01 NSCF CM-GC Construction Subcontract V1.pdf

Subcontract No. XXXXXX Fermi National Accelerator Laboratory LBNF/DUNE-US NSCF Construction Page 1 of 44 Batavia, Illinois

CONSTRUCTION MANAGER/GENERAL

CONTRACTOR AGREEMENT WITH

GUARANTEED MAXIMUM PRICE

(CONSTRUCTION SUBCONTRACT

NO. ________)

Fermi Forward Discovery Group, LLC, as Manager and Operator of the Fermi National Accelerator Laboratory Kirk and Pine Street, MS 123 Batavia, IL 60510

Construction Manager/General Contractor:

FFDG Procurement Specialist:

Name: ____________________

Title: LBNF Procurement Specialist

Phone: _______________

Email: ______________

INTRODUCTION

This is a Construction Manager/General Contractor Agreement with Guaranteed Maximum Price (“Subcontract”) for Construction Services for the Long-Baseline Neutrino Facility (“LBNF”) Near Site Conventional Facilities (“NSCF”) Beamline Complex, Near Detector Complex and related facilities at the Fermi National Accelerator Laboratory (“Fermilab”), as further described herein.

This Subcontract is between Fermi Forward Discovery Group, LLC (“FFDG”) and the party identified above as the Construction Manager/General Contractor (“CM/GC” herein).

This Subcontract is issued under Prime Contract No. 89243024CSC000002 between FFDG and the U.S.

Department of Energy (“DOE”) for the management and operation of Fermilab and the performance of research and related work.

AGREEMENT

The parties agree to perform their respective obligations in accordance with the terms, conditions, and provisions of the attached SCHEDULE OF ARTICLES and the documents referenced or incorporated therein (Contract Documents), including which together with this Signature Page shall collectively constitute the entire agreement and shall supersede all prior negotiations, representations, or agreements, whether verbal or written.

[Insert CM/GC] Fermi Forward Discovery Group, LLC By: By:

Name: Name:

Title: Title:

Date: Date:

