04 Package 4 (Sample Subcontract) 4-20-23.pdf

REQUEST FOR PROPOSAL

FRA RFP NO. LBNF- 342297-BWQ

for the Construction of the

Long-Baseline Neutrino Facility (LBNF)

Near Site Conventional Facilities (NSCF)

Wetland Permit Work Construction

Package No. 4 of 4:

SAMPLE SUBCONTRACT

(and Incorporated Documents)

Request for Proposal

FRA RFP No. LBNF- 342297 -

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Package 4: Sample Subcontract

THIS PAGE INTENTIONALLY LEFT BLANK

FRA RFP No. LBNF-342297 -

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TABLE OF CONTENTS

Request for Proposal (FRA RFP No. LBNF- 342297-BWQ) Package No. 4 of 4

• Sample Subcontract o Sample Subcontract with Insurance Requirements

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – SUBMIT ANY

QUESTIONS / COMMENTS WITH YOUR PROPOSAL

o FRA General Terms and Conditions

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – SUBMIT ANY

QUESTIONS / COMMENTS WITH YOUR PROPOSAL

o Construction Specifications

NOT INCLUDED AS AN ENCLOSURE

SEE RFP PACKAGE NO. 3 OF 4 – RFP REFERENCE DOCUMENTS

o Construction Drawings

NOT INCLUDED AS AN ENCLOSURE

SEE RFP PACKAGE NO. 2 OF 4 – RFP REFERENCE DOCUMENTS

o General Wage Decisions No. IL11 and IL20

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – DO NOT

RETURN

• Exhibits

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – DO NOT RETURN

o Statement and Acknowledgement Form (SF1413)

ENCLOSED – ONLY THE SUCCESSFUL OFFEROR/AWARDEE WILL BE

REQUIRED TO EXECUTE AND RETURN THIS DOCUMENT

o Sample Performance (FL-40) and Payment (FL-42) Bonds

ENCLOSED FOR REFERENCE – ONLY THE SUCCESSFUL

OFFEROR/AWARDEE WILL BE REQUIRED TO SUBMIT BONDS

CONFORMING TO THESE SAMPLES

Request for Proposal Package 4: Sample Subcontract FRA RFP No. LBNF- 342297 -BWQ Wetland Permit Work Construction

FRA RFP No. LBNF- 342297

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Sample Subcontract

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL

SUBMIT ANY QUESTIONS / COMMENTS WITH YOUR PROPOSAL

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Subcontract Number XXXXXX For Wetlands Permit Work

Between FRA and Subcontractor

A1. Identification of Parties

This Subcontract is between Fermi Research Alliance, LLC (“FRA”) and the party identified below as the Subcontractor (“Subcontractor”).

A2. Subcontract Issued Under Prime Contract

This Subcontract is issued under Prime Contract No. DE-AC02-07CH11359 between the United States Government (“Government”), represented by the Department of Energy (“DOE”), and FRA for the management and operation of the Fermi National Accelerator Laboratory (“FNAL or Fermilab”) and the performance of research and development work.

A3. Relationships

Nothing in this Subcontract shall be deemed as creating any relationship between FRA and Subcontractor other than that of contractor and subcontractor or buyer and seller. Subcontractor shall not interpret any clause contained herein as being binding or purporting to bind the United States Government, its officers, or its agents.

A4. General Purpose of the Subcontract

The general purpose of this Subcontract is for construction services for Wetlands Permit Work, as further described herein.

A.5 Period of Performance

The base period of performance of this Subcontract is effective on TBD and shall continue through TBD.

A6. Order of Precedence

Any inconsistency in this Subcontract shall be resolved by giving precedence in the following order: Section A, B, D, E, F, G, H, I, C, J.

A7. Agreement

The parties agree to perform their respective obligations in accordance with the sections, terms and conditions, the documents referenced or incorporated herein, which constitute the entire Subcontract and shall supersede all prior negotiations, representations, or agreements, whether verbal or written.

A8. Signature

The parties have caused this Subcontract to be executed by their duly authorized agents by their signatures below.

Subcontractor

Signature:

Name:

Title:

Date:

Fermi Research Alliance, LLC (FRA)

Signature:

Name

Title:

Date:

Section B - Supplies or Services and Prices

B1. Prices

The Subcontractor shall provide the supplies or services at the prices shown in the table below.

Subcontract Line Item Number

(SLIN)

Description

Prices and

Subcontract Type

1 Wetlands Permit Work Construction Services TBD, Firm Fixed Price

B2. Firm Fixed Prices (FFP)

The Firm Fixed Prices are not subject to any adjustment by Subcontractor. Only the FRA Procurement Specialist is authorized to change the Firm Fixed Prices.

Section C - Description of Work

C1. Standards of Performance

The Subcontractor shall perform the work under this Subcontract by using its best efforts and know-how and its performance shall be accomplished in a workmanlike manner by qualified, careful and efficient personnel, in accordance with professional standards of care.

C2. Technical Reports

The Subcontractor shall prepare and submit to the Procurement Specialist and/or distribute, as directed by the Procurement Specialist, such reports concerning technical aspects of work under this Subcontract, in such quantity and form (including detail) and at such times, as may be specified in this subcontract, or as may otherwise be specified by the Procurement Specialist.

C.3 Conduct of Employees

The Subcontractor shall be responsible for maintaining satisfactory standards of employee competency, conduct, and integrity and shall be responsible for taking such disciplinary action with respect to its employees as may be necessary. The Subcontractor shall immediately remove from the work under this Subcontract any employee of the Subcontractor who, in the sole discretion of FRA, is found to be unsatisfactory in technical performance or personal conduct.

