Pine Telephone Company Inc.
Dated: __________ ___, 2011
This Purchase Contract (the “Contract”) is made effective as of the _________day of March, 2011 (“Effective Date”), between PINE TELEPHONE COMPANY INC., an Oklahoma corporation (“Pine” or “Purchaser”), and ____________________, a ________ corporation (““Seller”).
WHEREAS, Pine wishes to purchase from Seller, and Seller wishes to sell to Pine the items described herein on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual representations and covenants herein, Pine and Seller agree as follows:
“Contractor” means Seller.
“NTIA Administrator” means the National Telecomunications and Information Administration (NTIA) Administrator responsible for the management of the broadband grants program created by the Recovery Act, administration of Federal agency spectrum requirements, and Internet governance and policy matters.
“Party” means Pine or Seller.
“Parties” means Pine and Seller.
“RUS Administrator” means the Rural Utilities Service (RUS) administrator responsible for the primary policy and program decisions for the agency.
“Sites” shall mean the intended locations of Pine’s cellular equipment towers in McCurtain, County, Oklahoma, USA.
“Taxes” means any and all applicable sales, excise, and use taxes imposed within the State of Oklahoma, United States of America, in accordance with present or future laws in the State of Oklahoma, United States of America, except for taxes imposed on Seller’s net income.
3.2 Taxes: The pricing in Exhibit A does not include Taxes. All applicable Taxes, if any, shall be borne by Pine and shall be paid by Pine directly to the appropriate tax authority, or if required by law to be paid by Seller to such tax authority, shall be reimbursed by Pine to Seller, unless Pine provides Seller a valid exemption certificate.
Payment terms are as shown on Exhibit A.
Except for delays caused by Pine, Seller shall deliver the items on the schedule shown on Exhibit A.
THIS CONTRACT WILL BE GOVERNED, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA WITHOUT REGARD TO ITS LAWS REGARDING CONFLICTS OF LAW. THE STATE AND FEDERAL COURTS OF THE STATE OF OKLAHOMA SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY DISPUTES, CLAIMS, OR CONTROVERSIES RELATED TO OR IN CONNECTION WITH THIS CONTRACT OR THE BREACH OR ENFORCEMENT THEREOF.
Section 10. ATTORNEYS’ FEES.
In the event of litigation, the prevailing party will be entitled to recover its expenses incurred in connection with such dispute, including reasonable attorneys’ fees.
11.1 Addresses: All notices shall be sent by confirmed delivery (including registered mail, Federal Express, UPS or similar delivery) to the addresses contained in this Contract. All acceptances, approvals, consents, notices, demands or other communications shall be deemed to have been fully given when made in writing and actually delivered:
Pine Telephone Company Inc.
210 W 2nd St
Broken Bow, OK 74728
With a copy to:
Drew D. Webb
McAfee & Taft a Professional Corporation
10th Floor, Two Leadership Square
Oklahoma City, OK 73102
At Seller’s notice address Shown in Exhibit A.
12.1 Regulatory Approval Contingency: Pine’s execution of this Contract shall create a binding contract only if the RUS Administrator and the NTIA Administrator grant written approval of the Contract within ninety (90) days after the last date of signature hereof; otherwise, the Contract shall be null, void, and of no effect, and neither Party shall be liable to the other. This Contract shall become effective on the Effective Date or on the date of the last of said Administrators’ final written approvals, whichever is later.
12.2 General Compliance with Statutes and Regulations. Seller will comply with all applicable laws, statutes, ordinances, rules or regulations pertaining to the subject matter of this Contract. Seller acknowledges that it is familiar with the Rural Electrification Act of 1936, as amended (7 U.S.C. 901-950b), the Anti-Kickback Acts, as amended (40 U.S.C. 276c; 41 U.S.C. 51 et seq.), and any rules and regulations issued pursuant thereto, and 18 U.S.C. 201, 286, 287, 641, 666, 874, 1001, 1361 and 1366, as amended. Seller understands that the obligations of the parties hereunder are subject to the applicable regulations and orders of the Governmental agencies having jurisdiction in the premises.