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Table of Contents

ARTICLE 1. SCOPE OF WORK

A. DESCRIPTION

B. PROJECT STRUCTURE

1. Priorities

2. Two Phases for Each Priority

3. FFDG’s Election Not to Proceed

ARTICLE 2. TERM AND CONSTRUCTION SCHEDULE

A. TERM

B. SCHEDULE

C. DELAYS AND SUSPENSIONS

ARTICLE 3. PRICE AND PAYMENT PROVISIONS

A. PRECONSTRUCTION SERVICES FEE, FIRM-FIXED PRICE

B. PRICE OF AWARDED WORK PACKAGE FOR AWARDED INITIAL PRIORITIES

C. CM/GC’s FEE

D. GUARANTEED MAXIMUM PRICE TERMS

1. Aggregate GMP

2. Priority GMPs

3. Adjustments to Priority GMPs

4. Adjustment to Aggregate GMP

E. Definitization of Work Packages

1. Reconciliation Process

2. Subcontract Modification

F. Shared Savings Program

1. Purpose and Intent

2. Applicable Definitions

3. Preconstruction Work Excluded

4. Accounting

5. Calculation of Shared Savings

6. Cost Overrun Risk and Responsibility

7. Value Engineering

8. Monthly Reporting

9. Final Savings Reconciliation

ARTICLE 4. THE EPA PROGRAM, ECONOMIC PRICE ADJUSTMENTS

A. APPLICATION TO PRIORITY GMP

B. APPLICATION TO WORK PACKAGES

C. PROCESS FOR EPA ADJUSTMENTS

1. Index Reference

2. Base Index and EPA Base Period

3. Eligible and Excluded Costs

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4. Base Price

5. Timing of Adjustments and Multiple Buyout Packages

6. Methodology for Calculating

7. Supporting Documentation

8. Limitations

ARTICLE 5. AWARD OF OPTIONS

A. AWARD OF INITIAL PRIORITIES

B. OPTIONAL PRIORITIES

C. NOTICE TO PROCEED REQUIRED

D. RECONCILIATION AGAINST FIXED LIMIT OF CONSTRUCTION COST / TOTAL PROJECT COST 21

E. CONDITIONS OF NOTICE TO PROCEED; REQUIRED DOCUMENTATION

F. OPEN BOOK ACCOUNTING; RECORDS; AUDIT

ARTICLE 6. AVAILABILITY AND OBLIGATION OF FUNDS

ARTICLE 7. PAYMENTS

ARTICLE 8. SUBCONTRACTING WITH SUB-TIER CONTRACTORS

A. COMPETITIVE BIDDING OF TRADE PACKAGES

B. COMPETITIVE BIDDING OF WORK PACKAGES

C. SELF-PERFORMED WORK

D. SUBCONTRACT FLOW-DOWN

E. SMALL BUSINESS AND SOCIOECONOMIC SUBCONTRACTING PLAN

F. LONG-LEAD AND SOLE-SOURCE PROCUREMENT

G. REQUIRED SUBCONTRACTING PLAN

ARTICLE 9. SUBCONTRACT ADMINISTRATION

A. FFDG PROCUREMENT SPECIALIST

B. FFDG TECHNICAL REPRESENTATIVE

C. CM/GC REPRESENTATIVE

D. FFDG CONSTRUCTION COORDINATOR

ARTICLE 10. SAFETY-RELATED REQUIREMENTS

A. SUBMISSIONS

B. GENERAL

ARTICLE 11. CHANGES TO THE WORK

ARTICLE 12. USE OF THE SITE

A. SITE AND EXISTING CONDITIONS

B. GOVERNMENT-FURNISHED PROPERTY AND INFORMATION

C. DIFFERING SITE CONDITIONS

D. INTERFACE WITH ADJACENT CONTRACTORS AND ONGOING OPERATIONS

E. LICENSES AND PERMITS

ARTICLE 13. COMPLETION OF THE WORK

A. SUBSTANTIAL COMPLETION

B. AUTHORIZATION FOR USE AND POSSESSION (AUP)

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C. FINAL COMPLETION

ARTICLE 14. WAIVER OF CONSEQUENTIAL DAMAGES

ARTICLE 15. INSURANCE

A. INSURANCE REQUIREMENTS FOR THIS SUBCONTRACT

B. COVERAGE REQUIREMENTS

C. EVIDENCE OF INSURANCE

D. SUB-TIER CONTRACTOR INSURANCE

ARTICLE 16. VALUE ENGINEERING

A. GENERAL

B. DEFINITIONS

C. VECP PREPARATION

D. SUBMISSION

E. FFDG ACTION

F. SHARING

G. COLLATERAL SAVINGS

H. SUBCONTRACTS

I. DATA

ARTICLE 17. ASSIGNMENT OF KEY PERSONNEL

ARTICLE 18. RECORDS RETENTION AND AUDIT

A. PROJECT RECORDS

B. GOVERNMENT ACCESS

C. RETENTION PERIOD

D. ELECTRONIC RECORDS

ARTICLE 19. INCORPORATED DOCUMENTS

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SCHEDULE OF ARTICLES

ARTICLE 1. SCOPE OF WORK

A. DESCRIPTION

LBNF/DUNE-US is a U.S. Department of Energy project that is constructing world-class facilities to host the Deep Underground Neutrino Experiment. This Subcontract is for the construction of the conventional facilities portion of the LBNF facility located at Fermilab, which is a part of LBNF/DUNE-US and includes the above- and below-ground enclosures, service buildings, the decay region, and associated shielding, together with all related site work, utilities, and appurtenances for the primary and neutrino beamline civil/conventional facilities, target complex and absorber complex structures, associated shielding and utility infrastructure, and the Near Detector surface and underground facilities, together with all related site work, utilities, and appurtenances (the “Project”), as more fully described in ARTICLE 3 – PRICE AND PAYMENT PROVISIONS hereof. Funding for the work of this Subcontract is subject to appropriations by Congress.

Accordingly, the work of this Subcontract is divided into nine defined elements (each a “Priority, and one or more, “Priorities”). Installation of the primary and neutrino beamline technical systems and the near detectors is not part of the Project. The Subcontract award includes award of the Initial Priorities as more fully described in ARTICLE 5 – AWARD OF OPTIONS. FFDG may, in its sole discretion, award one or more remaining Priorities (each an “Optional Priority”) within the term of this Subcontract. Each Priority is subject to availability of funding.

B. PROJECT STRUCTURE

1. Priorities.

The scope of work is divided into Priorities as set forth in Exhibit A. The Subcontract includes the award of the Initial Priorities identified in ARTICLE 5., Section A. FFDG retains options to award any of the remaining Priorities (the “Optional Priorities”) in accordance with the provisions of ARTICLE 5. – AWARD OF OPTIONS below. This Subcontract establishes:

a) a guaranteed maximum price for the complete scope of work for all Initial Priorities (which may be increased from time to time to account for additional Optional Priorities for which an award has been made hereunder) (collectively, the “Aggregate GMP”);

b) a guaranteed maximum prices for each of the Optional Priorities (each a “Priority GMP”);

c) a separately stated firm-fixed price for the Preconstruction Services (“Preconstruction Phase Fee”) for each Priority, which shall be included in, and form a part of, the Priority GMP for such Priority;

and

d) the rate for Overhead and Profit to be applied to Change Orders and when converting GMPs to fixed prices.

The Aggregate GMP and each Priority GMP may only be modified as more fully described in ARTICLE 3., Section D.3. and ARTICLE 3., Section D.4. memorialized by Subcontract Modifications.

2. Two Phases for Each Priority For each awarded Priority, the Work will be carried out in two principal phases, a Preconstruction Phase and a Construction Phase. The phases are intended as pricing and authorization structures and are not intended to be strictly sequential: the Preconstruction Phase and authorized construction work included in Work Packages with respect to any Priority may proceed concurrently, and the CM/GC’s commencement or performance of one or more Work Packages shall not conclude, suspend, or otherwise modify the Preconstruction Phase services required to support the associated Priority, or the Firm-Fixed-Price compensation for Preconstruction Phase services under ARTICLE 3. Section A.

a) Preconstruction Phase During the Preconstruction Phase, the CM/GC shall provide the services described in Exhibit C hereto in relation to any Awarded Priorities for the Preconstruction Phase Fee described in ARTICLE 3., Section A. After award of an Optional Priority and upon issuance of a Preconstruction NTP, CM/GC shall promptly start the Preconstruction Phase.

(1) The Parties acknowledge that, because the Design Documents are complete (100% design), Preconstruction Phase services are directed to construction management, including

LBNF/DUNE-US NSCF Construction Page 6 of 44 Batavia, Illinois construction planning, procurement, and GMP development as further described in Exhibit C, rather than to design-phase assistance. Nevertheless, Preconstruction Phase services include constructability review, value engineering, and coordination with FFDG’s architect/engineer of record.

(2) After award of an Optional Priority and as part of the Preconstruction Services associated with the Optional Priority, the CM/GC shall develop and present to FFDG a proposal for a fixed price for the construction work associated with the Optional Priority (“FP Proposal”). In no event shall the FP Proposals exceed the Priority GMP as modified in accordance with ARTICLE 3., Section D.3.

b) Construction Phase The construction work for each Optional Priority may be organized into discrete trade or bid packages, known as Work Packages. A fixed price for each Work Package will be established through a Subcontract Modification prior to the start of the Construction Phase associated with such Work Package in accordance with the procedures in ARTICLE 3., Section E.2. below. CM/GC shall not commence the work of a Work Package until a fixed price is established for the Work Package and FFDG issues a Construction NTP for the Work Package.