C4. Statement of Work

The Subcontractor shall perform the work in accordance with the Wetland Permit Work Drawing Set and Specifications Booklet, Attachment J-1 and J4 respectively.

Section D - Packaging and Marking

D1. Packaging and Marking

Unless otherwise stated in the Subcontract, the Subcontractor shall adequately package and mark all material, drawings, or other items required under this Subcontract to prevent damage during shipment to FRA.

Section E - Inspection and Acceptance

E1. Inspection and Acceptance

Inspection and acceptance shall be in accordance with the Wetland Permit Work Drawing Set and Specifications Booklet, Attachment J-1 and J4 respectively, and applicable clauses per Section I.

Section F - Deliveries or Periods of Performance

F1. Deliveries or Periods of Performance

Deliveries or periods of performance shall be in accordance with the following table.

Subcontract

Line Item Number

(SLIN)

Description

Delivery Dates or Periods of

Performance

1 Wetlands Permit Work Construction Services Approximately Nov. 2023 through March 2024

Section G - Subcontract Administration Data

G1. Subcontract Administration

a. FRA’s Procurement Specialist for this Subcontract is shown below. The Procurement Specialist or their designate is the only person authorized to make changes in the terms, conditions and requirements of this Subcontract or make modifications to this Subcontract including changes or modifications to the Statement of Work. The Subcontractor shall direct all notices and requests for approval required by this Subcontract to the Procurement Specialist at the following address:

FRA Procurement Specialist Attention:

Brian Quinn Email: bquinn@fnal.gov Phone: 630-840-5777

Fermi Research Alliance LLC Kirk Road & Wilson Street mailto:bquinn@fnal.gov

P.O. Box 500 – Mail Station # Batavia, IL 60510-0500

b. Any notices and approvals required by this Subcontract from FRA to the Subcontractor shall be issued by the FRA Procurement Specialist.

c. FRA’s Technical Representative for this Subcontract is shown below. The Technical Representative is the person designated to monitor the Subcontract work and to interpret and clarify the technical requirements of the Statement of Work. The Technical Representative is not authorized to make changes to the work or modify any of the terms and conditions, including the schedule and the pricing of this- Subcontract.

FRA Technical Representative Attention: John Szott Email: jszott@fnal.gov Phone: (630) 840-8435 Fermi Research Alliance, LLC Kirk Road & Wilson Street P.O. Box 500 – Mail Station Batavia, IL 60510-0500

d. Unless otherwise stated in the Subcontract, reports required by the Subcontract shall be separately submitted to the FRA Procurement Specialist and the FRA Technical Representative. Unless otherwise stated in the Subcontract, the reports shall be submitted by email.

G2. Notification of Potential Changes

The Subcontractor shall provide notification to FRA of potential changes to this subcontract (including Task Orders). The primary purpose of this clause is to obtain prompt reporting by the Subcontractor of circumstances or FRA actions that the Subcontractor considers to constitute a change to this Subcontract. The Subcontractor shall notify the FRA Procurement Specialist in writing of any actions, inactions, or communications by FRA that the Subcontractor regards as a potential change to the Subcontract. This notice requirement does not apply to formal change orders identified as such in writing and signed by the FRA Procurement Specialist pursuant to the Subcontract’s Changes clause. The Subcontractor shall provide the notice promptly, but no later than ten calendar days from the date that the Subcontractor identifies the potential change. Based on the most accurate information available to the Subcontractor, the notice shall state:

(1) The date, nature, and circumstances of the conduct regarded as a change;

(2) The name, function, and activity of each FRA individual and Subcontractor official or employee involved in or knowledgeable about such conduct;

(3) The identification of any documents and the substance of any oral communication involved in such conduct;

(4) In the instance of alleged acceleration of scheduled performance or delivery, the basis upon which it arose; and

(5) The elements of Subcontract performance for which the Subcontractor may seek an equitable adjustment under this clause.

G3. Invoices

All invoices shall be emailed to apinvoices@fnal.gov and the FRA Technical Representative with a copy to the Procurement Specialist. The subject line of the email shall state the Subcontractor’s name and the Subcontract number.

If the Subcontractor is unable to submit an invoice by email, it may submit the invoice to the following address:

FRA Accounts Payable Fermi National Accelerator Laboratory P.O. Box 500 – Mail Station 112 Batavia, IL 60510

G3.1 General Invoice Requirements

Invoices shall be sent electronically to APINVOICES@FNAL.GOV.

Invoices shall contain the following information:

1. Subcontractor name as stated in the Subcontract

2. Remittance address

3. Telephone number and/or email address of person requesting payment

4. Subcontractor's statement that the invoice is correct

5. FRA purchase order/subcontract number

6. Invoice number

7. Invoice date

8. Total invoice amount

9. Description, price, and quantity of materials, property, or services delivered or completed

10. For services: a detailed description of services provided and dates of service

11. For goods received: date shipped or date of delivery

12. Payment terms

13. Shipping terms and required documentation. A copy of pre-paid freight bill is required if charge is $250 or more.

14. Other documentation as required by the Subcontract

G4. Travel Expenses Reimbursable – Invoices

No foreign travel is anticipated for or kinder this subcontract. For domestic travel, actual travel expenses shall be reimbursable based upon FRA/Fermilab’s travel policy, which is based in part upon the Federal Travel Regulations (FTR), and only to the extent expended on Fermilab’s requirements. Travel and expenses agreed to be necessary for the performance of duties will be reimbursed, not to exceed U.S. Government per diem rates. If an overnight stay is required, reimbursement for lodging and MIC (meals and incidental expenses) are limited to the GSA (Government Services Administration) rate in effect for where the traveler stays, not where the services are performed.

