HomeMy WebLinkAboutResolution No. 5761RESOLUTION NO. 5761
A RESOLUTION AUTHORIZING THE SIGNING
OF A LEASE OR AGREEMENT
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL HEREBY RESOLVES as
follows:
The MAYOR and CITY CLERK are authorized to execute, on
behalf of the City of San Rafael a lease or agreement with the
State of California, Department of Navigation and Ocean Development
(Police/Fire Boat), a copy of which is hereby attached and by this
reference made a part hereof.
I, JEANNE M. LEONCINI, City Clerk of the City of San Rafael,
hereby certify that the foregoing resolution was duly and regularly
introduced and adopted at a regular meeting of the City Council of
said City held on Monday, the 17th day of September
1979, by the following vote, to wit:
AYES: COUNCILMEMBERS: Breiner, Miskimen & Acting Mayor Jensen
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Nixon & Mayor Mulryan
ffNN-F M. LEONCINI, WTY CLERK
G.' -M
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- or CALI/OR4U
113 1REY 8.72
asp
EQUIPDIENT AND OPERATION AGREa!ENTT
BOATING SAFETY AND ENFORCE?v[ENT GRANT
THIS AGREEMENT is made and entered into this 23 day of July, 1979 ,
by and between the State Department of Boating and h'aterways and the
City of San Rafael.
THE FOLLOWING TERMS are defined and hereinafter referred to as follows:
DEPAR714ENT - The State of California acting by and through the Department
of Boating and Waterways.
CITY - The City of San Rafael.
FEDERAL FUNDS - Those funds appropriated by the Federal Government under
the Federal Boat Safety Act of 1971.
CITY FUNDS - Any funds appropriated for, or otherwise provided by
CITY for operation and maintenance of patrol boat.
TERM OF OPERATION - That period of time commencing on the date first
herein appearing and terminating ten (10) years thereafter.
PATROL BOAT-- Patrol boat and related equipment
for use in boating safety and boating law enforcement.
W I T N E S S E T H
WHEREAS, pursuant to Section 61.4 of the Harbors and Navigation Code,
the Director of DEPARTMENT, with the approval of the Director of Finance,
may accept on behalf of DEPARDIENT Federal grants for the purposes for
which the DEPARTMENT is established; and
WHEREAS, FEDERAL FUNDS have been provided to DEPARTDTNT for the purpose
of improving boating safety and law enforcement; and
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[ Of Cwl1IO-1.
113 REV 8.721
OSS
WHEREAS, DEPARTNIENT finds that an improved boating safety and law
enforcement program can be accomplished if funds are provided for the
purpose of patrolling the navigable waters of the State; and
WHEREAS, CITY is desirous of improving its boating safety and
law enforcement program; and
WHEREAS, DEPARDIENT and CITY desire to enter into an agreement
to provide for the operation and maintenance of a PATROL BOAT.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto hereby agree as follows:
1. DEPAMIE,1i T will provide CITY with PATROL BOAT
to be used for boating safety and enforcement activities.
2. During TERM OF OPERATION, CITY shall, with funds available to
CITY operate and maintain PATROL BOAT or cause to be
operated and maintained, and DEPARTMENT shall not be held liable for the
cost of said operation and maintenance, except as otherwise specified
herein. Such maintenance shall include, but not be limited to, keeping
PATROL BOAT - in good repair.
3. During TERM OF OPERATION, CITY shall keep complete and accurate
records of all expenditures pertaining to the purchase of additional equip-
ment, operation, and maintenance of PATROL BOAT and
said records shall, at all reasonable times, be open and available for
inspection and audit by any duly authorized official of DEPARTT�IENT.
4. CITY shall patrol during peak boating periods, and shall be
available for search and rescue operations.
S. CITY agrees to replace, at CITY expense, the PATROL
BMT if destroyed or rendered useless by any casualty, including
but not limited to, fire, theft, acts of vandalism, or other disaster,
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RT PAPER
Or CALIFO IINIA
113 1REV l 721
O!P
whether enumerated here or not, during the TERM OF OPERATION.
6. CITY hereby certifies that the obligations created by this
agreement do not violate the provisions of Sections 1090 to 1096 of the
Government Code.
7. The parties hereto agree that CITY and any of its agents and
employees in the performance of this agreement shall act in an independent
capacity, and not as officers or employees or agents of DEPARTMENT.
