DMCH_CMc_Solicitation_Amend_3_THE_AGREEMENT_(CMc101)_180213.pdf

Document: CMc101 / DEC 2016 (The Agreement) Pages 1 of 65

Construction Manager as Constructor (CMc) Contract for New United States Federal Courthouse in Des Moines Iowa

The Agreement

Table of Contents

I. Project Information A. Project Summary B. The Contract C. Period of Performance D. Work Conditions/Site Requirements E. Authorized Representatives F. Liquidated Damages Rate G. Buy American Exceptions H. Statement of Work, Specifications, Drawings, Exhibits, and Other Attachments

II. Prices A. Basis of Pricing B. Contract Price Form

III. Terms and Conditions A. Definitions B. Contractor Responsibilities C. Contractor Management and Personnel D. Project Schedule E. Extensions of Time F. Interpretation of Specifications and Drawings G. Submittals H. Substantial Completion and Contract Completion I. Use and Possession Prior to Substantial Completion J. Finality of Contract Modifications K. Liquidated Damages L. Insurance Requirements M. Performance and Payment Bonds N. Order of Precedence O. Administrative Matters P. Non-Compliance with Contract Requirements Q. Safeguarding Sensitive Data and Information Technology Resources R. Apprenticeship Plans S. Equal Employment Opportunity Plan T. Additional Terms and Conditions

IV. Contract Clauses A. Public Buildings Services Contract Clauses B. Clauses Incorporated in Full Text C. Clauses Incorporated by Reference D. Subcontract Requirements

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I. Project Information

I.A. Project Summary

This is a Construction Manager as Constructor (CMc) Contract, and includes requirements for the Design Phase Services and the option(s) for Construction Services as a Guaranteed Maximum Price (GMP) Option.

The General Services Administration (GSA) intends to construct a new U.S. Courthouse in Des Moines Iowa. The planned project delivery method is Construction Manager as Constructor (CMc). The CMc contractor shall provide a new courthouse on a government-owned site in Des Moines Iowa and will be approximately 229,000 gross square feet, including 42 inside parking spaces, in Des Moines, Iowa. The United States District Court, United States Bankruptcy Court, United States Probation And Pretrial Services, United States Marshals Service and General Services Administration will occupy the facility. The space will include 5 District Courtrooms, 2 Magistrate Courtrooms and 2 Bankruptcy Courtrooms and their associated supporting spaces, such as judge's chambers, jury deliberation facilities, jury assembly, grand jury suites, holding cells, etc. Office space will be provided for the other aforementioned tenants.

I.B. The Contract

(1) The Contract consists of the SF 1442 (and Supplement to the SF 1442), the Agreement, the Statement of Work, Specifications, Drawings, Exhibits, Amendments, Modifications, and other Attachments identified herein (collectively, the Contract Documents). The Contract contains the entire agreement of the Parties, and no prior written or oral agreement, express or implied, shall be admissible to contradict or modify any part of the Contract.

(2) The Construction Documents, as that term is defined in this Agreement, shall be deemed incorporated into the Contract Documents upon acceptance of all deliverables described in the Design Phase Services Statement of Work, and shall supersede and replace all Specifications and Drawings contained in the Contract Documents at award of the Contract.

(3) In consideration for, and upon condition of, the Contractor's completion of the Design Phase Services, GSA shall pay the Contractor the firm-fixed-price for Design Phase Services, subject to the terms and conditions set forth in this Contract. If the GMP Option is exercised, then the Contractor shall be required to complete the Construction Services. In consideration for completion of the Construction Services under the GMP Option, the Contractor shall be entitled to the allowable cost of performance not to exceed the GMP, subject to the terms and conditions set forth in this Contract.

(4) The construction work includes all construction work on the project, including the Work performed under the GMP Option, any firm-fixed-price options, or any Contract modifications for construction work. Any construction work performed under this Contract includes all labor, materials, equipment, tools, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution of the construction work described in and reasonably inferable from the Contract Documents, whether temporary or permanent.

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I.C. Period of Performance

(1) Design Phase Services

(a) Commencement of Design Phase Services. The Contractor shall commence performance of the Design Phase Services within 10 days after the Contractor receives the Notice to Proceed (NTP).

(b) Completion of Design Phase Services. Design Phase Services shall be complete upon acceptance of all deliverables required by the Design Phase Services Statement of Work.