A link to the FTR page is as follows: http://www.gsa.gove/travel-resources

All invoices for travel shall provide the following information and documentation:

a. Itemized cost by day for transportation (by kind of transportation): mileage; lodging; per diem;

mailto:apinvoices@fnal.gov mailto:APINVOICES@FNAL.GOV http://www.gsa.gove/travel-resources tips, and miscellaneous.

b. Receipts for any cost over $75.00.

c. Documentation showing the travel was authorized by the subcontract in general or was authorized by FRA specifically.

G5. Payment Schedule

a. FRA shall pay the Subcontractor, upon the submission of proper invoices in accordance with any requirements from the clauses referenced in Section I, the prices stipulated in this Subcontract for supplies delivered and accepted or services rendered and accepted, less any deductions provided in this Subcontract.

b. The payment schedule for this Subcontract is shall be as follows:

i. The FRA Technical Representative and the Subcontractor shall review the progress of the Subcontract Work monthly to determine the progress of the Work performed by the Subcontractor represented on that month’s invoice. The compensation due to the Subcontractor on that month’s progress payment invoice shall then be determined in accordance with the Subcontractor’s cost loaded schedule and the FRA General Terms and Conditions for Construction.

ii. The Subcontractor’s monthly progress Payment Application(s) shall clearly state as a minimum all of the following information:

Project Name:

Project Number:

Subcontract Number:

Date of Project Update for this Invoice:

Update Number (as may be applicable):

Total Contract Value: $XXXX.XX Total Dollar Value Earned to Date: $XXXX.XX Less Previous Payments: $XXXX.XX Less Previous Retention: $XXXX.XX Gross Amount Earned This Update Period: $XXXX.XX

iii. The Subcontractor shall complete and submit each of the following additional documents to FRA prior to each progress payment:

a. Application for Payment with information identified in the preceding paragraph;

b. Weekly Certified Payroll Information (to be submitted in LCPtracker);

c. Monthly total manhour report including all personnel working, including supervisory personnel, on the Fermilab site, including personnel working for all sub-tier contractors;

d. Sworn Contractor’s Affidavit identifying first- and second-tier subcontractors and suppliers;

and

e. Lien Waivers from Subcontractor’s first- and second-tier sub-subcontractors and suppliers.

If requested, the Subcontractor shall also submit lien waivers, receipts, or other vouchers showing its payments for material and labor to its Subcontractors of all tiers. Subcontractor shall submit an executed Assignment and Release in the form attached hereto prior to final payment.

iv. FRA will make progress payments at the end of each calendar month or as soon thereafter as practicable, based on estimates of the progress of the Work prepared by the Subcontractor and approved by FRA.

The Subcontractor shall email a completed Application for Payment for the period directly to the FRA Accounts Payable Office at APInvoices@fnal.gov, with copies to bquinn@fnal.gov and the Technical Representative (John Szott). The subject line of the email shall state the Subcontractor’s name and the Subcontract number.

G6. For Construction

In accordance with Attachment J-2, FRA General Terms and Conditions for Construction (06-22), Clause 2, FRA will retain 10% on invoice payments until final completion and acceptance of the Subcontractor’s work.

The construction progress schedule for this Subcontract for which payments may be invoiced against is incorporated as Attachment J-5. A table of payments will be installed in the subcontract as agreed upon between FRA and the successful Offeror.

G7. Closeout

The Subcontractor shall, as a condition of full payment, assist FRA after the completion of the work in accomplishing the administrative closeout of this Subcontract, including, as necessary or required, the furnishing of documentation and reports, the disposition of property, the disclosure of any inventions, the execution of any required assignment or release documents, the performance of any audits, and the settlement of any interim or disallowed costs.

H - Special Subcontract Requirements

H.2 FRA Furnished U.S. Government Property

FRA will not furnish any U.S. Government Property for use under this Subcontract.

H3. Insurance

The insurance requirements for this Subcontract are as shown in Attachment J-7.

H4. Sub-Tier Subcontractors and Outside Associates and Consultants

Sub-tier subcontractors and outside associates or consultants required by the Subcontractor in providing the services covered this Subcontract shall be limited to individuals or firms that are listed in Attachment J-TBD. The Subcontractor shall obtain the FRA Procurement Specialist’s written consent before making any substitution for these sub-tier subcontractors, associates, or consultants after the award of the Subcontract.

H5. Key Personnel

It is understood and agreed that the Subcontractor's key personnel designated below are considered essential to the work being performed hereunder and shall not be reassigned or replaced without prior FRA approval, except where such circumstances are beyond the reasonable control of the Subcontractor. The Subcontractor shall notify the FRA Procurement Specialist 30 days in advance and shall submit justification (including proposed substitutions with resumes) to permit evaluation of the impact on the performance of this Subcontract.

Name Title

Fill in Project Manager Fill in Superintendent Fill in Construction ES&H Manager

H6. Supervision

FRA employees shall not direct or supervise Subcontractor's employees, either directly or indirectly. The Subcontractor is solely responsible for directing and supervising its employees.

H7. Additional Requirements

Subcontractor compliance with all the orders, regulations, plans, manuals, and other directives listed in the Statement of Work and in the Incorporated Documents is a material term of this Subcontract.