8. CITY shall, insofar as allowable by law, indemnify, hold harmless,
and defend DEPARTMENT and the State of California, officers, agents, and
employees of either of them against any and all claims, demands, costs,
expenses, or liabilities arising out of the operation and maintenance of
PATROL BOAT except for liability arising out of
the sole negligence of DEPARTMENT, its officers, agents, or employees,
and for which DEPARTMENT is othenJise responsible.
9. CITY hereby waives all claims and recourse against the DEPARTtiIENT,
including the right to contribution for loss or damage to persons or
property arising from, growing out of, or in any way connected with or
incident to the operation and maintenance of PATROL BOAT
except claims arising from the sole negligence of DEPARTMENT, its officers,
agents, or employees, and for which DEPARTMENT is otherwise legally
responsible.
10. In the event DEPARTD-M and/or the State of California is named as
codefendant in any legal action concerning operation and maintenance of
PATROL BOAT , CITY shall notify DEPARTMENT
of such fact, and shall defend DEPARTMENT in such legal action, unless
DEPARTMENT undertakes to represent itself, in which event DEPARTIvEN T shall
bear its own litigation costs, expenses, and attorney's.fees.
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Or CALIFORNIA
113 1REV B•72,
asp
11. During TERM OF OPERATION, the DEPARTMENT shall be the legal oivner of
PATROL BOAT and CITY
shall be the registered ouner, interest herein or hereunder shall not be
assigned, mortgaged, hypothecated, or transferred, either by CITY
or by operation of lai\r, without prior written approval of DEPARDIENT.
12. During TERM OF OPERATION, this agreement, at the option of DEPARTMENT,
may be terminated by DEPARTMENT for the material breach by CITY
of any of the terms herein. Such termination shall become effective NINETY
(90) days following date of written notification by DEPARTENT to CITY
as provided in paragraph 18 herein.
13. During TERM OF OPERATION, this agreement, at the option of DEPARTti1ENT,
may be terminated immediately if the legislative body of CITY
fails to appropriate funds necessary for compliance with terms of this
contract.
14. During TERM OF OPERATION, this agreement, at the option of CITY
may be terminated -by CITY for the material breach by DEPARTMENT of any
of the terms of this agreement, or for any acts or omissions by DEPARTMENT,
or occurrences beyond the control of CITY which render it impossible
for CITY to comply with the terms and provisions of this agreement.
Such termination shall become effective NINETY (90) days following date of
written notification by CITY to DEPARTMENT, as provided in paragraph 18
herein.
15. During TERM OF OPERATION, this agreement may be terminated immediately
by mutual consent by both CITY and DEPARTMENT.
16. In the event of termination for any reason, CITY
shall deliver said PATROL BOAT to DEPARTMENT, and agrees
to execute any documents necessary to effect appropriate changes in pertinent
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1 R PAPER
rr orCALIIORIIIA
113 ,REV 0.72,
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18. In the event either party desires or is required to send notice to the
other, such notice shall be deemed to have been given when mailed to the
address set out below, or at such other address as may, from time to time;
be designated in writing by the parties, irith first class postage fully
prepaid thereon.
TO DEPARTMENT: Department of Boating and Waterways
1629 - "S" Street
Sacramento, California 95814
TO : City of San Rafael
Post Office Box 60
San Rafael, California 94902
IN WITNESS WHEREOF, the parties hereto have executed this agreement
as of the date first hereinabove appearing.
STATE OF CALIFORNIA
Department of Boating and Watenaays
APPROVED:
DEPARTMENT OF GENERAL SERVICES
City o San Rafael
t-t
J
By 4'Z1
Acting May
ATTES
City Clerk
DEPARTDIENT OF BOATING AND WATERWAYS
c NTRACT # 9-33-61-13 with CITY OF SAN RAAAEL
A PROPRIATION DATA CH 259/79, Item 222 F.Y. 1979-80
FUND HARBORS AND WATERCRAFT REVOLVING FUND
Line Item Allotment Operation 8 maintenance Agreement - F.F.
Amount of this estimate $ -0-
Unencumbered Balance after posting this estimate $
certify upon my own personal knowledge that bud ed fundi are availab
r the period and purpose of the expenditure s ted bo�
10/19/79
Date
Accounting Officer
45M
NOTICES
AssACFr`61;NT N--CiacM_%K No. A-102
vides the Federal sponsoring agency with
ices Administration. Appropriate dlspo-
sition instructioiis will be Issued to the
PROPeBTT wAigAGzwrxT sTANDARDs
adequate authority.