3. FFDG’s Election Not to Proceed FFDG may elect not to issue a Construction NTP for any Priority or Work Package for any reason, including non-appropriation of funds under ARTICLE 6. – AVAILABILITY AND OBLIGATION OF FUNDS. CM/GC shall have no claim for the CM/GC Fee applicable to the Construction Phase or for anticipated profit on unperformed Work. CM/GC shall be entitled to the applicable portion of the Preconstruction Phase Fee associated with any Priority that has been awarded that is due and owing at the time FFDG makes an election not to issue a Construction NTP.

[END OF ARTICLE 1.]

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ARTICLE 2. TERM AND CONSTRUCTION SCHEDULE

A. TERM

The term of the Subcontract shall commence on the date of award and shall continue until the later of the date that (1) all Priorities are completed; (2) the Options for the Optional Priorities have expired and all awarded Priorities are fully and finally complete; or (3) FFDG terminates this agreement for convenience, The term for the Initial Priority or Priorities commences upon award of the Subcontract. The term for each Optional Priority commences when the option is exercised. The Initial Priorities shall be completed on or before the dates indicated in the Construction Schedule. Optional Priorities that are subsequently awarded shall be completed within the time frame agreed upon in a Subcontract Modification incorporating the scope of work.

The work required for each awarded Priority shall begin with a Preconstruction Phase, which shall commence upon issuance of the Preconstruction NTP and shall continue until the later of (i) establishment of a fixed price for all Work Packages related to the associated Priority or (ii) FFDG’s election not to proceed under ARTICLE 1., Section B.3. The Preconstruction Phase may proceed concurrently with authorized Work Packages as provided herein. The Construction Phase for each awarded Priority may proceed concurrently with the Preconstruction Phase and shall commence only at such time as one or more Work Packages to be carried out under such Priority GMP are converted to a fixed price and a Construction NTP is issued.

B. SCHEDULE

1. It is agreed that time is of the essence for this Subcontract. Work shall be prosecuted regularly, diligently, and uninterruptedly at such rate of progress as will ensure completion thereof within the time specified. The date of beginning, rate of progress, and time for completion are reasonable and essential conditions of this Subcontract. No act of forbearance by FFDG or extension by FFDG of the time for performance of this Subcontract shall in any way constitute or operate as a waiver of or excuse for any future default by the CM/GC. No such action by FFDG shall constitute a waiver, release, or relinquishment of any of the rights or powers herein conferred upon FFDG.

2. The “Construction Schedule” reflects the time for performance of the awarded Priorities. Subject to FFDG’s approval, CM/GC shall update the Construction Schedule to include the work of any subsequently awarded Priorities.

3. The Construction Schedule shall be a detailed Critical Path Method (“CPM”) using a format satisfactory to FFDG that shall also (i) provide a graphic representation of all activities and events that will occur during performance of the Work, including submittals and accounting for lead times required for materials and equipment; (ii) identify each phase of construction and occupancy; and (iii) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Subcontract (hereinafter referred to as “Milestone Dates”). At a minimum, the following Milestones shall be accounted for in the Construction Schedule:

MILESTONE (MS) DESCRIPTION DATE

0 – Anticipated Subcontract Award 0 calendar days after award (MS 0) 1 – Notice to Proceed 60 calendar days after award (MS 0) 2 – Start of Long Shutdown - CM/GC may commence Extraction Enclosure Sitework (Other than Excavation) January 1, 2028

3 – Main Injector Handoff from Beamline - Commence Extraction Enclosure Construction No earlier than April 1, 2028

4 – Extraction Enclosure and MI-14 Service Building Substantial Completion No later than March 31, 2029 5 – Extraction Enclosure and MI-14 Service Building Final Completion No later than May 31, 2029 6 – Substantial Completion - Near Detector Complex 1,148 days after NTP (MS 1) 7 – Substantial Completion - Beamline Complex 1,264 days after NTP (MS 1) 8 – Subcontract Closeout 1,629 calendar days after NTP (MS 1)

Table 1 - Milestones

4. CM/GC shall monitor the progress of the Work for conformance with the Construction Schedule and shall promptly advise FFDG of any delays or potential delays. The Construction Schedule shall be updated to reflect actual conditions not less than monthly or as requested by FFDG. In no event shall

LBNF/DUNE-US NSCF Construction Page 8 of 44 Batavia, Illinois any Progress Report constitute an adjustment of the time for completion of the Work or compensation due to the CM/GC, unless any such adjustment is agreed to by FFDG and authorized by a Change Order or Subcontract Modification. CM/GC shall not make any changes to the critical path without FFDG approval.

5. If CM/GC falls behind to such an extent that the critical path of the Construction Schedule may be at risk as a result of unexcused delays, CM/GC shall submit a recovery plan (“Recovery Plan”) to FFDG within five (5) business days of the discovery of the delay. The Recovery Plan shall detail CM/GC’s plan to recover to the Construction Schedule. FFDG shall review and advise whether the submitted Recovery Plan is sufficient within five (5) business days of receipt. If FFDG advises CM/GC that the Recovery Plan is not sufficient, CM/GC shall have five (5) additional business days to submit an alternative Recovery Plan. If CM/GC has not corrected the schedule delay or does not have a Recovery Plan reasonably acceptable to FFDG within ten (10) days of the submission of the original Recovery Plan, FFDG shall have the right to require the CM/GC to immediately (i) increase the number of workers performing the affected Work; (ii) increase or change the amount of time or number of work shifts worked; and (iii) increase or substitute other CM/GC-provided resources, including the hiring of specialty sub-subcontractors, until the Work has sufficiently recovered the critical path in the judgment of FFDG. All additional costs incurred by CM/GC in providing acceleration to recover delays attributable to CM/GC shall be paid by CM/GC. CM/GC shall reimburse FFDG for any extra costs or expenses (including the reasonable value of any services provided by FFDG’s employees) incurred by FFDG as a result of such delay and Recovery Plan.