Section I - Subcontract Clauses

I1. General Clauses

The general terms and conditions for this Subcontract are as listed in Attachments J-1 through J-10. The clauses listed in those Attachments shall be applicable to this Subcontract as stated therein based on the value of the Subcontract, the status of the Subcontractor, and the nature and location of the work. The Subcontractor shall flow down to sub-tier subcontractors the clauses as specified in those Attachments.

Section J - List of Documents, Exhibits, and Other Attachments

J1. Incorporated Documents

The following documents are incorporated as a part of this Subcontract.

Number Description/Title Revision and/or Date J-1 6-15-15_Wetland Permit Work_Drawings Set 10/5/2022 R2 J-2 FRA Terms and Conditions for Construction 6/2022

J-3 Unit Price Sheet TBD J-4 NSCF Wetland Permit Work 100% Final Design Submission

Specifications Booklet 10/5/2022

J-5 Construction Progress Schedule TBD

J-6 Statement and Acknowledgment Form (SF 1413) 4/2013 J-7 Insurance Requirements 6/2022 J-8 General Wage Decision No. IL20190011, Modification 10 TBD J-9 General Wage Decision No. IL20190020, Modification 5 TBD

J-10 Addendum (if any issued)

Insurance Requirements - Construction 06/2022 1

INSURANCE REQUIREMENTS FOR CONSTRUCTION SUBCONTRACTS

1. Insurance: This clause applies to work performed at the Fermi National Accelerator Laboratory (Fermilab) worksite and incorporates the insurance requirements of Fermi Research Alliance, LLC.

2. Minimum Insurance Coverage: Before undertaking any work under this Subcontract, the Subcontractor shall, except as otherwise approved by FRA, take out and maintain at its own cost and expense, insurance coverages in at least the amounts listed below, and in companies satisfactory to FRA.

LINE OF COVERAGE LIMITS

GENERAL LIABILITY

Commercial General Liability General Aggregate Limit applies per ☒Occurrence ☒Project

EACH OCCURRENCE $1,000,000

General Aggregate Products - Completed Operations Aggregate(To be maintained for at least 10 years after final completion) Coverage will be at least as broad as ISO form CG 00 01

$2,000,000 $2,000,000

AUTOMOBILE LIABILITY

Any Auto ☒Occurrence

COMBINED SINGLE LIMIT AND IN THE

AGGREGATE

Covering owned, non-owned, and hired automobiles with coverage at least as broad as ISO Business Auto Form CA 00 01

$1,000,000

EXCESS LIABILITY

☒Occurrence

For all liability coverages required following form of underlying insurance

For Subcontracts less than $3.5M

For Subcontracts greater than $3.5M

$1,000,000

$5,000,000

WORKER’S COMPENSATION

EMPLOYER’S LIABILITY

WC STATUTORY

LIMITS

OTHER As required by Illinois Law

E.L. EACH ACCIDENT $1,000,000

E.L. DISEASE EA EMPLOYEE $1,000,000

E.L. DISEASE-POLICY LIMIT $1,000,000

CONTRACTOR’S POLLUTION

LIABILITY

EACH OCCURRENCE OR PER CLAIM $1,000,000

Annual Aggregate or greater, depending on the extent of the risk given the nature and scope of work; If policy is claims-made, the retroactive date or prior acts exclusion shall pre-date the date of the Subcontract and the date services are first provided.

$1,000,000

CONTRACTOR’S PROFESSIONAL

LIABILITY

☒ Claims Made and in Aggregate

*Applicable to subcontracts that have design/build, delegated design, construction management services requirements. The retroactive date or prior acts exclusion shall pre-date the date of the Subcontract and the date services are first provided. Coverage shall be maintained for a minimum of 5 years after project completion or, if cancelled, maintain an extended reporting period for 5 years after project completion.

$1,000,000

Insurance Requirements - Construction 06/2022 2

3. Supplemental Coverages: The following coverages checked below are required:

☐ Aircraft Liability Insurance with limits not less than $25,000,000 per occurrence

☐ All Builder’s Risk, Special Form insurance or its equivalent, at replacement cost for materials, supplies, equipment, machinery and fixtures that are, or will become, part of FRA, DOE, owned property. Such insurance shall:

1. Remain in effect until completion of the project and acceptance by FRA.

2. Include coverage for earthquake, flood, ordinance or law, temporary offsite storage, debris removal, pollutant cleanup and removal, preservation of property, excavation costs, landscaping, shrubs and plants, and full collapse coverage during construction.

☐ Cargo insurance covering the value of the goods or equipment to be delivered until the goods or equipment is accepted by FRA.

☐ Installation floater covering the value of the equipment to be installed. Such insurance shall include:

1. FRA as additional insured.

2. Coverage for testing, water damage, mechanical breakdown and electrical injury.

4. Additional Insureds: All policies, except for Worker’s Compensation and Professional Liability, shall provide by appropriate language that Fermi Research Alliance, LLC, the University of Chicago, Universities Research Association, Inc., and the United States Government are additional insureds for all coverages, including but not limited to completed operations. The certificates shall state that waiver of subrogation is granted in favor of the additional insureds as required by written contract and that the insurance afforded by such policies is primary insurance, and that all rights of the insurer for contribution from other insurers are waived. For Subcontracts with a price greater than $3.5 million, additional insured coverage will be at least as broad as the coverage provided by ISO forms CG 2010 10 01 and GC 2037 10 01.

Subcontractor shall hold the Additional Insureds harmless against liability for damage to Subcontractor’s property. Subcontractor’s property policies, including but not limited to equipment, cargo and in-transit coverages, whether or not such policies are required by the Subcontract, shall include a waiver of subrogation in favor of the Additional Insureds.