3. Real property. Each Federal grant-
recipient alter completion of the Federal
1. This Attachment prescribes uniform
or agency shall prescribe requirements
agency review.
5. Exempt property. When statutory
staadards governing the utilization.and
disposition. of property furnished by the
for grbntees concerning the use and dis-
position of real property funded partly
authority exist$ title to nonexpendable
Federal Government or acquired In
or wholly by the Federal Government.
personal property acquired with project
funds shall be vetted in the recipient
whole or in'part with Federal funds or
whose cost was charged to a project sup-
Unless otherwise provided by statute,
such requirements, as a minimum, shall
upon acquisition unless it 1s determined
ported by a Federal grant. Federal
contain the following:
that to do so is not in the furtherance
of the objectives of the Federal sponsor -
grantor agencies shall require grantees
(a) Title to real property shall vest In
Ing agency. When title is vestad La t..e
to observe these standards under grants
the recipient subject to the condition
recipient the recipient shall have ro
from the Federal Government and shall
that the grantee shall use the real prop-
other obligation or accountabill to the
not impose additional requirements un-
erty for the authorized purpose of the
Federal Government for its use or d_'.., -
less specifically required by Federal law.
original grant as long as needed.
position except as provided In 6a below.
The grantees shall be authorized to use
(b) The grantee shall obtain approval
6. Other nonexpendable properti.
12heir own property management stand-
by the grantor agency for the use of the
When other nonexpendable tangible
ards and procedures as long as the pro-
real property in other projects when
property Is acquired by a grantee with
visions of this Attachment are included.
the grantee determines that the property
project funds title shall not be tz: en
2. The following definitions apply for
is no longer needed for the original grant
by the Federal Government but shall
the purpose of this Attachment:
purposes. Use in other projects shall be
vest in the grantee subject to the follow -
(a) Real property. Real property
limited to those under other Federal
Ing conditions:
means land. including land improve-
grant programs, or programs that have
(a) Right to transfer title. For items
ments, structures- and appurtenances
purposes consistent with those author-
of nonexpendable personal property
thereto, excluding movable machinery
ized for support by the grantor.
having a unit acquisition cost of $1,000
and equipment.
(c) When the real property is no long-
or more, the Federal -agency may reserve
(b) Personal property. Personal prop-
er needed as provided in a and b above,
the right to transfer the Liffe to the
erty of any kind except real property. It
the grantee shall request disposition In-
Federal Government or to a third part
may be tangible -having physical exist-
structions from the Federal agency or its
named by the Federal Government when
ante, or intangible --having no physical
successor Federal agency. The Federal
igiule
such third party Is otherwise elerva-
existence, such as patents. inventions,
agency shall observe .the following rules
and copyrights.
in the disposition instructions:
tion shall bbeegsubject to the following
(c) Nonexpendable personal property.
• (1) The grantee may be permitted tp
standards:
Nonexpendable personal property means
retain title after it compensates the Fed-
(1) The property shall be apPropri-
tangible personal property having a use-
eral Government in an amqunt computed
ately identified in the grant or other-
ful life of more than one year and an
by applying the Federal percentage of
wise made known to the grantee in
acquisition cost of $300 or more per unit.
participation in the cast of the original
writing.
A grantee may use its own definition of
project to the fair market value of the
(2) The Federiii-agency shall issue
nonexpendable personal property pro-
Property,
disposition instructions within 120 cal-
vided that such definition would at least
- (2) The grantee may be directed to
endar days after the end of the Federal
include all tangible personal property 84
sell the property under *uidelines pro-
support of the project for which It was
dedr:ed above.
vided by the Federal agency and pay the
acquired. If the Federal agency falls to
(d) Expendable personal property. Ex-
Federal Government an amount com-
issue disposition instructions within the
pendable personal property refers to all
puted by applying ther Federal percent-
120 calendar -day period, the grantee
tangible personal property, other than
age of participation in the cost of the
shall apply the standards of subpara-
nonexpendable property.
original project to the proceeds from sale
graph 6(b) and 6(c) as appropriate.
