03 Exhibit O - Definitions.pdf

Exhibit O to Subcontract No. XXXXXX Fermi National Accelerator Laboratory LBNF/DUNE-US NSCF Construction Page 1 of 5 Batavia, Illinois

EXHIBIT O

DEFINITIONS

Capitalized terms used in this Agreement have the meanings set forth below or elsewhere in this Agreement. Terms defined in the Prime Contract and incorporated by reference retain the meanings given in the Prime Contract unless the context requires otherwise. Words in the singular include the plural and vice versa, and the word “including” means “including without limitation” unless the context clearly requires otherwise.

Adjusted GMP. The GMP established for a GMP Amendment, as increased or decreased by FFDG-directed changes under ARTICLE 11 – CHANGES TO THE WORK, Differing Site Conditions under ARTICLE 12., Section C., and Economic Price Adjustments under ARTICLE 4.

Applications for Payment. CM/GC’s monthly written requests for payment submitted in accordance with Article 3, substantiated by the GMP Schedule of Values and supporting documentation.

Awarded Priority. A Priority for which a Priority GMP has been established, whether at execution of this Agreement under ARTICLE 5., Section A., upon FFDG’s award of an Optional Priority under ARTICLE 5., Section B., or under a GMP Amendment pursuant to ARTICLE 3., Section D.3.

Baseline Schedule. The initial, FFDG-accepted critical path method (CPM) schedule for the Construction Phase submitted with the GMP Proposal and incorporated into the GMP Amendment as Exhibit D, against which all subsequent progress, delay, and time-extension analyses are measured.

Basis of Design / Design Documents. The design criteria, drawings, specifications, and other technical documents developed for the Project, whether prepared by FFDG’s designer of record or a third-party architect/engineer. The Parties acknowledge that the Design Documents are complete (100% design) as of the Effective Date, subject to any design revisions issued by FFDG.

Bought-Out Package. A trade/bid package awarded as a fixed-price lump-sum Subcontract following competitive solicitation under ARTICLE 3., Section E. Its price is fixed as of its Buyout Date.

Business Day. Any Day other than a Saturday, Sunday, or federal holiday observed at the Facility.

Buyout Date. The date CM/GC executes a Subcontract for a trade/bid package.

Buyout Overrun. The amount, if any, by which a trade/bid package’s actual competitively bid award price exceeds its Pre-Buyout Estimate.

Buyout Savings. The amount, if any, by which a trade/bid package’s Pre-Buyout Estimate exceeds its actual competitively bid award price.

CFR. The Code of Federal Regulations.

Change Order. A written instrument, signed by FFDG and CM/GC in accordance with ARTICLE 11. – CHANGES TO THE WORK, authorizing a change in the Work, the Contract Time, and/or the GMP.

CM/GC Fee. CM/GC’s compensation under ARTICLE 3 – PRICE AND PAYMENT PROVISIONS, established as a fixed amount or a fixed percentage of a fixed cost target — not a percentage of actual incurred cost — consistent with FAR 16.102(c).

Commercial Product; Commercial Service; COTS Item. “commercial product,” “commercial service,” and “commercially available off-the-shelf (COTS) item” have the meanings given in FAR 2.101 (Definitions).

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Completion Deadline(s). The date(s) by which CM/GC is required to achieve Substantial Completion and Final Completion of the Work, or a designated portion thereof, as set forth in the Construction Schedule and the GMP Amendment, as adjusted by Change Order.

Construction Phase. With respect to any Work Package, the phase commencing upon FFDG’s issuance of a Notice to Proceed with Construction during which CM/GC performs or subcontracts the Work of actual construction.

Contingency. The CM/GC Contingency and the FFDG’s Contingency established under ARTICLE 3. – PRICE AND PAYMENT PROVISIONS, to be used solely for the purposes described therein.