(2) Construction Services (the Work)

(a) Commencement of the Work. If the Government exercises the GMP Option, the Contractor shall commence performance of the construction within 10 days after the Contractor receives the Notice to Proceed (NTP) for the Work.

(b) Substantial Completion. If the Government exercises the GMP Option, the Contractor shall achieve Substantial Completion of the Construction Phase Work, as that term is defined in this Agreement, no later than 1095 calendar days from issuance of Notice to Proceed (NTP)) for the Work.

(3) Contract Completion.-Construction Services. If the Government exercises the GMP Option, the Contractor shall achieve Contract Completion, as the term is defined in this Agreement, within 60 calendar days of Substantial Completion.

I.D. Work Conditions/Site Requirements

The work under this requirement is for new construction at a vacant site.

I.E. Authorized Representative

(1) This Contract is between the United States of America, acting by and through the Administrator of General Services (GSA), and the Contractor (the Parties). References in this Contract to "the Owner" or "the Government" shall be understood to refer to GSA. The following individual is designated as the only authorized GSA representative under this Contract unless other warranted contracting officers are designated in writing:

Contracting Officer Name: Michael P. Flanigan Address: 2300 Main St, Kansas City MO 64108 Telephone: 816.823.4912 Email: michael.flanigan@gsa.gov

(2) GSAR 552.236-71, Authorities and Limitations, is incorporated by reference in this Contract.

I.F. Liquidated Damages Rate

In accordance with the “Liquidated Damages” clause in Section III (Terms and Conditions), liquidated damages shall be calculated at the rate of $4,769.00 per calendar day.

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I.G. Buy American Exceptions

For the applicable Buy American clause and any exceptions, see Section IV of this Agreement.

I.H. Statement of Work, Specifications, Drawings, Exhibits, and Other Attachments

The following documents are incorporated by reference into this Contract:

(1) Statement of Work for Contract No. IA0089ZZ, Dated 02/13/2018

(2) Division I Specifications for Contract No. IA0089ZZ, Dated 02/13/2018

(3) Program of Requirements for Contract No. IA0089ZZ, Dated 02/02/2018

(4) Wage Determination IA180142, Dated 1/19/2018

(5) Small Business Subcontracting Plan

II. Prices II.A. Basis of Pricing

(1) Contract Prices. All Contract prices set forth in this Section include all costs, including, but not limited to the cost of work performed by subcontractors and consultants, indirect costs, fees, expenses, taxes, and profit, necessary to complete the Design Phase Services (Base Contract), and firm-fixed-price options for construction work, if any, in accordance with the Contract Documents. For pricing information regarding the GMP Option, see Paragraph IV.A., Construction Manager as Constructor (CMc) Guaranteed Maximum Price with CMc Contingency Allowance and Shared Savings.

(2) Knowledge of Conditions Affecting Price. FAR 52.236-3, Site Investigations and Conditions Affecting the Work, is incorporated by reference in this Contract. The Contractor is presumed to have established all prices with knowledge of general and local conditions that may affect the cost of Contract performance at the site where the Work is to be performed, to the extent that such information is reasonably obtainable.

(3) Unit Prices and Allowances. If any portion of the construction work is to be performed on a unit price basis (Unit Priced Work), the unit price established in the Contract shall include all costs of coordinating and incorporating the Unit Price Work into the construction work. The Contractor shall only be obligated to perform Unit Priced Work to the extent that an allowance has been established in an amount sufficient to compensate the Contractor for such Unit Priced Work at the established unit prices. The Contractor shall be obligated to perform such work in excess of a unit quantity for which an Allowance is sufficient only if directed by the Contracting Officer in writing. The Contractor shall be bound to the unit price or prices set forth herein in all equitable adjustments for changes including unit priced work, and no markups shall be applied to such unit prices.

(4) Firm-fixed-price Options. If any portion of the construction work is to be performed upon the timely exercise of a firm-fixed-price option, the option price shall include all costs of coordinating and incorporating such work into the remaining construction work. An adjustment to the

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Contract price for such additional work shall be computed solely on the basis of the option price or prices set forth herein.

(5) Work Packages. The Contractor and the Government may agree to develop firm-fixed-price early work packages for construction work that stand alone from the remainder of the Work.

The Parties must agree bilaterally to the scope, schedule and pricing for any such work package, and Contract must be modified accordingly. If such work package reduces the scope of the Construction Services under the GMP Option, the Estimated Cost of the Work (ECW) shall be reduced, and the CMc Contingency Allowance (CCA), Fee and GMP shall be adjusted accordingly. These early work packages become definitive firm-fixed-price line items in the Contract, and they shall include specific completion milestones.