(e) Excess property. Excess property
(after deducting actual and reasonable
(3) When the Federal agency exer-
means property under the control of any
selling and fix -up expenses, if any, from
cases its right to take title. the personal
Feder.1 agency which, as determined by
the sales proceeds). When the grantee Is
property shall be subject to the provi-
the head thereof, is no longer required
authorized or required to sell the prop-
sions for federally -owned nonexpendabie
for its needs or discharge of its responsi-
erty. Proper sales procedures shall be es-
property discussed in paragraph 4.
bllitlesy
tablished that provide for competition to
above.
(.) Acquisition cost of purchased non-
the extent practicable and resWt in the
(4) When title is transferred either
expendable personal property. Acqui-
.highest possible return.
to the Federal Government or to a third
sitlon cost of an item of purchased nen-
(3) The grantee may be directed to
party, the pra inions of S'a,bPQr--9:..::
expendable personal property means the
transfer title to the property to the Fed-
6(c) (2) (b) should' be followed.
net invoice unit price of the property in-
eral Government provided that in such
(b) Use of other tangible nonespend-
cluding the cost of modifications` attach-
cases the grantee shall be entitled to
able property for which the grantee has
ments, accessories, or auxiliary apparn-
compensation computed' by applying the
title.
tun necessary to make the property usa-
grantees percentage of participation in
(1) The grantee shall use the proper-
ble for the purpose for which it was
the cost of the program or project to the
ty in the project or program for which
acquired. Other charges such as the cost
current fair market value of the prop-
• it was acquired as long as needed,
.of installation, transportation, taxes,
erty-
whether or not the project or program
duty, or protective in -transit insurance,
4. Pederally owned nonexpendable
continues to be supported by Federal
shall be included or excluded from the
personal property. Title to federally
funds. When no longer needed for the
unit acquisition cost.in accordance with
owned property remains vested in the
original project or program, the grantee
the grantee's regular accounting prat-
Federal Government. Recipients shall
shall use the property In connection with
tices
submit annually an inventory listing of
Its other federally sponsored activities,
(g) Exempt property. Exempt property
federally owned property in their custody
in the following order of .priority:
means tangible personal property ac-
to the Federal agency. Upon completion
(a) Activities sponsored by the same
quired in whole or in part with Federal
of the agreement or when the property
Federal agency.
funds, and title to which is vested in the
is no longer needed; the grantee shall (b) Activities sponsored by other Fed -
recipient without further obligation to
report the property to the Federal agency
eral agencies.
the Federal Government except as pro-
for further agency utilization.
(2) Shared use. During the time that
vided in subparagraph 6a below. Such
If the Federal agency has no further
nonexpendable personal property is held
unconditional vesting of title will be pur-
need for the property, it shall be declared
for use on the project or program for
suant W any Federal legislation that pro-
excess and reported to the General Serv-
which it was acquired, the grantee shall
FEDERAL REGISTER, VOL 42, NO. 116—MONDAY, SEPTEMBER 12, 1177
make it available for use on other prol-
ects or programs If such other use will
not interfere with the work on the prot-
ect or program for which the property
was originally acquired. First preference`
for such other use shall be given to other
projects or programs sponsored by the.
Federal agency that financed the prop-
erty; second preference shall be given
to projects Or programs sponosred by
other Federal agencies. If the property
Is' owned by the Federal Government,
use on. other'activities not sponsored by
the Federal Government shall be per-
missible if authorized by the Federal
agency. User charges should be con-
sidered If appropriate.
- (c) Disposition of other nonexpend-
able property. When the grantee- no
longer needs the property as provided
in 6h above, the property may be used
for other activities in accordance with
the following standards:
(1)" Nonexpesidaule property with a
unit acquisition cost of less than $1,000.
Thr, grantee may use the property for
other activities without reimbursement
to the Federal Government or sell the
property and retain the proceeds.
(2) Nonexpendable personal -property
with a unit acquisition cast of $1,000 or
more. 'The grantee may retain the prop-
erty far other uses provided that com-
pensation Is madd to the original Federal
agency or Its successor. The amount of
compensation shall be computed by ap-
plyina-the percentage of Federal par-
ticipation in the cost of the original
Project or program to .the current fair
market value of the property. If the
grantee has no need for the property and
the property has further use value, the
grantee shall request disposition irstruc-
tlons from the original grantor agency.