C. DELAYS AND SUSPENSIONS

The CM/GC agrees to bear the risk of delays, interferences, obstructions, and inefficiencies to completion of the Work, and that it has entered into this Subcontract with full knowledge of this risk. Adjustments will be made to the time allotted for Substantial Completion for delays arising from unforeseeable causes beyond the control and without the fault or negligence of the CM/GC, as described in the Default clause of the General Terms and Conditions (FAR 52.249-10) (“Force Majeure Events”), only under the following conditions:

1. Such unforeseeable cause(s) impact the critical path established by the Construction Schedule;

2. CM/GC is not responsible for a concurrent delay;

3. CM/GC has made reasonable efforts to re-sequence its Work to minimize delay; and

4. CM/GC provides notice of the delay in writing within five (5) calendar days of when CM/GC knew or should reasonably have known of the delay and includes a price proposal or identifies specifically any further information CM/GC requires in order to provide a price proposal, within fourteen (14) calendar days of the notice.

Without limiting the generality of the foregoing, CM/GC shall not be entitled to any increase in compensation as a result of any delay, interference, obstruction, or inefficiency unless it is caused by a “Compensable Delay.” A “Compensable Delay” is a delay caused by (i) acts of FFDG or any other subcontractor engaged by FFDG to perform work at the project site in the performance of its subcontract with FFDG; (ii) a Change Order required by FFDG modifying the Work where such Change Order is not the result of any default or misconduct of CM/GC or any of its sub-tier subcontractors or suppliers; (iii) FFDG’s decision to suspend the Work for longer than a period of thirty (30) consecutive calendar days, or ______ (__) calendar days in the aggregate, where such a decision is not the fault of CM/GC or any of its sub-tier subcontractors or suppliers; or (iv) the failure of FFDG or FFDG’s representative to perform any material contractual obligation in a timely manner after thirty (30) days’ written notice from CM/GC, unless such failure is due to the default or misconduct of CM/GC or any of its sub-tier subcontractors or suppliers. In the event that CM/GC is entitled to additional compensation as a result of a Compensable Delay, such compensation shall be limited to CM/GC’s actual direct costs and expenses incurred as a direct result of such Compensable Delay. In no event shall CM/GC be entitled to any additional indirect costs associated with running a business and not directly associated with Subcontract Work on the Site (Overhead or G&A) or profit as a result of any Compensable Delay. Together, overhead and profit shall be referred to herein as “OH&P.”

[END OF ARTICLE 2.]

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ARTICLE 3. PRICE AND PAYMENT PROVISIONS

A. PRECONSTRUCTION SERVICES FEE, FIRM-FIXED PRICE

Preconstruction Services are performed on a Firm-Fixed-Price basis under FAR 16.202. FFDG shall pay CM/GC a fixed fee for CM/GC’s Preconstruction Phase services, payable monthly based on percentage of services completed. The Preconstruction Services Fee for each Priority is:

DESCRIPTION FFP FEE

Priority #1 – Beamline Complex $ TBD Priority #2 – Near Detector Complex Excavation (less SAND Alcove) $ TBD Priority #2a – Near Detector Complex Excavation (less SAND Alcove) $ TBD Priority #3 – Floor Slab and Embedded Plates $ TBD Priority #4 – Near Detector Hall Mezzanine $ TBD Priority #5 – Near Detector Complex Service Building Shell $ TBD Priority #6 – Near Detector Complex Fit-out $ TBD Priority #7 – Site Improvements $ TBD Priority #8 – Near Detector Complex Architectural Façade $ TBD Priority #9 – SAND Alcove $ TBD

Table 2 - Preconstruction Services FFP Fee

The Preconstruction Services Fees are not subject to adjustment except by Change Order for a change in the scope of Preconstruction Services directed by FFDG and is not subject to the EPA Program in ARTICLE 4 or the Shared Savings Program in ARTICLE 3., Section F., each of which applies solely to the Construction Phase.

B. PRICE OF AWARDED WORK PACKAGE FOR AWARDED INITIAL PRIORITIES

The awarded Work Package specific to the Initial Priorities set forth in Exhibit D shall be performed for the following fixed prices:

DESCRIPTION FFP FEE

Work Package #1: $ TBD Work Package #2: $ TBD Work Package #3: $ TBD

Table 3 - Awarded Work Packages

Fixed prices for additional Work Packages required for the Initial Priorities will be established using the procedure described below in Section E. of this ARTICLE 3.

C. CM/GC’s FEE The CM/GC Fee is deemed to compensate CM/GC for its OH&P, including but not limited to, home office overhead, profit, and general management services not otherwise separately factored into the fixed price established for each Work Package. Once the fixed price for a Work Package is established, the CM/GC Fee is included in the fixed price, and the fixed price does not vary with the actual cost of the work incurred.

CM/GC Fee shall be a separate line item in the Schedule of Values for each Work Package and shall be subject to retainage in accordance with the terms and conditions of this Agreement.

This section establishes a fixed percentage for the CM/GC Fee to be applied to all cost elements other than insurance and bonds when, establishing a fixed price for a Work Package under Article 4, Section E., or when definitizing Change Orders.

For purposes of establishing fixed prices for Work Packages for subsequently awarded Optional Priorities and Change Orders, GM/GC’s Fee shall be:

TBD percent (__%)

D. GUARANTEED MAXIMUM PRICE TERMS

1. Aggregate GMP “Aggregate GMP” shall mean the maximum compensation, payable to the CM/GC for the awarded Work in the aggregate. As of the date of execution of this Subcontract, the Aggregate GMP is, and the

LBNF/DUNE-US NSCF Construction Page 10 of 44 Batavia, Illinois price for the Work included in all Awarded Priorities is guaranteed by the CM/GC not to exceed, _______________________ ($________________), subject to the additions and deductions by Change Order and Subcontract Modifications.

a) The Aggregate GMP shall include a line item for CM/GC Contingency. CM/GC Contingency shall be in an amount, proposed by CM/GC and agreed by FFDG, to address pricing increases arising from unforeseen conditions, minor design refinements, coordination issues, and other risks properly allocated to CM/GC under the GMP, but excluding scope changes directed by FFDG.