(6) Bid Rates. If this Contract includes Bid Rates to be used in determination of equitable adjustments (e.g., overhead, profit, daily rates for time-related costs), such rates shall be deemed to include all costs recoverable as components of an equitable adjustment consistent with the requirements, definitions, and exclusions applicable to equitable adjustments set forth in this Contract, and consistent with the Contractor's cost accounting practices. Unless otherwise specified, the bid rates shall be deemed to include only the Contractor's costs, and not the costs of any subcontractors.

(7) Shared Savings. The Contractor shall be entitled to 30% of any Shared Savings (see Paragraph IV.A., Construction Manager as Constructor (CMc) Guaranteed Maximum Price with CMc Contingency Allowance and Shared Savings.

II.B. Contract Price Form

Offeror shall complete the attached Standard Form (SF) 1442 and Supplement to Standard Form (SF) 1442 – Pricing Form.

III. Terms and Conditions III.A. Definitions

(1) "Design Phase" means the phase of the Project during which the design is developed and completed.

(2) "Design Phase Services" means design phase construction management services, constructability reviews and other related services as described in the Statement of Work.

(3) "Construction Documents" mean the 100% complete specifications and construction drawings developed during the Design Phase.

(4) "Work" means the Construction Services under the GMP Option.

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III.B. Contractor Responsibilities

(1) During the Design Phase Services, it is the Contractor's responsibility to familiarize itself with all design information (e.g., draft specifications, drawings, etc.) provided for its review. The Contractor shall be responsible for satisfying itself that the Project as described in the design information is constructible using commercially practicable means and methods; that the construction work is described in the design documents with sufficient completeness to enable pricing of a complete Project within the GMP; and that the manner of presentation and organization of information in the design documents enables accurate estimation of the Cost of the Work. Prior to establishment of the final ECW, the Contractor shall bring to the Contracting Officer's attention all instances that it has discovered or has been made aware of where omission of design information affects the Contractor's ability to accurately estimate the Cost of the Work.

(2) The Contractor is responsible for performing the Design Phase Services in accordance with the Statement of Work, and the Contractor shall submit to the Contracting Officer all deliverables and reports in accordance with the Statement of Work.

(3) The Contracting Officer has sole discretion to accept or reject all or part of any proposal by the Contractor related to design.

(4) Within 30 days after award, the Contractor shall provide a schedule for the Design Phase Services in Gantt chart format indicating tasks and milestones for deliverables.

(5) Commencement, Prosecution, and Completion of Work FAR 52-211-10, Commencement, Prosecution, and Completion of Work, is supplemented as follows:

Upon exercise of the GMP Option or issuance of a modification commencing construction work, the Contractor shall not commence performance until the Contracting Officer has issued NTP for the Work. The Contractor shall diligently prosecute the construction work so as to achieve Substantial Completion within the time specified in Paragraph I.C. of the Agreement. If this Contract specifies different completion dates for different phases or portions of the construction work, the Contractor shall diligently prosecute the Work so as to achieve Substantial Completion of such phases or portions of the Work within the times specified.

(6) For the purposes of FAR 52.236-1, Performance of Work by the Contractor, the Contractor shall perform at least 12 percent of the construction work. The Contractor shall furnish the Contracting Officer within 10 days after the award of the construction option, a letter outlining the items of work he will perform with his own forces

(7) Unless otherwise expressly stated in the Contract, the Contractor shall be responsible for all means and methods employed in the performance of the Contract.

(8) The Contractor shall be responsible for coordinating all activities of subcontractors. This responsibility includes coordination of: preparation of shop drawings produced by different subcontractors where their work interfaces or may potentially conflict or interfere and the

(The Agreement) Pages 7 of 65 installation of such work; scheduling of work by subcontractors; and use of the Project site for staging and logistics.

(9) Where installation of separate construction work components as shown in the Contract Documents will result in conflict or interference between such components or with existing conditions, including allowable tolerances, it is the Contractor's responsibility to bring such conflict or interference to the attention of the Contracting Officer and seek direction before fabrication, construction, or installation of any affected construction work. If the Contractor fabricates, constructs, or installs any work prior to receiving such direction, the Contractor shall be responsible for all cost and time incurred to resolve or mitigate such conflict or interference.

(10) The Contractor must submit a project specific safety plan before commencing construction work.