The Federal agency shall determine
whether the property can be used to
meet the agency's requirements. If no
requirement exists w_thin that agency,
the availability of the property shall
be reported. in accordance with the
guidelines of the Federal Property
Management Regulations (FPMR), to
the General Services Administration by
the Federal agency to determine whether
a requirement for the property exists in
other Federal agencies. The Federal
agency shall Issue instructions to the
grantee• no later than 120 days after
the grantee request and the following
procedures shall govern:
(a) If so Instructed- or if disposition
Instructions are not Issued within 120
calendar days after the grantee's re-
quest, the -grantee shall sell the prop-
erty and reimburse the Federal agency
an amount computed by applying to the
sales proceeds the percentage of Federal
participation In the cost of the original
project or program. However, . the
grantee shall be permitted to deduct
and retain from the Federal share $100
or ten percent of the proceeds, which-
ever is greater,' for the gruitee's sell-
ing and handling expenses.
'(b) If the grantee is Instructed to
ship the property elsewhere the grantee
shall be reimbursed by the benefiting
Federal agency with an amount which
NOTICES
Is computed by applying the" percentage
of the grantee participation in the cost
of the original grant project or program
to the current fair market value of the
property, -plus any reasonable shipping
or. interim storage costs Incurred.
•'(c) If the grantee is' instructed to
otherwise dispose of the property, the
grantee shall be reimbursed by the Fed-
eral agency for such cosh incurred in
its disposition.
(d) Property rcanagem- zitt standards
for nonerpendable property. The grant-
ee's property management standards for
nonexpendable personal property shall
Include the fi .lowing procedural require-
ments:
(1) Property records shall be main-
tained accurately and shall include:
(a) A description of the property.
(b) Manufacturer's serial number,
model number, Federal stock numoer,
national stock number, or other IdentiS-
cation number.
(c) Source of the. property Including
grant or other agreement number.
(d) Whether title vests in the grantee
or the Federal Government. .
(e) Acquisition date (or date received,
if the property was furnished by the
Federal Government) and cost.
(f) Percentage (at the end of the
budget year) of Federal participation in
the cost of the project or program for
-which the property was acquired. (Not
applicable to property furnished by the
Federal Government.)
(g) Location, use, and condition of
the property and the date the informa-
tion was reported.
(h) Unit acquisition cost.
(1) Ultimate disposition data, includ-
ing date of disposal and sales price or
the method used to determine current
fair market value where a grantee com-
pensates the Federal agency for its share.
(2) Property owned -by the Federal
Government must be marked to indi-
cate Federal ownership.
(3) A physical inventory of property
shall be taken and the results reconciled
with the property records at least once
every two years. Any differences between
quantities determined by the physical
inspection and those shown in the ac-
counting records shall be investigated to
determine tfie causes of the difference.
The grantee shall, in connection with the
Inventory, verify the existence, current
utilization, and continued need for the
property.
(4) A control system shall be in effect
to insure adequate safeguards to prevent
lass, damage, or theft of the property.
Any loss, damage, or theft of nonex-
pendable property shall be investigated
and fully documented; if the property
was owned by the Federal Government,
the grantee shall promptly notify the
Federal agency.
(5) Adequate maintenance procedures
shall be Implemented to keep the prop-
erty in good condition. - .
(6) Where the grantee Is authorized
or required to sell the property, proper
sales procedures shall be established
which would provide for competition to
M -M
the extent p:actIr-abie and result in the
highest possible return.
7. Ezpendahlz personal property. Title
to expendable personal preparty sha'
vest in the grantee upon acquisit Ma If
there is a residual inventory of such
Property excm� $1,000 in total aggr'e-
gato fair market value, upon termina-
tion or completion of the giant and if
the property is not needed for any other
federally sponsored project or program,
the grantee shall retain the property for
use on nonfederally sponsored activities,
or sell it, but must in either case, com-
pensnte the Federal Government for its
share. The amount of compensation shall
be computed fn the same manner as
noneependsble personal property.
8. Intangit)le property.
(a) Inventions and patent. If any
program produces patentable items,
patent rights, processes, or inventions,
in rhe coure of .vork sponsored by the
Federal Government, such fact shall be
promptly and fully reported to the Fed-
eral agency. Unlessthere is a prior agree-
ment
greement between the grantee and the Fed-
eral agency on disposition of such items,
the Federal agency shall determine
whether protection on the invention or
disccvery shall be sought. The Federal
agency will also determine how the rights
in the invention or discovery, including
rights under any patent Issued thereon.
shall be allocated and administrated in
order to protect the public mterest con-
sistent with "Governrcant Patent Policy"
(President's Memorandum for Heads of
Executive Departments and Agencies,
August 23. 1971, and statement of Gov-
errunent Patent Policy as printed in 36
FR 16889) .