5. Commercial General Liability Insurance; Exclusions/Terms Not Allowed:

a. Exclusion for claims by one insured against another insured if the exclusion is based on the fact that the other claimant is an insured and there would otherwise be coverage for the claim;

b. Exclusion for claims for property damage included within the Products-Completed Operations Hazard where the completed work or the work out of which the damage arises are performed by a subcontractor;

c. Exclusion for claims against any Additional Insured for bodily injury, including claims made by employees of the Subcontractor or sub-subcontractor(s);

d. Exclusion for claims for indemnity arising out of injury to employee(s) of the Subcontractor or sub-subcontractor(s);

Insurance Requirements - Construction 06/2022 3

e. Exclusion for claims related to earth subsidence or movement (where the work involves such hazards);

f. Exclusion for claims related to explosion, collapse or underground hazards (where the work involves such hazards); or

g. Provision that erodes limits of insurer by insurer’s payment of defense costs;

h. Provision allowing insurer to obtain reimbursement of defense costs.

6. Evidence of Insurance; Notice of Cancellation or Material Change in Coverage/Condition: The Subcontractor agrees to deliver to FRA within ten (10) days of the signing and delivery of this Subcontract, certificates evidencing compliance with the requirements herein as well as all material amendatory endorsements. Upon request, Subcontractor will deliver certificates identifying an Additional Insured as a certificate holder. The required policies must be endorsed to provide thirty (30) days’ written notice to FRA of any cancellation (or 10 days’ notice of cancellation for non-payment). Subcontractor may provide the required notice of cancellation in lieu of the insurer if FRA consents in writing to the substitution of requirement. FRA reserves the right to obtain replacement coverage if Subcontractor does not, and FRA may deduct the cost of the replacement insurance from amounts due to the Subcontractor.

The Subcontractor must agree to provide complete, certified copies of all required insurance policies if requested by FRA. Receipt or review by FRA or FRA’s representatives of any evidence of insurance coverage, failure to request such evidence of insurance coverage or failure to object to any evidence of insurance coverage that does not comply with these requirements, shall not be deemed a waiver of such requirements and shall not relieve Subcontractor of any obligation to comply with these insurance requirements.

7. Sub-Subcontractor Insurance Requirements: Insurance requirements, including the Additional Insureds requirements, shall apply to all sub-subcontractors, consultants and others doing work in connection of this Subcontract. However, Subcontractor shall determine the insurance limits required on a per sub-subcontractor basis, taking into account the particular work to be done by the sub-subcontractor or others doing work under the Subcontract, and the interrelationship of that work together with other work being conducted by the Subcontractor. Before permitting any sub-subcontractor to perform any work, Subcontractor shall obtain certificates of insurance or other suitable evidence that each sub-subcontractor maintains insurance appropriate for the particular work to be done by the sub-subcontractor.

8. Indemnification: The Subcontractor shall indemnify FRA for any expense incurred or loss suffered by FRA for the failure of the Subcontractor to comply with the insurance requirements for this

FRA General Terms and Conditions

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL

SUBMIT ANY QUESTIONS / COMMENTS WITH YOUR PROPOSAL

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FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 1

FERMI RESEARCH ALLIANCE, LLC

GENERAL TERMS AND CONDITIONS FOR CONSTRUCTION

Table of Contents

CLAUSE 1 - GENERAL PROVISIONS

1.1 DEFINITIONS

1.2 SCOPE OF SUBCONTRACT (CONSTRUCTION)

1.3 INDEPENDENT CONTRACTOR

1.4 ASSIGNMENT

1.5 ACCEPTANCE OF SUBCONTRACT

1.6 TIME IS OF THE ESSENCE

CLAUSE 2 - PAYMENT (CONSTRUCTION)

CLAUSE 3 - SUPERINTENDENCE BY SUBCONTRACTOR

CLAUSE 4 - LICENSES AND PERMITS

CLAUSE 5 - CHANGES AND MODIFICATIONS

5.1 CHANGES (CONSTRUCTION)

5.2 MODIFICATION PROPOSALS - PRICE BREAKDOWN

CLAUSE 6 - INDEMNIFICATION AND LIABILITIES

6.1 INDEMNIFICATION

6.2 ASSUMPTION OF RISK UNTIL FINAL ACCEPTANCE

6.3 THEFT

6.4 WARRANTY (CONSTRUCTION)

CLAUSE 7 - TERMINATION AND NON-WAIVER OF DEFAULTS

7.1 TERMINATION

7.2 NON-WAIVER OF DEFAULTS

CLAUSE 8 - LAWS AND REGULATIONS; DISPUTES; AND APPLICABLE LAW

8.1 LAWS AND REGULATIONS

8.2 DISPUTES

8.3 APPLICABLE LAW

CLAUSE 9 - RELEASE OF INFORMATION

CLAUSE 10 - NOTIFICATIONS

CLAUSE 11 - ENTIRE AGREEMENT AND ORDER OF PRECEDENCE

CLAUSE 12 - SITE AND FACILITIES ACCESS; SITE INVESTIGATION (CONSTRUCTION)

12.1 SITE AND FACILITIES ACCESS

12.2 SITE INVESTIGATION AND CONDITIONS AFFECTING WORK

(CONSTRUCTION)

CLAUSE 13 - ENVIRONMENT, SAFETY & HEALTH (ES&H)

CLAUSE 14 - STOP-WORK AND SUSPENSION OF WORK ORDERS (CONSTRUCTION)

14.1 STOP-WORK ORDER (FAR 52.242-15 (AUG 1989))

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 2

14.2 SUSPENSION OF WORK (CONSTRUCTION) (FAR 52.242-14 (APR 1984))

CLAUSE 15 - INSURANCE AND BONDS

15.1 INSURANCE

15.2 BONDS FOR CONSTRUCTION WORK

15.3 ADDITIONAL BOND SECURITY

CLAUSE 16 - DAVIS-BACON ACT AND CONSTRUCTION WAGES

CLAUSE 17 - SPECIAL GOVERNMENT FLOW DOWN PROVISIONS (CONSTRUCTION)

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 3

CLAUSE 1 - GENERAL PROVISIONS

1.1 DEFINITIONS

As used throughout this Subcontract, the following terms have the meanings set forth below:

“CFR” means the Code of Federal Regulations.