(1) This Section does not establish an FFDG- or Government-tracked or drawn-down CM/GC contingency line items to be incorporated in any FP Proposal or Supplemental Agreement implementing fixed prices for Priorities. Reserves for foreseeable, quantifiable risk (e.g., normal estimating margin) may be reflected in CM/GC’s negotiated GMP pricing and CM/GC Fee. A contingency that could be drawn-down during construction raises cost-allowability concerns under FAR 31.205-7 (Contingencies) unless tied to specific, quantifiable, foreseeable cost items, in which case the item is more appropriately processed as a Change Order under ARTICLE 11. – CHANGES TO THE WORK. when and if it occurs, rather than pre-funded.

Government-side risk financing for the Project is held separately as DOE Project Contingency under the Project’s DOE O 413.3B Program/Project Management Plan and Contingency Management Plan and is administered outside the Shared Savings Program.

(2) If CM/GC increases the Priority GMP by using CM/GC Contingency held in the Aggregate GMP, the line item for the CM/GC Contingency will be reduced so that there is no net increase to the Aggregate GMP.

(3) Unused CM/GC Contingency shall remain in the Aggregate GMP until Final Completion of all Work for all Awarded Priorities, at which time it shall be treated as Savings under the Shared Savings Program described below.

b) The Aggregate GMP shall include all awarded Priority GMPs. The Priority GMP for subsequently awarded Priorities will be added to the Aggregate GMP through a Supplemental Agreement that will address any adjustments to the Priority GMP authorized under ARTICLE 5., Section A. below.

2. Priority GMPs The price for the Work included in each Priority is guaranteed by the CM/GC not to exceed the amount identified below, subject to adjustment in accordance with subsection c below. Such maximum is referred to as a “Priority GMP.” The Priority GMP is the maximum compensation, including without limitation, the CM/GC Fee and compensation payable to the CM/GC for the Work included in the Priority. Each Priority GMP is comprised of: (i) the fixed price of each Bought-Out Package, established through the competitive procurement process and fixed as of its Buyout Date; (ii) the current Pre-Buyout Estimate for each trade/bid package not yet bought out, which remains subject to adjustment under ARTICLE 4., Section C. (Economic Price Adjustment) until its Buyout Date; (iii) General Conditions costs; (iv) the CM/GC Fee established under this ARTICLE 3.; and (v) CM/GC Contingency.

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PRIORITY GMPs Priority #1 – Beamline Complex

(i) Construction Phase WORDS NUMBERS

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #2 – Near Detector Complex Excavation (less SAND Alcove)

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #2a – Near Detector Complex Excavation (less SAND Alcove)

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #3 – Floor Slab and Embedded Plates

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #4 – Near Detector Hall Mezzanine

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #5 – Near Detector Complex Service Building Shell

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #6 – Near Detector Complex Fit-out

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #7 – Site Improvements

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #8 – Near Detector Complex Architectural Façade

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii) Priority #9 – SAND Alcove

(i) Construction Phase

(ii) Firm Fixed Price for Preconstruction Services

(iii) Priority Aggregate GMP (i + ii)

Table 4 - Priority GMPs

Each Priority GMP shall include a Schedule of Values identifying the Eligible Costs subject to Economic Price Adjustment (as described below) and establish a Base Price for each Eligible Cost.

FFDG has the right to select, in its sole discretion and subject to the terms of the Subcontract, those Priorities to be included in the Work. Amounts which would cause the Aggregate GMP to be exceeded shall be paid by the CM/GC without reimbursement by FFDG.

3. Adjustments to Priority GMPs Upon award of an Optional Priority, the Priority GMP shall be adjusted to account for Change Orders and Economic Price Adjustments and may be adjusted, in the CM/GC’s discretion, by using CM/GC Contingency held in the Aggregate GMP.

a) Change Orders Upon award of an Optional Priority, the Priority GMP for that Priority shall be adjusted by any Change Orders applicable to the work of the Priority executed in accordance with ARTICLE 11 –

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CHANGES TO THE WORK, but only for those Change Orders for:

(1) changes in the Work directed or approved by FFDG;

(2) Differing Site Conditions as provided in ARTICLE 12., Section C;

(3) Force Majeure Events to the extent permitted under ARTICLE 2., Section C.;

(4) errors or omissions in FFDG-furnished Design Documents; or

(5) other causes expressly identified in the Contract Documents as grounds for equitable adjustment.

b) Economic Price Adjustments

This provision contemplates a one-time adjustment of a Priority GMP upon award of the associated Priority prior to incorporation of the Priority GMP into the Aggregate GMP. The adjustment shall be made in accordance with ARTICLE 4. – THE EPA PROGRAM below.

c) Use of CM/GC Contingency CM/GC may, in its discretion, use CM/GC Contingency to increase a Priority GMP prior to its incorporation into the Aggregate GMP. As described above, use of CM/GC Contingency reduces the line item for CM/GC Contingency in the Aggregate GMP, but has there is no net increase to the Aggregate GMP once the Priority GMP is incorporated.

In the event that the parties are unable to reach agreement relating to any Change Orders that might impact an adjustment to a Priority GMP, the Supplemental Agreement shall include a qualification allowing further adjustment of the Priority GMP upon resolution of the outstanding Change Orders.

4. Adjustment to Aggregate GMP The Aggregate GMP shall be modified to incorporate the Priority GMP (as adjusted in accordance with this section) for the newly awarded Optional Priority.