(b) Copyrig)rts- Except a:> otherwise
provided in the terms =d conditions of
Lhe agreement the aut':or or the grantee
organization is free to copyright any
books, publications, or other copyright-
able materials developed in the course of
or under a Federal agreement, but the
Federal agency shall reserve a royalty -
free nonexclusive and irrevocable right
to reproduce, publish, or otherwise use,
and to authorize others to use, the work
for Government purposes.
9. F,tcess personal property. When
title to excess property is vested in grant-
ees such property shall be accounted for
,ind disposed of in accordance with para-
e=Pbs 6(c) and 6(d) of this attenhm�_nf
ATrACILbMNT O—Crnc &R No. A-102
PROCUREMENT STANDARDS
1. This Attachment provides standards
for use by grantees in establishing proce-
dures for the procurement of supplies,
equipment, constrcaction, and other serv-
ices with Federal grant funds. These
standards are.furnished to insure that
such materials and services we obtained
in an effective manner and in compliance
with the provisions of applicable Federal
law and Executive orders. No additional
requirement-. shall be impc4ed by the
Fedeml agencies upon the grantees un-
less specifically required by Federal law
or Executive orders.
2. The Standards contained in this At-
tachment do not relieve the grantee of
the contractual responsibilities arising
FEDERAL REGISTER, VOL 42, NO. 176 --MONDAY, SEPTEMBER 12, 1977
590
uwder its contracts. The grantee Is the
responsible authority, without recourse
the grantor agency regarding the set-
tlement and satisfaction of all contrac-
t- and administrative issues arising out
of and
entered into, In support
of a grant. This includes but Is not lim-
ited to: disputes, claims, protests o1
award. source evaluation or other mat-
ters of a contractual nature. Matters
concerning violation of law are to be re-
ferred to such local. State, or Federal
authority as�may have proper jurisdic-
tion.
3. Grantees — use their own pro-
curement regulations which reflect ap-
plicable State and local law, rules and
regulations provided that procurements
made with Federal grant funds adhere
to the standards set forth as follows:
(a) The grantee shall maintain a code
or standards of conduct which shall
govern the performance of its ofXIcers,
employees, or agents in contracting with
and expending Federal grant funds.
drantee's officers, employees. or agents,
shall neither solicit nor accept gratui-
ties, favors, or anything of monetary
value from contractors or potential con-
tractors. To the extent permissible by
State or local law, rules or regulations,
such standards shall provide for penal-
ties, sanctions, or other disciplinary ac-
tions to be applied for violations of such
standards by either the grantee officers,
employees, or agents, or by contractors
or. their agent&
(b) All procurement transactions re-•
gardless of whether negotiated or adver-
t1sed and without regard to.dollar value
shall be conducted In a manner so as to
provide maximum open and free compe-
tition. The grantee should be alert to or-
ganizational conflicts of interest or non-
competitive practices among contractors
which may restrict or eliminate compe-
tition of otherwise restrain trade.
(c) The grantee shall establish pro-
curement procedures which provide for,
as a minimum, the following procedural
requirements:
(1) Proposed procurement action$
shall he reviewed by grantee officials to
avoid purchasing unnecessary or dupli-
cative Items. Where appropriate, an
analysis shall be made of lease and pur-
r_hase alternatives to determine which
would be tits mmt ercnomical, practical
procurement.
(2) Invitations for bids or requests for
proposals shall be based upon a clear
and accurate description of the techni-
cal requirements for the material, prod-
uct, or service to be procured: Such de-
scription shall not. in competitive pro-
curements, contain features which un-
duly restrict competition. "Brand name
or equal" description may be used as a
means to define the performance or other
salient requirements of a procurement,
and when so used the specific features of
the named brand which trust be met by
offerors should be clearly specified.
(3) Positive efforts shall be made by
the grantees to utilize small business and
minority-owned business sources of sup-
plies and services. Such efforts should al -
NOTICES
low these sources the maximum fertzible
opportunity to compete for contnu:ts to
be performed utilizing Federal grant
funds.