(11) Where Drawings show construction work without specific routing, dimensions, locations, or position relative to other work or existing conditions, and such information is not specifically defined by reference to Specifications or other information supplied in the Contract Documents, the Contractor is responsible for routing, dimensioning, and locating such work in coordination with other work or existing conditions in a manner consistent with Contract requirements.

(12) It is not the Contractor's responsibility to ensure that the Contract Documents comply with applicable laws, statutes, building codes and regulations. If it comes to the attention of the Contractor that any of the Contract Documents do not comply with such requirements, the Contractor shall promptly notify the Contracting Officer in writing. If the Contractor performs any of the construction work prior to notifying and receiving direction from the Contracting Officer, the Contractor shall assume full responsibility for correction of such work, and any fees or penalties that may be assessed for non-compliance.

(13) The Contractor shall immediately bring to the Contracting Officer's attention any hazardous materials or conditions not disclosed in the Contract Documents discovered by or made known to the Contractor during the performance of the Contract

(14) The Contractor shall be liable to the Government in accordance with applicable law for all damages to the Government caused by the Contractor’s negligent performance of services furnished under this Contract. Neither the Government’s review or acceptance of, nor payment for, the design services required under this Contact shall be construed as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract.

III.C. Contractor Management and Personnel

(1) The Contractor shall designate a principal of the firm or other senior management official to provide executive oversight and problem resolution resources to the Project for the entire life of the Contract, including the GMP Option.

(2) FAR 52.236-6, Superintendence by the Contractor, is supplemented as follows:

(a) The Contractor shall employ sufficient management and contract administration resources, including personnel responsible for project management, field superintendence, change order administration, estimating, coordination, inspection, and quality control, to ensure the proper execution and timely completion of the construction work.

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(b) The Contractor shall employ, and require its subcontractors to employ, qualified personnel to perform the construction work. The Government reserves the right, at no additional cost to the Government, to exclude, or remove from the site or building, any personnel for reasons of incompetence, carelessness, or insubordination, who violate rules and regulations concerning conduct on federal property, or whose continued employment on the site is otherwise deemed by the Government to be contrary to the public interest.

(c) Repeated failure or excessive delay by the Contractor to provide qualified personnel shall be deemed a default for the purposes of the Termination for Default clause.

III.D. Project Schedules

(1) The Contractor shall develop a Design Phase Project Schedule to plan, coordinate, and perform the services during the design phase. This schedule shall be produced using widely used, commercially available computer software such as Microsoft Project,®. The schedule will be coordinated with the Architect's schedule of design submissions and show milestones for completion of Design Reviews and cost reconciliation. It will also include a milestone for establishing the ECW for the construction option.

(2) The Contractor shall use a Critical Path Method ("CPM") Construction Project Schedule to plan, coordinate, and perform the Work under the GMP Option. The Construction Project Schedule shall be produced using widely used, commercially available computer software that is capable of generating and monitoring a CPM schedule and is compatible with Meridian Proliance.® For example, compatible software includes Microsoft Project,® Primavera SureTrak,® and Primavera Project Planner.®

(3) The Construction Project Schedule, (hereinafter, the Project Schedule) shall be a rational, reasonable and realistic plan for completing the Construction Phase and shall conform to requirements specified in this clause and elsewhere in this Contract.

(4) The Contractor understands and acknowledges that the preparation and proper management of the Project Schedule is a material component of the Work, and that the Contract price includes all costs of compliance with Project Schedule requirements.

(5) The Project Schedule shall depict all activities necessary to complete the Construction Phase, including, as applicable, all submittal and submittal review activities, all procurement activities, and all field activities, including mobilization, construction, start-up, testing, balancing, commissioning, and punchlist. Activities shall be sufficiently detailed and limited in duration to enable proper planning and coordination of the Work, effective evaluation of the reasonableness and realism of the Project Schedule, accurate monitoring of progress, and reliable analysis of schedule impacts.

(6) Within 30 days after establishing the final ECW, the Contractor shall submit its Project Schedule to the Contracting Officer, together with a written narrative describing the major work activities, activities on the critical path, and major constraints underlying the sequence and logic of the Project Schedule. The Contractor shall submit the Project Schedule in both electronic and hardcopy print format.

(7) The Contractor should anticipate that the Project Schedule will be subject to review and revision and the Contractor shall devote sufficient resources for meetings, revisions, and resubmissions of the Project Schedule to address exceptions taken by the Contracting Officer.