E. Definitization of Work Packages The Construction Phase is to be performed on a Fixed-Price with Economic Price Adjustment (FPEPA) basis under FAR 16.203-2. Fixed prices shall be established for each Work Package through the definitization process described in this section.

1. Reconciliation Process

a) CM/GC must observe competitive procedures compliant with rules and procedures established by

FFDG when awarding subcontracts and purchasing materials and equipment. CM/GC’s subcontracting and purchasing shall be subject to FFDG’s review and approval.

b) CM/GC will prepare a proposal for a fixed-price for each Work Package (“FP Proposal”). Each FP Proposal submitted shall be prepared and presented on a fully open-book basis, including each construction cost estimate supporting it and each competitive proposal obtained from subcontractors, material suppliers and equipment suppliers. The Parties intend that the fixed price will be based primarily on cost of sub-subcontracts established through a competitive bidding process, CM/GC’s general conditions, and CM/GC’s fee for overhead (including G&A) and profit.

c) FFDG shall have the right to request substantiation of any line item, including items identified as Eligible Costs subject to an EPA Adjustment.

d) FFDG may prepare, or engage a third party to prepare, an Independent Cost Estimate (ICE) to test the reasonableness of the GMP Proposal. CM/GC shall cooperate in good faith with FFDG’s and the ICE preparer’s review, including by making CM/GC’s estimators and subcontractor bid files reasonably available. CM/GC shall provide FFDG and, if applicable, FFDG’s independent cost estimator such further detail, work papers, and quotations as FFDG may reasonably request to validate that the pricing is fair and reasonable.

e) CM/GC may be required to participate in one or more reconciliation workshops with FFDG (and, if engaged, the ICE preparer) to review the FPEPA Proposal line by line, identify and reconcile variances between the FPEPA Proposal and the ICE, and work in good faith toward an agreed fixed price. If, following such workshops, FFDG requests changes, clarifications, or additional substantiation, CM/GC shall submit a revised FPEPA Proposal reflecting the same.

f) Neither Party shall unreasonably delay the reconciliation process, and each Party shall use good-

LBNF/DUNE-US NSCF Construction Page 13 of 44 Batavia, Illinois faith efforts to complete reconciliation within the time contemplated by the Project Schedule.

g) Assumptions, Clarifications, and Allowances -- The FP Proposal shall identify all assumptions, clarifications, exclusions, and allowances on which the fixed price is based.

2. Subcontract Modification

a) The fixed price for a Work Package shall be incorporated into the Subcontract by Subcontract

Modification, subject only to adjustment by Change Order under ARTICLE 11. – CHANGES TO THE WORK or by EPA Adjustment authorized under ARTICLE 4., THE EPA PROGRAM.

b) The Subcontract Modification adopting a fixed price shall include any Assumptions and Clarifications accepted by FFDG. Assumptions and Clarifications that have not been accepted by FFDG shall not be the basis for any Change Orders. Any work later determined to fall outside the stated assumptions, or any allowance item whose actual cost varies from the stated allowance, shall be addressed by Change Order in accordance with ARTICLE 11. – CHANGES TO THE WORK. In no event shall CM/GC be entitled to a Change Order based on any assumptions, clarifications or allowances that have not been accepted by FFDG

c) If the Parties are unable to reach mutual agreement to a fixed price for the construction work included in the awarded Priority within _______, the Parties will establish a Provisional Fixed Price (“Provisional FP”) calculated as follows:

A = the sum of the subcontracted trade work

B = provisional General Conditions = (A) x __%

C = Overhead and Profit rate established at Subcontract Award

A + B + C = Provisional FFP.

FFDG may notify CM/GC of FFDG’s intent to establish a Provisional FP, and such notice will include FFDG’s calculation of the Provisional FP. CM/GC may, within ten (10) days’ notice from FFDG of intent to establish a Provisional FP, provide notice to FFDG of CM/GC’s objection to the FFDG’s Provisional FP calculation. CM/GC’s objection to the Provisional FP calculation shall state with specificity: (1) the basis for CM/GC’s objection; (2) the exact dollar value of any additional compensation sought by CM/GC; and (3) any changes to the time for completion sought by CM/GC and associated impact on the Provisional FP. If CM/GC makes a timely objection to the FFDG’s Provisional FP calculation, within ten (10) days of CM/GC’s objection, the Parties shall execute a Subcontract Modification establishing the FFDG’s Provisional FP as the fixed price of the work included in the applicable Priority, subject to CM/GC’s right to pursue a claim under the Disputes Clause for additional compensation or time for completion. CM/GC waives any claim for compensation or time not disclosed in its timely objection. CM/GC must initiate any such claim within ten (10) days of the Subcontract Modification. If CM/GC fails to object within ten (10) days of the notice from FFDG, CM/GC waives any further claims to recovery, and CM/GC shall execute a Subcontract Modification establishing the Provisional FP as the fixed price for the construction work included within the applicable Priority.

F. Shared Savings Program

1. Purpose and Intent This Section establishes a shared savings mechanism (the “Shared Savings Program”) for CM/GC’s delivery of Work for less than the Aggregate GMP, as adjusted by Change Orders. Under this Program, cost savings realized against the Aggregate GMP are shared between CM/GC and FFDG following Final Cost Reconciliation. The Shared Savings Program is intended to align CM/GC’s financial interest with efficient, cost-effective execution while preserving FFDG’s and the Government’s cost transparency and audit rights under FAR Part 31.