Contract Documents. Collectively, this Subcontract, the General Terms and Conditions (Exhibit E), the Design Documents, the GMP Proposal and GMP Schedule of Values once accepted, the Construction Schedule, all Exhibits, Addenda issued prior to execution, and all Change Orders and written amendments executed after the Effective Date.

Cost of the Work. The costs necessarily incurred by CM/GC in the proper performance of the Work and reimbursable to CM/GC as set forth in ARTICLE 3 – PRICE AND PAYMENT PROVISIONS, as distinguished from the CM/GC Fee; for purposes of ARTICLE 3., the term collectively refers to the fixed price of each Bought-Out Package, the current Pre-Buyout Estimate of each package not yet bought out, and CM/GC’s actual Allowable General Conditions and self-performed Work cost, exclusive of CM/GC Fee.

Cost Overrun. The amount, if any, by which the Final Cost of the Work plus CM/GC Fee exceeds the Adjusted GMP.

Day. A calendar day unless otherwise stated as a “Business Day.”

DEAR. The Department of Energy Acquisition Regulation.

Differing Site Conditions. (a) subsurface or latent physical conditions at the site differing materially from those indicated in the Contract Documents, or (b) unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents, as further addressed in Section 3.5.

DOE. The United States Department of Energy or any duly authorized representative thereof.

Facility. Fermi National Accelerator Laboratory, a DOE-owned, contractor-operated national laboratory site located at Kirk Road and Pine Street, Batavia, Illinois 60510.

FAR. The Federal Acquisition Regulation.

Fermilab. The physical site and property that is the Fermi National Accelerator Laboratory.

FFDG. Fermi Forward Discovery Group, LLC, acting as operator and manager of the Fermi National Accelerator Laboratory under United States Department of Energy Prime Contract No.

89243024CSC000002, including any successor to that Prime Contract and any duly authorized representative thereof. FFDG is the contracting entity for this Agreement.

FFDG Procurement Representative. The person in charge of administering this Agreement for FFDG, or his or her written designee.

FFDG’s Representative. The individual(s) designated in writing by FFDG, including the Procurement Specialist, authorized to act on FFDG’s behalf under this Agreement.

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Final Completion. The date on which CM/GC has completed all Work, including punch list items, in full accordance with the Contract Documents, and has satisfied all conditions to final payment set forth in Clause 2 of the General Terms and Conditions for Construction.

Final Cost of the Work. The Cost of the Work as finally determined at Final Cost Reconciliation under

ARTICLE 3., F.9.

Fixed Limit of Construction Cost (FLCC) / Total Project Cost (TPC). The construction cost limit and total project cost, respectively, established for the Project in FFDG’s approved funding baseline and Critical Decision documentation, against which the GMP and Total Project Cost impacts are tracked and reconciled under ARTICLE 3., Section E.

Force Majeure Event. An event described in ARTICLE 2., Section C.

GMP. The Guaranteed Maximum Price established under Article 3, being the sum of the Priority GMPs of all Awarded Priorities and the maximum amount FFDG shall be obligated to pay CM/GC for the Cost of the Work plus the CM/GC Fee for full and complete performance of the Work covered thereby, subject to adjustment only by Change Order or as otherwise expressly permitted under this Agreement.

GMP Amendment. A written amendment to this Agreement, executed by both Parties in accordance with ARTICLE 5., Section B., adding an Option Priority as an Awarded Priority or establishing a GMP or Priority GMP for scope not priced at execution, together with the associated Baseline Schedule and GMP Schedule of Values updates.

GMP Proposal. CM/GC’s written proposal for the GMP submitted in accordance with ARTICLE 3., Section D.2., including all supporting documentation required thereunder.

Government. The Government of the United States acting through the United States Department of Energy or its successor.

Independent Cost Estimate (ICE). A cost estimate prepared by, or on behalf of, FFDG independent of CM/GC’s cost build-up, used to test the reasonableness of the GMP Proposal in accordance with ARTICLE 3., Section E.

Key Personnel. The individuals designated to fill the CM/GC positions identified in ARTICLE 17. –

ASSIGNMENT OF KEY PERSONNEL.