(4) The type of procuring instruments
used (i.e., fixed price contracts, cost re-
imbursable contracts, purchase orders,
incentive contracts, etc.), shall be ap-
propriate for the particular procurement
and' for promoting the best interest o1
the grant program involved. The "cost-
plus -a -percentage -of -cost" method of
contracting shall not be used.
(5) Formal advertising, with adequate
purchase description, sealed bids, and
public openings shall be the required
method- of procurement unless negotia-
tion pursuant to paragraph (6) below Is
necessary to accomplish sound procure-
ment. However, procurements of $10,000
or less n --ed not be so advertised unless
otherwise required by State or local law
or regulations. Where such advertised
bids are obtained the awards shall be
made to the responsible bidder whose bid
Is responsive to the invitation and Is most
advantageous to the grantee, price and
other factors considered. (Factors such
as discounts, transportation costs, taxes
may be considered in determining the
lowest bid.) Invitations for bids shall
clearly set forth all requirements which,
the bidder must fulfill in order for his
bid to be evaluated by the grantee. Any
or all bids may be rejected when it is in
the grantee's interest to do so, and such
rejections are In accordance with appli-
cable State and local law, rules, and
regulations.
(6) Procurements may be negotiated
If it is impracticable and unfeasible to _
use- formal advertising.. Generally, pro-
curements may be negotiated by the
granEee. if:
(a) The public exigency will not per-
mit the delay Incident to advertising;
(b) The material or service to be pro-
cured Is available from only one person
or firm: (All contemplated sole source
procurements where the aggregate ex-
penditure Is expected to exceed $5,000
shall be referred to the grantor agency
for prior approval.)
(c) The aggregate amount involved
does not exceed $10,000;
(d) The contract is for personal or
professional services, or for any service
to be rendered by a. university, callege, or
other educational institutions;
(e) The material & services are to be
procured and used outside the limits of
the United States and its possessions;
(f) No acceptable bids have been re-
ceived after formal advertising;
(g) The purchases are fok- highly per-
ishable materials or medical supplies, for
material or services where the prices are
established by law, for technical items
or equipment requiring standardization
and interchangeability of parts with ex-
isting, for experimental, developmental
or research work, for supplies purchased
for authorized resale, and for technical
or specialized supplies requiring substan-
tial initial investment for. manufacture;
(h) Otherwise authorized by law, rules,
or regulations.
Notwithstanding the existence of circum-
stances j 1sttfy?ng negotiation. competi-
tion shall be obtained to the maximum
exteut prs.cticable.
(7) Contract.: shall be made only with
responsible contractors who passe.,s the
potential ability to perform successfully
under the terms and conditions of a pro-
posed procurement. Consideration shall
be given to such matters as contractor
integrity, record of past performance,
fiiianCial and technical resources, or ac-
cessibility to other necessary resources..
(8) Procurement records or files for
purchases in amounts in excess of S10.-
000 shall provide at least the following
pertinent information: justification for
the use of negotiation In lieu of advertis-
Ing, contractor selection, and the basis
for the cost or price negotiaped.
(9) A system for contract administra-
tion shall be maintained to assure con-
tractor conformance with terms, condi-
tions, and specifications of the contract
or order, and to assure adequate and
timely followup of all purchases.
4. The grantee shall include, In addi-
tion to provi3lons to define a sound and
complete agreement, the following pro-
visions In all contracts and subgrants:
(a) Contracts shall contain such con-
tractual provisions or conditions which
will allow for administrative, contractual.,
or legal n.medies in instances where con-
tractors violate or brach contract terms,
and provide for such sanctions and
Penalties as may be appropriate.
(b) All contracts, amounts for which
are in excess of =10,000, shall contain
suitable provisions for termination by
the grantee Including the manner by
which it will be effected and the bad
for settlement. In. addition, such con-
tracts shall describe conditions under
which the contract 'may be terminated
for default as well as conditions where
the contract may be terminated because
Of circumstances beyond the control of
the contractor.
(c) All contracts awarded by grantees
and their contractors or subgrantees hav-
ing a value of more than $10,000 shall
contain a provision requiring compljance
with Esectlttve Order 11248, entitled,
"Equal Employment Opportunity," as
amended by Executive Order 11375, and
as supplemented in Department of Tabor
regulations (41 CFR Part 6a).