(a) Seller represents that to the extent required by Executive Orders 12549 (3 CFR, 1985-1988 comp., p. 189) and 12689 (3 CFR, 1989 comp., p. 235), Debarment and Suspension, and 7 CFR part 3017, it has submitted to Pine a duly executed certification in the form prescribed in 7 CFR part 3017.
(b) Seller represents that, to the extent required, it has complied with the requirements of Pub. L. 101-121, section 319, 103 Stat. 701, 750-765 (31 U.S.C. 1352), entitled “Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions” and any rules and regulations issued pursuant thereto.
12.3 Equal Employment:
(a) Seller represents that, as of the time this Contract is signed below:
(i) It has __ , does not have __, 100 or more employees, and if it has, that
(ii) it has submitted the Equal Employment Opportunity Employers Information Report EEO-1, Standard Form 100, required of employees with 100 or more employees pursuant to Executive Order 11246 and Title VII of the Civil Rights Act of 1964.
(b) Seller agrees that it will obtain, prior to the award of any subcontract for more than $10,000 hereunder to a subcontractor with 100 or more employees, a statement, signed by the proposed subcontractor, that the proposed subcontractor has filed a current report on Standard Form 100.
(c) Seller certifies that it does not maintain or provide for its employees any segregated facilities at any of its establishments and that it does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Seller certifies further that it will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Seller agrees that a breach of this certification is a violation of the Equal Opportunity Clause in this Contract. As used in this certification, the term “segregated facilities” means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, or national origin, because of habit, local custom, or otherwise. Seller agrees that (except where it has obtained identical certifications from proposed subcontractors for specific time periods) it will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity Clause, and that it will retain such certifications in its files.
(d) During the performance of this Contract:
(i) Seller will not discriminate against any employee or applicant for employment because of race, creed, color or national origin. Seller will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, or disability. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising: layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Seller agrees to pose in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(ii) Seller will, in all solicitations or advertisements for employees placed by or on behalf of Seller, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin or disability.
(iii) Seller will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representative of Seller’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(iv) Seller will comply with all provisions of Executive Order 11246, and the rules, regulations and relevant orders of the Secretary of Labor.
(v) Seller will furnish all information and reports required by Executive Order 11246, and the rules, regulations and relevant orders of the Secretary of Labor, or pursuant thereto, and will permit access to Seller’s books, records and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.
(vi) In the event of Seller’s noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations or orders, this Contract may be canceled, terminated or suspended in whole or in part and Seller may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided in the said Executive Order, or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by law.
(vii) Seller will include the provisions of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246, so that such provisions will be binding upon each subcontractor or vendor. Seller will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event Seller becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, Seller may request the United States to enter into such litigation to protect the interests of the United States.
(e) Equal Employment Opportunity Specifications.
(i) As used in these specifications:
(a) “Covered area” means the geographical area in which this Contract will be performed;
(b) “Director” means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority;
(c) “Employer identification number” means the Federal Social Security number used on the Employer’s Quarterly Federal Tax Return, United States Treasury Department Form 941; and
(d) “Minority” includes:
(1) Black or African American (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic or Latino (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race);
(3) Asian, Native Hawaiian or Other Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and
(4) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).
(ii) Whenever the Contractor, or any Subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this Contract resulted.
(iii) If the Contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the United States Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO clause, and to make a good faith effort to achieve each goal under the Plan for each trade in which it has employees. The overall good faith performance by other Contractors or Subcontractors toward a goal in an approved Plan does not excuse any covered Contractor’s or Subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.
(iv) The Contractor shall implement the specific affirmative action standards provided in paragraphs (g) (i) through (xv) of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in geographical areas where they do not have a federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from federal procurement contracting officers. The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
(v) Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.
(vi) In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the Department of Labor.
(vii) The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
(1) Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities.
(2) Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractors or its unions have employment opportunities available, and maintain a record of the organizations’ responses.
(3) Maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor, this shall be documented in the file with the reason therefore, along with whatever additional actions the Contractor may have taken.
(4) Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations.
(5) Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under (g) (ii) above.
(6) Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at lease once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.
(7) Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with onsite supervisory personnel such as superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.
(8) Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, and providing written notification to and discussing the Contractor’s EEO policy with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business.
(9) Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students, and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.
(10) Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority Contractor’s work force.
(11) Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
(12) Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.