Notice to Proceed (NTP). A written notice issued by FFDG authorizing CM/GC to commence a defined phase or portion of the Work, including a “Preconstruction NTP,” an “Early Work NTP,” and a “Construction

NTP.”

Optional Priority. A Priority priced in CM/GC’s proposal but not awarded at execution of this Agreement, which FFDG may award as provided in ARTICLE 5., Section B.

Pre-Buyout Estimate. CM/GC’s current estimated cost for a trade/bid package not yet bought out.

Preconstruction Phase. The phase of the Project commencing upon issuance of the Preconstruction NTP, during which CM/GC performs the Preconstruction Phase services described in Exhibit C and continuing until the earlier of issuance of the Construction NTP or FFDG’s election not to proceed under ARTICLE 1., Section B.3.

Prime Contract. The M&O contract between FFDG and DOE, Contract No. 89243024CSC000002, pursuant to which FFDG operates the Facility and undertakes the Project.

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Priority. One of the prioritized elements of the Project scope identified and described in Exhibit A or Exhibit B hereto and priced separately in CM/GC’s proposal in response to the RFP (each, a “Priority,” and collectively, the “Priorities”).

Priority GMP. The guaranteed maximum price established for an individual Priority under ARTICLE 5 – AWARD OF OPTIONS. The GMP is the sum of the Priority GMPs of all Awarded Priorities, as adjusted pursuant to this Agreement.

Project. The LBNF Near Site Conventional Facilities Construction project described in Exhibit A.

Proposal Base Date. The proposal due date under the RFP, being the date as of which CM/GC’s Priority GMP pricing was established through competition, and from which Economic Price Adjustments under ARTICLE 4. – THE EPA PROGRAM are measured for each Priority GMP established on the basis of CM/GC’s competitive proposal.

Punch List. The list of minor items of Work to be completed or corrected following Substantial Completion, as established in accordance with the General Terms and Conditions.

RFP. The competitive Request for Proposals through which FFDG procured this Agreement, including all amendments thereto.

Savings. The amount, if any, by which the Adjusted GMP exceeds the Final Cost of the Work plus CM/GC Fee.

Schedule of Values. The itemized breakdown of the GMP by trade/cost code, in the format of Exhibit C, used as the basis for Applications for Payment.

Subcontractor. Any person or entity, at any tier, having a contract with CM/GC or with another subcontractor to perform any portion of the Work.

Substantial Completion. The stage in the progress of the Work, or a designated portion thereof, at which the Work is sufficiently complete in accordance with the Contract Documents so that FFDG can occupy or utilize the Work, or designated portion thereof, for its intended purpose, as certified in accordance with the General Terms and Conditions.

Work. All labor, materials, equipment, tools, plant, supervision, design-assist services, and other items, services, and obligations necessary for and reasonably inferable from the Contract Documents as required for CM/GC’s complete performance of the Project.

When an article, provision, or clause of this Agreement uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless:

(a) the solicitation, or amended solicitation, provides a different definition;

(b) the contracting parties agree to a different definition in this Agreement;

(c) the part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning; or

(d) the word or term is defined in FAR Part 31 for use in the cost principles and procedures.

When a provision or clause of this Agreement uses a word or term that is defined in the Department of Energy Acquisition Regulation (DEAR) (48 CFR chapter 9), the word or term has the same meaning as the definition in 48 CFR 902.101 or the definition in the part, subpart, or section of 48 CFR chapter 9 where the

LBNF/DUNE-US NSCF Construction Page 5 of 5 Batavia, Illinois provision or clause is prescribed, in each case in effect at the time the solicitation was issued, unless an exception or a different definition set forth in this Exhibit O applies.

Work Package. A discrete trade or bid package for a portion of the construction work required for a Priority that is separately priced and bought out for a fixed price, whether awarded to a Subcontractor or self-performed by CM/GC.

[END OF EXHIBIT O]