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The Contractor understands and acknowledges that the purpose of the review and resolution of exceptions is to maximize the usefulness of the Project Schedule for the Parties during Contract performance.

(8) Activity durations shall be based upon reasonable and realistic allocation of the resources required to complete each activity, given physical and logistical constraints on the performance of the Work. All logic shall validly reflect physical or logistical constraints on relationships between activities. Except for the first and last activities in the Project Schedule, each activity shall have at least one predecessor and one successor relationship to form a logically connected network plan from NTP to the Contract Completion date.

(9) The Project Schedule shall incorporate milestone events specified in the Contract, including, as applicable, NTP, Substantial Completion, and milestones related to specified work phases and site restrictions. The Project Schedule shall also include Contractor-defined milestones to identify target dates for critical events, based upon the Contractor's chosen sequence of work.

(10) Unless a shorter period for updates is specified elsewhere, the Contractor shall update the Project Schedule monthly to reflect its actual progress in completing the Work, and submit the updated Project Schedule to the Contracting Officer within five working days of the end of each month or other specified period.

(11) If the Contractor revises the Project Schedule after the commencement of Work, the Contractor shall provide in writing to the Contracting Officer a narrative describing the substance of the revision, the rationale for the revision, and the impact of the revision on the projected Substantial Completion date and the available float for all activities. The Contractor shall only revise prospective activities, durations and logic, but addition of detail to prospective activities shall not be deemed a revision if the overall duration of the detailed activity does not change.

(12) If at any time the Contracting Officer finds that the Project Schedule does not comply with any Contract requirement, the Contractor shall, upon written notice of exceptions taken by the Contracting Officer, revise the Project Schedule, adjust activity progress, or provide sufficient information demonstrating compliance. Regardless of whether the Contracting Officer takes any such exception, the Contractor shall not be relieved of its responsibility for the rationality, reasonableness or realism of the Project Schedule, or its responsibility to achieve Substantial Completion within the time specified by this Contract.

(13) If the Contractor fails to sufficiently address the Contracting Officer's exceptions to the Project Schedule within thirty calendar days of written notice of same, the Contracting Officer may withhold retainage until the Project is Substantially Complete or until such time as the Contractor has complied with Project Schedule requirements.

(14) The Contracting Officer shall be entitled, but not required, to rely upon the Project Schedule to evaluate the Contractor's progress, evaluate entitlement to extensions of time and determine the criticality or float of any activities described in such Project Schedule.

III.E. Extensions of Time

FAR 52.211-13, Time Extensions, is supplemented as follows:

(1) If the Contractor requests an extension of the time for Substantial Completion, the Contractor shall base its request on analysis of time impact using the Project Schedule as its baseline, and shall propose as a new Substantial Completion date to account for the impact.

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The Contractor shall submit a written request to the Contracting Officer setting forth facts and analysis in sufficient detail to enable the Contracting Officer to evaluate the Contractor's entitlement to an extension of time.

(2) The Contractor shall only be entitled to an extension of time to the extent that (a) Substantial Completion of the Work is delayed by causes for which the Contractor is not responsible under this Contract, and (b) the actual or projected Substantial Completion date is later than the date required by this Contract for Substantial Completion.

(3) The Contractor shall not be entitled to an extension of time if the Contractor has not updated the Project Schedule in accordance with this Contract.

(4) The Government shall not be liable for any costs to mitigate time impacts incurred by the Contractor that occur less than 30 calendar days after the date the Contractor submits a request for extension of time in compliance with this clause.

III.F. Interpretation of Specifications and Drawings

FAR 52.236-21, Specifications and Drawings for Construction, and GSAR 552.236-77, Specifications and Drawings are supplemented as follows:

(1) For the purposes of FAR 52.236-21, GSAR 552.236-77 and this section (“Interpretation of Specifications and Drawings”), specifications and drawings refer only to the Construction Documents.

(2) Different requirements within the Contract Documents shall be deemed inconsistent only if compliance with both cannot be achieved.

(3) Unless otherwise noted, the drawings shall be interpreted to provide for a complete construction, assembly, or installation of the Work, without regard to the detail with which material components are shown in the drawings.

III.G. Submittals

FAR 52.236-21, Specifications and Drawings for Construction, GSAR 552.236-78, Shop Drawings, Coordination Drawings, and Schedules, and GSAR 552.236-79, Samples are supplemented as follows:

(1) During performance of the construction work, the Contractor shall prepare and submit to the Contracting Officer shop drawings, samples, calculations, product information, mockups, and other submittals (collectively, "submittals") demonstrating compliance with Contract requirements for all work components as specified elsewhere in this Contract. If particular submittal requirements are not specified for a component of the work, the Contractor shall prepare submittals for such work as directed by the Contracting Officer.

