employees and any other Lessee employee who has other than a minimal impact or involvement in lease performance.

“Individual” means an offeror/Lessee that has no more than one employee including the offeror/Lessee.

(b) The Lessee, if other than an individual, shall within 30 days after award (unless a longer period is agreed to in writing for leases of 30 days or more performance duration), or as soon as possible for contracts of less than 30 days performance duration-

(1) Publish a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the Lessee’s workplace and specifying the actions that will be taken against employees for violations of such prohibition.

(2) Establish an ongoing drug-free awareness program to inform such employees about-

(i) The dangers of drug abuse in the workplace.

(ii) The Lessee’s policy of maintaining a drug-free workplace.

(iii) Any available drug counseling, rehabilitation, and employee assistance programs; and

(iv) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace.

(3) Provide all employees engaged in performance of the contract with a copy of the statement required by paragraph (b)(1) of this clause.

(4) Notify such employees in writing in the statement required by paragraph (b)(1) of this clause that, as a condition of continued employment on this lease, the employee will-

(i) Abide by the terms of the statement; and

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(ii) Notify the employer in writing of the employee’s conviction under a criminal drug statute for a violation occurring in the workplace no later than 5 days after such conviction.

(5) Notify the Government in writing within 10 days after receiving notice under subdivision (b)(4)(ii) of this clause, from an employee or otherwise receiving actual notice of such conviction. The notice shall include the position title of the employee.

(6) Within 30 days after receiving notice under subdivision (b)(4)(ii) of this clause of a conviction, take one of the following actions with respect to any employee who is convicted of a drug abuse violation occurring in the workplace.

(i) Taking appropriate personnel action against such employee, up to and including termination; or

(ii) Require such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; and

(7) Make a good faith effort to maintain a drug-free workplace through implementation of paragraphs (b)(1) through (b)(6) of this clause.

(c) The Lessee, if an individual, agrees by award of the lease or acceptance of a purchase order, not to engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance while under this lease.

(d) In addition to other remedies available to the Government, the Lessee’s failure to comply with the requirements of paragraph (b) or (c) of this clause may render the Lessee subject to suspension of payments, termination of the lease or default, and suspension or debarment, as applicable.

DAVIS-BACON ACT

The Government’s involvement in the oversight of the Davis-Bacon Act requirements is limited to monitoring the Project Owner’s responsibilities only during the construction period(s). This oversight involves validating the Project Owner ensures that any class of laborers or mechanics employed, or working on the site, are in compliance with the Davis-Bacon wage classifications and standards.

WITHHOLDING OF FUNDS

The Government Representative shall, upon his or her own action or upon written request of an authorized representative of the Department of Labor, withhold or cause it to be withheld from the Lessee under this lease or any other Federal contract with the same Lessee, or any other

Federally assisted contract subject to Davis-Bacon prevailing wage requirements, which is held

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by the same Lessee, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Lessee or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Government Representative may, after written notice to the Lessee, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

PAYROLLS AND BASIC RECORDS

(a) Payrolls and basic records relating thereto shall be maintained by the Lessee during the course of the work and preserved for a period of 3 years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid

(including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the

Secretary of Labor has found, under paragraph (d) of the clause entitled Davis-Bacon Act, that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis- Bacon

Act, the Lessee shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. The Lessee agrees that it and subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

(b) (1) The Lessee shall submit weekly for each week in which any lease work is performed a copy of all payrolls to the Government Representative. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph (a) of this clause. This information may be submitted in any form desired.

Optional Form WH-347 (Federal Stock Number 029-005-00014-1) is available for this purpose and may be purchased from the Superintendent of Documents, U.S. Government

Printing Office, Washington, DC 20402. The Prime Lessee is responsible for the submission of copies of payrolls by all subcontractors.

(2) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the Lessee or sub-Lessee or his or her agent who pays or supervises the payment of the persons employed under the lease and shall certify—

(i) That the payroll or the payroll period contains the information required to be maintained under paragraph (a) of this clause and that such information is correct and complete.

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(ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the lease during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR Part 3; and

(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by subparagraph (b)(2) of this clause.

(4) The falsification of any of the certifications in this clause may subject the Lessee or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and

Section 3729 of Title 31 of the United States Code.

(5) The Lessee or subcontractor shall make the records required under paragraph (a) of this clause available for inspection, copying, or transcription by the Government

Representative or the Department of Labor. The Lessee or subcontractor shall permit the

Government Representative or the Department of Labor to interview employees during working hours on the job. If the Lessee or subcontractor fails to submit required records or to make them available, the Government Representative may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR

5.12.

APPRENTICES AND TRAINEES

(a) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State

Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first

90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of

Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Lessee as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in this paragraph, shall be paid not less than the applicable wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate

Request for Lease Proposal No. AFCEC-26-R-0024

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on the wage determination for the work actually performed. Where a Lessee is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate specified in the Lessee’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and

Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the Lessee will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(b) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and

Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training

Administration. Every trainee must be paid at no less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed in the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate in the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training

Administration shall be paid not less than the applicable wage rate in the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate in the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program; the Lessee will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(c) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this clause shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

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