(d) All contracts and subgrants for
constructton or repair shall include a
provision for compliance with the Cope-
land "Anti-KIck Back" Act (18 U.S.C.
874) as supplemented in Department of
Labor Fegulatlons (29 CFR, Part 3) . This
Act provides that each contractor or
subgrantee shall be prohibited from In-
ducing, by any means. any person em-
ployed in the construction, completion.
or repair of public work, to give up amy
part of the compensation to which he
Is otherwise entitled. The grantee shall
report all suspected or reported viola-
tions to the grantor agency.
(e) When required by the Federal
grant prograrh legislation, all construc-
tion contracts awarded by grantees and
subgrantees in excess of $2.000 shall in-
clude a provision for compliance with
FEDERAL REGISTER, VOL 42, NO. 176—MONDAY, SEMEMBER 12, 1477
e Davis -Bacon Act (40 U.S.C. 276a to
g�-7) and as supplemented by Depart-
,dient of Labor regulations (29 CFR, Part
A),. Under this Act contractors shall be
r'�-quired to pay wages to laborers and
mechanics at a rate not less than the
'minimum wages specified in a wage de-
termination made by the Secretary of
Labor. In addition, contractors shall be
required to pay wages not less often
than once a week. The grantee shall
place a copy of the current prevailing
wage determination issued by the De-
partment of Labor in each solicitation
and the award of a contract shall be -
conditioned upon the acceptance of the
wage determination. The grantee shall
report all suspected or reported viola-
tions to the grantor agency.
(1) Where applicable, all contracts
awarded by grantees and subgrantees in
excess of $2.000 for construction con-
tracts and in excess of $2,500 for other
contracts which involve the employ-
ment of mechanics or laborers. shall in-
clude a provision for compliance with
sections 103 and 107 of the • Contract
Works Hours and Safety Standards Act
(40 U.S.C. 327-330) as supplemented by
Department of Labor regulations (29
CFR, Part. 5) . Under section 103 of the
Act, each contractor shall be required
NOTICES
to compute the wages of every mechanic
and laborer on the basis of a standard
work day of 8 hours and a standard work
week of 40 hours- Work in excess of the
standard workday or workweek is per-
missible provided that the worker is
compensated at a rate of not less than
153 times the basic rate of pay for all
hours worked in excess of 8 hours in any
calendar day or 40 hours In the work
week. Section 107 of the Act is applica-
ble to construction work and, provides
that no laborer or mechanic shall be
required to work in surroundings or un-
der working conditions which are un-
sanitary, hazardous, or dangerous to his
health and safety as determined under
construction, safetyf, and health stand-
ards promulgated by the Secretary of
Labor. These requirements do not apply
to the purchases of supplies or materials
or articles ordinarily available on the
open market, or contracts for transpor-
tation or transmission of intelligence.
(g) Contracts or agreements. the
principal purpose of which is to create,
develop, or improve products, processes
or methods; or for exploration Into fields
which directly concern public health.
safety, or welfare; or contracts In the
Held of science or technology in which
there has been little significant experi-
U S. GOVERNMENT PRINTING OFFICE - 1977 O - 218-151
45891
ence outside of work funded by Federal
assistance, shall contain a nutice to the
effect that matters regarding rights to
inventions, and materials generated
under the contract or agreement are sub-
ject to the regulations ks.ued by the Fed-
eral grantor agency and the grantee.
The contractor shall be advised as to
the :source of additional inf,�rmutlon re-
g:lyding these matters.
(h) Ali negotiated contrl,cta (except
those of $10,000 or Ips) awarded by
effect that the grantee, the Federal
grantees shall include a provision to the
grantor agency, the Comptroller General
of the United States, or any of their duly
withorized representatives, shall have
access to any books, doc=ents. Pa'pe'rs,
and records of the contractor which are
directly pertinent to a specific grant
progmri for the purpose of making
audit, examination, excerpts, and tran-
scriptions.
.(1) Contracts and subgnants of
amounts in excess of $100,000 shall con-
tain a provision which requires the re-
cipient to agree to comply with all ap-
plicable standards, orders, or regulations
issued pursuant to the Clean Air Act
of 1970. Violations shall be reported to.
the grantor agency and the Regional
Office of the Environmental- Protection
Agency.
[FR Doc.77-25944 Filed 9-9-77.8:46 ami