The Parties acknowledge that value engineering and competitive buyout may result in fixed prices for Priorities that are below the Priority GMPs and may ultimately result in a total cumulative price for the work of all Priorities that is less than the Aggregate GMP. These savings create budget capacity enabling the award of additional Work. Budget capacity that becomes available upon establishment of a fixed price for any Priority may be applied by FFDG, in its sole discretion, toward the award of one or

LBNF/DUNE-US NSCF Construction Page 14 of 44 Batavia, Illinois more Optional Priorities or the addition of Work by Change Order. To support timely awards within the Option Validity Period, CM/GC shall, as part of its Preconstruction Phase services and its buyout reporting under ARTICLE 3. – PRICE AND PAYMENT PROVISIONS, keep FFDG reasonably informed of projected Buyout Savings and value-engineering opportunities and their potential effect on available budget capacity.

The Shared Savings Program does not modify CM/GC’s or FFDG’s rights under ARTICLE 11. – CHANGES TO THE WORK, ARTICLE 12., Section C. – DIFFERING SITE CONDITIONS, or Clause

8.2 of the General Terms and Conditions (Disputes), and shall be read together with ARTICLE 4. – THE EPA PROGRAM, ARTICLE 16. – VALUE ENGINEERING, and Exhibit N (Award Fee Incentive Plan).

2. Applicable Definitions “Adjusted GMP,” “Bought-Out Package,” “Buyout Date,” “Buyout Overrun,” “Buyout Savings,” “CM/GC Fee,” “Cost Overrun,” “Final Cost of the Work,” “Pre-Buyout Estimate,” and “Savings” have the meanings given in Exhibit O hereto.

3. Preconstruction Work Excluded The Shared Savings Program applies when all of the Work required to complete all nine Priorities is complete. The Shared Savings Program does not apply to Preconstruction Phase services compensated on the fixed-price basis described in ARTICLE 3., Section A., or to allowance items, if any, identified as such in the Aggregate GMP Schedule of Values.

4. Accounting CM/GC shall maintain open-book cost records for its General Conditions, self-performed Work, and any Pre-Buyout Estimate, accessible to FFDG’s Representative upon reasonable request, consistent with ARTICLE 5., Section F.

FFDG and DOE retain audit rights under FAR 52.215-2 (Audit and Records — Negotiation) over all records relevant to the Subcontract, including the Shared Savings Program, and CM/GC shall retain such records for not less than three (3) years following final payment.

5. Calculation of Shared Savings Shared Savings shall only be paid to CM/GC only in the event that: (1) FFDG awards a Priority; (2) CM/GC achieves Final Completion of the Work under such Priority; and (3) the Final Cost of the Work for such Priority is less than the applicable Priority GM, as adjusted for Change Orders and Economic Price Adjustments.

If Savings is positive, it shall be shared ___% to FFDG and ___% to CM/GC.

CM/GC’s Savings share shall be paid within ___ days following FFDG’s Representative’s approval of Final Cost Reconciliation under ARTICLE 3., Section F.9. of the Shared Savings Program.

6. Cost Overrun Risk and Responsibility CM/GC is solely responsible for, and shall bear without reimbursement or sharing by FFDG, any Cost Overrun arising from its own estimating error, means and methods, productivity, or other cost or schedule risk within its control, including any Buyout Overrun. CM/GC acknowledges that no FFDG-funded contingency is available to offset such a Cost Overrun.

FFDG is responsible for the cost of: (1) FFDG-directed changes, compensated through Change Order under ARTICLE 11. (Changes in the Work); (2) Differing Site Conditions, compensated through equitable adjustment under ARTICLE 12., Section C.; and (3) Economic Price Adjustments approved under the EPA Program that become payable to the CM/GC.

Except as provided in Section 5 of the Shared Savings Program, no cost increase is shared between the Parties under the Shared Savings Program. CM/GC’s Fee is not reduced on account of a Cost Overrun described in ARTICLE 3., Section F.6. of the Shared Savings Program; however, CM/GC is not entitled to payment above the Adjusted GMP for any such Cost Overrun.

Nothing in ARTICLE 3., Section F. of the Shared Savings Program limits CM/GC’s right to seek an equitable adjustment for an FFDG-caused delay or constructive change under ARTICLE 11. – CHANGES TO THE WORK and the General Terms and Conditions.

LBNF/DUNE-US NSCF Construction Page 15 of 44 Batavia, Illinois

7. Value Engineering CM/GC is encouraged to submit Value Engineering Change Proposals (“VECPs”) for FFDG’s review and written approval, consistent with the value engineering services described in ARTICLE 16. – VALUE ENGINEERING. An approved VECP shall be documented by Change Order under ARTICLE

11. – CHANGES TO THE WORK, specifying the resulting reduction to the Adjusted GMP and the sharing ratio applicable to the resulting savings. The treatment of VECP savings within the Adjusted GMP and Savings calculation is governed by ARTICLE 3., Section F.7. FFDG may apply its share of VECP savings, and any resulting budget capacity, toward the award of Optional Priorities under

ARTICLE 5. – AWARD OF OPTIONS.

8. Monthly Reporting CM/GC shall submit a Monthly Report to FFDG’s Representative by the last business day of each month, including: cost and schedule status; forecast Savings or Cost Overrun; cumulative Buyout Savings/Buyout Overrun by trade/bid package; and status of open Change Orders, Differing Site Conditions claims, and Economic Price Adjustments. Failure to timely submit a complete Monthly Report is a material breach and may result in withholding of up to ___% of CM/GC’s next progress payment until cured.

9. Final Savings Reconciliation Within ___ days after Substantial Completion of a Priority, CM/GC shall submit a Final Cost Reconciliation package, including a final accounting of the final fixed price accounting for all change orders and a completed Savings reconciliation worksheet, in a format consistent with the GMP Schedule of Values, certified by an officer of CM/GC.

FFDG’s Representative shall issue a final determination within ___ days of receipt, and any amount due shall be paid within ___ days of that determination.

[END OF ARTICLE 3.]