“Commercial product,” “commercial service,” and “commercially available off-the-shelf (COTS) item” have the meanings contained in Federal Acquisition Regulation, FAR, 2.101, Definitions.

“DEAR” means the Department of Energy Acquisition Regulation.

“DOE” means the United States Department of Energy or any duly authorized representative thereof.

“FRA” means Fermi Research Alliance, LLC, acting as operator and manager of the Fermi National

Accelerator Laboratory under United States Department of Energy Prime Contract No. DE-AC02-

07CH11359, and includes any successor to that Prime Contract or any duly authorized representatives thereof. FRA is the contracting entity for this Subcontract.

“FAR” means the Federal Acquisition Regulation.

“Fermilab” means the physical site and property that is the Fermi National Accelerator Laboratory.

“FRA Procurement Representative” shall mean the person in charge of administering this Subcontract for

FRA or his or her written designee.

“Government” means the Government of the United States acting through the United States Department of

Energy or its successor.

“Subcontract” means this Subcontract between FRA and the Subcontractor. “Sub-subcontracts” means the Subcontractor’s subcontracts. Except as otherwise provided in this Subcontract, “sub-subcontracts” includes purchase orders under this Subcontract.

“Subcontractor” means the party that has entered into this Subcontract with FRA. The lower case

“subcontractor” means sub-subcontractors.

When an article, provision, or clause in this Subcontract 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 the Subcontract;

(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 solicitation provision or contract clause 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

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 4 provision or clause is prescribed in effect at the time the solicitation was issued, unless an exception or different definition set forth in 1.1 applies.

1.2 SCOPE OF SUBCONTRACT (CONSTRUCTION)

This Subcontract is entered into under FRA’s Prime Contract No. DE-AC02-07CH11359 with DOE for the operation and management of the Fermi National Accelerator Laboratory.

The scope of this Subcontract is construction as set forth in the Subcontract, including the Statement of

Work, and any incorporated documents.

Subcontractor shall perform the work in a workmanlike manner, using new materials unless otherwise authorized by the specifications, in conformance with the specifications.

1.3 INDEPENDENT CONTRACTOR

The Subcontractor is, and shall act as, an independent Subcontractor and the Subcontractor shall not be or act as the agent, employee or servant of FRA or the Government. Without limiting the generality of the foregoing, it is understood and agreed that:

(a) All persons employed by the Subcontractor in the performance of this agreement shall be employees of the Subcontractor and not employees of FRA or the Government,

(b) This Subcontract does not create a joint employer relationship for FRA or the Government; and

(c) The Subcontractor shall not enter into any contract with a third party which purports to obligate or bind FRA or the Government.

1.4 ASSIGNMENT

Neither this Subcontract nor any interest therein nor claim thereunder shall be assigned or transferred by the Subcontractor except as expressly authorized in writing by FRA. Subcontractor shall inform FRA of the transfer of Seller’s assets, rights, obligations and/or liabilities under this Agreement to a separate legal entity and submit written proof of such transfer. Subcontractor also shall inform FRA of a corporate name change and submit documents as proof of such a change. The parties must enter into and execute a

Novation Agreement or Name Change Agreement for assignment by Subcontractor to be effective. FRA may assign, without Subcontractor’s consent, the whole or any part of this Subcontract to the Government or its designee or to a successor contractor for operation and management of the Fermi National

Accelerator Laboratory, and in such event this Subcontract shall continue in full force and effect.

1.5 ACCEPTANCE OF SUBCONTRACT

The Subcontractor’s written acceptance of this Subcontract or the performance of any portion of this

Subcontract shall constitute the Subcontractor’s unqualified acceptance of this Subcontract and all the

Subcontract’s terms and conditions. Any alterations made to the documents comprising this Subcontract or any conditions imposed by the Subcontractor upon its written acceptance of this Subcontract are not accepted, shall only constitute a proposal for modification of the Subcontract, and shall have no effect on the validity or the Subcontractor’s acceptance of this Subcontract and its terms and conditions, anything to the contrary notwithstanding.

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1.6 TIME IS OF THE ESSENCE

Subcontractor acknowledges and agrees that time is of the essence in the performance of the work required by the Subcontract.

CLAUSE 2 - PAYMENT (CONSTRUCTION)

FRA shall pay the Subcontractor the Subcontract price in accordance with the terms and conditions of this

Subcontract. FRA shall make progress payments monthly as the work proceeds, or at more frequent intervals as determined by FRA, in its sole discretion, for work performed that meets the standards of quality established under the Subcontract, and as approved by FRA. Upon commencement of the work, the

Subcontractor shall furnish a breakdown of the total Subcontract price showing the amount included therein for each principal category of the work, which shall substantiate the payment amount requested to provide a basis for determining progress payments, in such detail as requested by FRA. Such request for payment shall be certified as set forth below and supported by all data substantiating the Subcontractor’s right to payment as the Subcontract and the FRA may require and shall reflect the retainage set forth below.

Payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the work with the written consent of FRA. Material delivered to the

Subcontractor at locations other than the site may also be taken into consideration if:

(a) Consideration is specifically authorized by this Subcontract;

(b) The Subcontractor furnishes satisfactory evidence that it has acquired title to such material and that the material will be used to perform this Subcontract;

(c) The Subcontractor provides for the off-site storage at a secure, bonded and insured facility in such a manner that the material is segregated from material owned by others and is clearly labeled as material owned by Fermi Research Alliance, LLC on behalf of the U.S. Department of Energy;

and

(d) The Subcontractor maintains responsibility for transportation to and installation in the project, and insuring the material until it is installed in the project.

Along with each request for progress payments, the Subcontractor shall furnish the following certification, or payment shall not be made:

I hereby certify, to the best of my knowledge and belief, that –

(a) The amounts requested are only for performance of the work in accordance with the drawings, specifications, terms, and conditions of the Subcontract;

(b) Payments to sub-subcontractors and suppliers have been made from previous payments received under the Subcontract, and timely payments will be made from the proceeds of the payment covered by this certification, in accordance with sub-subcontract agreements and the requirements of chapter 39 of Title

31, United States Code; and

(c) This request for progress payments does not include any amounts which the Subcontractor intends to withhold or retain from a sub-subcontractor or supplier in accordance with the terms and conditions of the sub-subcontract.

(Name)

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 6

(Title)

(Date)

If the Subcontractor, after making a certified request for progress payments, discovers that a portion or all of such request constitutes a payment for performance by the Subcontractor that fails to conform to the drawings, specifications, terms, and conditions of this Subcontract (hereinafter referred to as the “unearned amount”), the Subcontractor shall –

(a) Notify FRA of such performance deficiency; and

(b) Be obligated to pay FRA an amount (computed by FRA in the manner provided in 31

U.S.C.3903(c)(1)) equal to interest on the unearned amount from the date of receipt of the unearned amount until—

(i) The date the Subcontractor notifies FRA that the performance deficiency has been corrected; or

(ii) The date the Subcontractor reduces the amount of any subsequent certified request for progress payment by an amount equal to the unearned amount.

In making such progress payments, there shall be retained 10 percent of the estimated amount until final completion and acceptance of the Subcontract work. However, if FRA finds that satisfactory progress is being achieved, it may authorize the making of payments in which a lesser percentage is retained. When the work is substantially complete, FRA shall retain an amount it considers adequate for the protection of the Government, and may release to the Subcontractor all or any portion of any excess amount. Also, on completion and acceptance of each separate building, public work, or other division of the Subcontract, on which the price is stated separately in the Subcontract, payment may be made therefore without retention of a percentage if authorized by FRA in writing.

All material and work covered by progress payments made shall at the time of payment become the sole property of the Government, but this provision shall not be construed as (a) relieving the Subcontractor from the sole responsibility for all material and work upon which payments have been made or the restoration of any damaged work; or (b) waiving the right of FRA to require the fulfillment of all terms of the

Subcontract.

In making these progress payments, FRA shall, upon request, reimburse the Subcontractor for the amount of premiums paid for performance and payment bonds (including coinsurance and reinsurance agreements, when applicable) after the Subcontractor has furnished evidence of full payment to the surety. The retain-age provisions above shall not apply to that portion of progress payments attributable to bond premiums.

Final payment of the Subcontract price shall not become due to the Subcontractor under this Subcontract until FRA’s receipt and acknowledgement of (a) completion and FRA’s acceptance of all work; (b) presentation of a properly executed pay application; (c) Subcontractor’s delivery to FRA of all required deliverables; (d) evidence that payment to the sub-subcontractors has been made in full or will be made in full upon receipt of final payment; (e) a certificate evidencing that insurance required by the Subcontract to remain in force and effect after final payment and will not be cancelled, allowed to expire or materially modified until at least 30 days’ written notice has been provided to the FRA; (f) if required by FRA, other data establishing payment or satisfaction of obligations, such as receipts, and (g) presentation of a release of all claims against FRA, including claims against funds due FRA and the payment bond, and claims arising by virtue of this Subcontract, other than claims in stated amounts that the Subcontractor has specifically excepted from the operation of the release. A release may also be required of the assignee if the

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 7

Subcontractor’s claim to amounts payable under this Subcontract has been assigned under the Assignment of Claims Act of 1940 (31 U.S.C.3727 and 41 U.S.C. 15).

Notwithstanding any provision of this Subcontract, progress payments shall not exceed 80 percent on work accomplished on un-definitized Subcontract actions. A “Subcontract action” is any action resulting in a

Subcontract, as defined in FAR Subpart 2.1, including Subcontract modifications that are within the scope and under the terms of the Subcontract, such as Subcontract modifications issued pursuant to the Changes clause, or funding and other administrative changes.

FRA may withhold payment from a request for progress payment to the extent reasonably necessary to protect FRA and the Government because of (a) defective work not remedied; (b) third-party claims filed;

(c) failure of Subcontractor to properly make payments to sub-subcontractors, vendors or suppliers; (d) reasonable evidence that the work cannot be completed for the unpaid balance of the Subcontract price;

(e) damaged caused by Subcontractor to FRA, the Government or a FRA separate contractor’s work; (f) reasonable evidence that the work will not be completed by the time for completion set forth in the

Subcontract, including failure by the Subcontractor to provide an updated schedule or an acceptable recovery schedule; or (g) failure to perform the work in accordance with the Subcontract, terms and conditions, drawings and specifications.