(13) Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
(14) Document and maintain a record of all solicitations of offers or subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
(15) Conduct a review, at least annually of all supervisors’ adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.
(f) Contractors are encouraged to participate in voluntary associations that assist in fulfilling one or more of their affirmative action obligations under (vii) (1) through (15). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the Contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under (vii) (1) through (15) of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.
(g) A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, male and female, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of Executive Order 11246 if a particular group is employed in a substantially disparate manner (for example, even though the Contractor may be in violation of Executive Order 11246 if a specific minority group of women is underutilized).
(h) The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, national origin or disability.
(i) The Contractor shall not enter any Subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.
(j) The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.
(k) The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph (vii) of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of Executive Order 11246, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.
(l) The Contractor shall designate a responsible official monitor for all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation, if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
(m) Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
(n) The provisions of sections (b) and (c) of Subsection 12.3 are applicable to the extent required by law. In determining whether these Sections are applicable, reference should be made to the Department of Labor Office of Federal Contract Compliance Programs regulations (41 CFR part 60).
12.4 Audit Access. Pine, the Department of Commerce, the Comptroller General of the US, or any of their duly authorized representatives shall have access to books, documents, papers and records of Seller applicable to the Project for the purpose of making audits, examinations, excerpts and transcriptions.
12.5 Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327, 333). Any employment of mechanics or laborers by Seller will include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327, 333), as supplemented by Department of Labor regulations (29 CFR Part5).
12.6 Clean Air Act (42 U.S.C. § 7401 et seq.) and the Federal Water Pollution Act (33 U.S.C. §1251 et seq.). Seller will abide by the Clean Air Act and the Federal Water Pollution Act.
12.7 Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352). Seller will file a Byrd Anti-Lobbying Amendment certification certifying that Seller will not use, 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, office 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.
12.8 Copeland “Anti-Kickback” Act (18 U.S.C. § 874 and 40 U.S.C. § 276c). Seller will comply with the Copeland “Anti-Kickback” Act.
12.9 Davis-Bacon Act, as amended (40 U.S.C. § 276a to 276a-7). Seller will comply with the Davis-Bacon Act, including, specifically, payment of prevailing wage, weekly payroll distribution and timely and accurately providing records to Pine to demonstrate compliance.
12.10 Debarment and suspension (E.O.s 12549 and 12689). Seller warrants and represents that it is not listed in the General Services Administration’s List of Parties Excluded from Federal Procurement or Non-procurement Programs in accordance with Executive Orders 125449 and 12689.
12.11 Surviving Terms: Except as otherwise provided by law, the Parties’ rights and obligations which by their nature would continue beyond the termination or expiration of this Contract shall survive termination for any reason or expiration of this Contract.
12.12 Entire Agreement: This Contract contains the entire agreement of the Parties concerning the sale of the Items, and it supersedes and replaces all prior communications or representations or warranties between them, including but not limited to, the offer and/or other circumstances including the course of negotiations. There are no representations, undertakings or contracts of any kind between the Parties hereto in respect of the subject matter hereof save and except those contained herein. Any and all terms, conditions or other provisions not contained herein but appearing in any purchase order, acceptance, or similar document shall be null and void.
12.13 Time of the Essence. The time of performance is of the essence of this Contract.
12.14 Waiver; Release: No delay on the part of either Party in exercising any of its rights hereunder or failure to exercise the same, nor the acquiescence or knowledge thereto shall operate as a release or waiver except in the specific instance for which is expressly given. None of the terms, conditions or provisions of the Contract shall be held to have been changed, waived, varied, modified or altered by any act or knowledge of either Party, their respective agents, servants or employees.
12.15 Unenforceability: If any provision of this Contract is declared or held by any judicial or other competent authority to be void or otherwise unenforceable, the remaining provisions of this Contract shall remain in full force and effect. In such event, the Parties shall negotiate in good faith and mutually enter into a written agreement to replace the invalid or unenforceable term(s), provision(s) or obligation(s) with a like or similar provision consistent with the original intent to the extent lawfully possible.
12.16 Modifications: Any modification or variation of the terms and conditions of this Contract shall be valid only when agreed to in writing by both Parties.
PINE: PINE TELEPHONE COMPANY, INC.
Exhibit A to Purchase Contract