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ARTICLE 4. THE EPA PROGRAM, ECONOMIC PRICE ADJUSTMENTS

The anticipated period of performance for the Construction Phase of the Project, together with continuing volatility in construction labor and commodity markets, creates a significant risk that material changes in construction costs could occur after establishment of (1) the Priority GMP and prior to award of the Priority; and

(2) after establishment of fixed price for a Work Package. Consistent with FAR 16.203-2, an “EPA Program” is appropriate because serious doubt exists regarding the stability of market and labor conditions during the anticipated period of performance. This Article implements an EPA Program to allocate normal market risk to CM/GC while protecting both CM/GC and FFDG from extraordinary cost escalation or deflation. By providing an objective, transparent, and auditable adjustment methodology, the EPA Program reduces the need for CM/GC to embed speculative escalation contingency in its Priority GMPs and in the fixed prices established for Work Packages, resulting in more competitive pricing and improved price realism.

A. APPLICATION TO PRIORITY GMP

Each Priority GMP will have a Schedule of Values that identifies costs that are subject to adjustment through the EPA Program. Adjustment of the Eligible Costs within the Priority GMP will occur only once, at the time the Priority has been awarded and the Priority GMP is incorporated into the Aggregate GMP.

B. APPLICATION TO WORK PACKAGES

“Work Package” shall have the meaning set forth in Exhibit O hereto. A Priority may comprise a single Work Package or multiple Work Packages priced and bought out at different times; where a Priority is priced and bought out as a single Work Package, references to “Work Package” in this EPA Program mean the Priority as a whole. Because Work Packages will be bought out at fixed prices established at different times, the EPA Program establishes a separate Base Index for Eligible Costs as of the date its Base Price is set, so that Index movement is measured only for the period between pricing of the Eligible Costs and incurrence of such costs. Each Work Package will have a Schedule of Vales that identifies costs that are subject to adjustment through the EPA Program. This provision contemplates adjustment of the fixed prices for each Work Package on an ongoing basis until completion of the work included in the Work Package.

C. PROCESS FOR EPA ADJUSTMENTS

1. Index Reference Adjustments under the EPA Program shall be calculated exclusively by reference to the Engineering News-Record (ENR) Construction Cost Index (CCI) — Chicago1 (“the Index”), a published, independently maintained construction cost index. The index shall be used consistently for the Base Index and for the Adjustment Index. No other published index, cost data source, or CM/GC-specific cost record shall be substituted for calculating an adjustment under the EPA Program absent a bilateral Change Order or written amendment to this Agreement.

2. Base Index and EPA Base Period For purposes of the EPA Program, “Base Index” means the value of the Index published for the month immediately preceding the Proposal Base Date.

For each Priority GMP, “Proposal Base Date” means the month immediately preceding the date of the Subcontract Proposal.

For each Work Package, “Proposal Base Date” means the date on which that Work Package’s Base Price is first definitized as a fixed price in a Subcontract Modification. Where a Priority is priced as a single Work Package, its Proposal Base Date is the date fixed price is established through Subcontract Modification.

The Base Index is fixed as of a Proposal Base Date, cannot be modified, and is not affected by, and does not affect, the Base Index established for any other Work Package or Priority GMP, whether within the same Priority or a different one. If a Work Package’s Base Price is revised via Change Order prior to its fixed price, the Work Package’s Proposal Base Date and Base Index shall be revised concurrently to correspond to the date of that revision; provided that any such revision attributable solely to a scope change shall be priced separately and shall not be proportionally allocated through the EPA Program.

1 https://www.enr.com/economics/historical_indices/Chicago

LBNF/DUNE-US NSCF Construction Page 17 of 44 Batavia, Illinois

3. Eligible and Excluded Costs

a) Eligible Costs

EPA adjustments may be made to direct construction labor, permanent materials, and equipment incorporated into the Work, and other cost elements specifically designated as eligible in the Schedule of Values for the applicable Priority GMP or Work Package, and for which a Base Index is identified in accordance with subsection (4) below. Commodity and labor categories expected to be primary drivers of index-based cost movement include, without limitation, structural steel, reinforcing steel, piping, electrical commodities, concrete, major mechanical equipment, and direct craft labor. A Work Package not yet bought out has no identified Eligible Costs and is not subject to adjustment under the EPA Program until it is bought out. The Priority GMP will not be adjusted as a result of EPA Program adjustments to Work Packages.

b) Excluded Costs EPA adjustments do not apply to the CM/GC Fee or profit, Contingency, insurance, bonds, taxes, design or Preconstruction Phase services, separately negotiated Change Orders, or other cost elements excluded in the trade/bid package pricing documents.

4. Base Price “Base Price” means the value assigned to Eligible Costs, as defined in Section 3. above, in the applicable Schedule of Values. The Base Price and Base Index for Eligible Costs are established concurrently as of the Proposal Base Date.

Base Prices shall not include contingency, allowance, or markup for anticipated future escalation.

Because EPA is calculated as a Work Package’s Base Price multiplied by the Adjustment Factor (as defined subsection 6, below), any escalation contingency embedded in a Base Price would both inflate the dollar magnitude of subsequent EPA and duplicate the function of the EPA Program itself. Inclusion of undisclosed escalation contingency in a GMP Proposal, GMP Amendment, or Schedule of Values is subject to audit and disallowance.

CM/GC shall submit, and maintain on at least a monthly basis, a Work Package Buyout Schedule identifying each anticipated Work Package within a Priority, its estimated or established Base Price, its Proposal Base Date (if established), and its anticipated fixed price/buyout date. At the time a Work Package’s Base Price is first established, CM/GC shall submit, and FFDG shall confirm in writing, that Work Package’s Base Price and Proposal Base Date in accordance with Section 2. At the time of buyout of each Work Package, CM/GC shall submit, and FFDG shall confirm in writing, the Base Index and Base Price.

5. Timing of Adjustments and Multiple Buyout Packages

a) Each Priority GMP’s and Work Package’s Base Index shall be determined independently with respect to its own Proposal Base…