CLAUSE 3 - SUPERINTENDENCE BY SUBCONTRACTOR

At all times during performance of this Subcontract, and until the work is completed and accepted, the

Subcontractor shall directly superintend the work or assign and have on the worksite a competent superintendent and any necessary assistants, each of whom must be satisfactory to FRA. The superintendent shall not be changed except with the consent of FRA, unless the superintendent proves to be unsatisfactory to the Subcontractor or ceases to be in its employ. The superintendent shall have the authority to act for the Subcontractor in the Subcontractor’s absence; and all notices, directions, and instructions given to the superintendent shall be as binding as if given to the Subcontractor.

The Subcontractor shall give efficient supervision of the work, using its best skill and attention. It shall carefully study and compare all drawings, specifications, and other instructions and shall at once report to

FRA any error, inconsistency, or omission that it may discover.

CLAUSE 4 - LICENSES AND PERMITS

The Subcontractor shall maintain all applicable licenses and permits in good standing with the appropriate jurisdiction or governing body throughout the term of this Subcontract. Subcontractor shall immediately notify FRA of any change in the good standing status of its licenses or permits. Failure by the Subcontractor to maintain applicable licenses in good standing or permits is cause for immediate termination of this Subcontract by FRA.

CLAUSE 5 - CHANGES AND MODIFICATIONS

5.1 CHANGES (CONSTRUCTION)

FRA may, at any time, without notice to the sureties, by written order designated or indicated to be a change order, make any change in the work within the general scope of the Subcontract, including changes:

(a) In the specifications (including drawings and designs);

(b) In the method or manner of performance of the work;

(c) In the FRA furnished facilities, equipment, materials, services, or site; or

(d) Directing acceleration in the performance of the work.

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 8

Any other written order (which, as used in this paragraph includes written direction, instruction, interpretation, or determination) from FRA that causes change shall be treated as a change order under this clause, provided that the Subcontractor gives FRA written notice stating (a) the date, circumstances, and source of the order and (b) that the Subcontractor regards the order as a change order. The

Subcontractor shall proceed promptly with changes in the work unless otherwise provided in the change order.

Except as provided in this clause, no order, statement, or conduct of FRA shall be treated as a change under this clause or entitle the Subcontractor to an equitable adjustment. No course of conduct or dealing between the parties, no express or implied acceptance of alterations or additions to the work and no claim that FRA has been unjustly enriched by an alteration or addition to the work, whether there is any unjust enrichment, shall be the basis of any claim for adjustment in compensation due the Subcontractor or in connection with the work or for adjustment in any time period provided for under the Subcontract. Moreover, the Subcontractor hereby waives and forfeits all claims that any work, services or other activities were performed pursuant to any contract or other agreement separate from the Subcontract. Subcontractor shall not receive any additional compensation or any adjustment in the Subcontract price or time of performance in connection with any work, services or other activities of the Subcontractor pertaining to the work unless such work, services or other activities is authorized in a change order or a written directive, as more specifically described in this section.

If any change under this clause causes an increase or decrease in the Subcontractor’s cost of, or the time required for, the performance of any part of the work under this Subcontract, and the Subcontractor properly provides notice of the change and submits all required support for such change to FRA in accordance with this section and the Subcontract, FRA shall make an equitable adjustment and modify the Subcontract in writing. However, except for an adjustment based on defective specifications, no adjustment for any change shall be made for any costs incurred more than 30 days before the Subcontractor gives written notice as required. In the case of defective specifications for which FRA is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Subcontractor in attempting to comply with the defective specifications.

The Subcontractor must assert its right to an equitable adjustment under this clause and submit its proposal in support thereof, within 30 days after (a) receipt of a written change order or (b) the furnishing of a written notice submitting to FRA a written statement describing the general nature and amount of the proposal, unless this period is extended by FRA.

No claim by the Subcontractor for an equitable adjustment based on changes made by FRA shall be allowed if asserted after final payment under this Subcontract. Adjustments to Subcontract price and time for performance shall be memorialized in a Supplemental Agreement or Subcontract Modification. Each

Supplemental Agreement or Subcontract Modification shall constitute a final settlement of all matters relating to the change in the work which is the subject of the change order, including, but not limited to, all adjustments to the Subcontract price and time for performance, if any, included with that change order.

5.2 MODIFICATION PROPOSALS - PRICE BREAKDOWN

The Subcontractor, in connection with any proposal made for a Subcontract modification, shall furnish a price breakdown, itemized as required by FRA. Unless otherwise directed, the breakdown shall be in sufficient detail to permit an analysis of all material, labor, equipment, sub-subcontract, and overhead costs, as well as profit, and shall cover all work involved in the modification, whether such work was deleted, added or changed. Any amount claimed for sub-subcontracts shall be supported by a similar price breakdown. In addition, if the proposal includes a time extension, a justification therefore shall also be furnished. The justification shall be furnished by the date specified by FRA.

FRA GENERAL TERMS & CONDITIONS (CONSTRUCTION) (06/2022) Page 9

When costs are a factor in any determination of a Subcontract price adjustment under any clause of this

Subcontract, such costs shall be in accordance with the contract cost principles and procedures in Subpart

31.2 of the FAR and Subpart 931.2 of the DEAR in effect on the date of this Subcontract.

CLAUSE 6 - INDEMNIFICATION AND LIABILITIES

6.1 INDEMNIFICATION

To the extent permitted by law, the Subcontractor shall indemnify and hold harmless FRA, The…