(2) The Contractor shall not proceed with construction work or procure products or materials described or shown in submittals until the Contracting Officer has indicated approval of the submittal. Any work or activity undertaken prior to approval shall be at the Contractor’s risk;

should the Contracting Officer subsequently determine that the work or activity does not comply with the Contract, the Contractor shall be responsible for all cost and time required to comply with the Contracting Officer's determination. The Contracting Officer shall have the right to order the Contractor to cease execution of construction work for which submittals have not been

(The Agreement) Pages 11 of 65 approved. The Government shall not be liable for any cost or delay incurred by the Contractor attributable to the proper exercise of this right.

(3) The Contractor shall be entitled to receive notice of action on submittals within a reasonable time, given the volume or complexity of the submittals and the criticality of the affected activities to Substantial Completion as may be indicated in the Project Schedule; provided, that the Contractor shall not be entitled to receive notice of action on submittals containing variations from Contract requirements in less than twenty (20) business days.

III.H. Substantial Completion and Contract Completion

FAR 52.211-10, Commencement, Prosecution, and Completion of Work, FAR 52.211-12, Liquidated Damages (Construction), and GSAR 552.246-72, Final Inspection and Tests, are supplemented as follows:

(1) For the purposes of FAR 52.211-10, Commencement, Prosecution and Completion of Work, and FAR 52.211-12, Liquidated Damages (Construction) the "Work" is the Work under the GMP Option. The Work shall be deemed complete when it is “Substantially Complete.” For phased construction, each phase is subject to a separate Substantial Completion date, as established in this Contract. The Work shall be deemed "Substantially Complete" if and only if the Contractor has completed the Work and related Contract obligations in accordance with the Contract Documents, such that the Government may enjoy the intended access, occupancy, possession, and use of the entire Work without impairment due to incomplete or deficient work, and without interference from the Contractor's completion of remaining work or correction of deficiencies in completed work. In no event shall the Work be deemed Substantially Complete if all fire and life safety systems are not tested and accepted by GSA, where such acceptance is required under the Contract.

(2) With reasonable advance notice, the Contractor shall submit to the Contracting Officer a written proposal recommending a Substantial Completion date (Notice of Substantial Completion). The Contracting Officer shall conduct inspections and make a determination of Substantial Completion within a reasonable time. If the Contracting Officer takes exception to the Notice of Substantial Completion, the Contractor shall be entitled to a written notice of conditions precluding determination of Substantial Completion.

(3) The Contractor shall only be entitled to an extension of time to address such conditions if, and to the extent that, the Contracting Officer provides notice of such conditions more than thirty

(30) calendar days after receipt of the Notice of Substantial Completion.

(4) Substantial Completion shall be established by the Contracting Officer's issuance of a written determination specifying the date upon which the Work is Substantially Complete.

(5) The Contract is complete (Contract Completion) if and only if the Contractor has completed all Work and related Contract obligations, corrected all deficiencies and all punch list items, and complied with all conditions for final payment.

(6) The Contractor shall not be entitled to final payment or release of any retainage held by the Government until after Contract Completion. If the Contractor does not achieve Contract Completion within the time required by this Contract, the Government shall be entitled, after providing notice to the Contractor, to complete any work remaining unfinished. The Contractor

(The Agreement) Pages 12 of 65 shall be liable to the Government for all costs incurred by the Government to complete such work.

III.I. Use and Possession Prior to Substantial Completion

FAR 52.236-11, Use and Possession Prior to Completion, is supplemented as follows:

Exercise by the Government of the right conferred by FAR 52.236-11 shall not relieve the Contractor of responsibility for completing any unfinished components of the Work.

III.J. Finality of Contract Modifications

It is the Contractor's duty to include in proposals for equitable adjustment or other consideration all compensation to which it may be entitled, including cost and time. Unless otherwise explicitly stated in a modification to the Contract providing for such an adjustment, adjustments to the ECW or GMP or period of performance agreed upon therein shall be deemed to provide all adjustment to which the Contractor is entitled, and shall constitute final settlement of the Contractor's entitlement to adjustment on account of the change or other condition giving rise to the modification.

III.K. Liquidated Damages

FAR 52.211-12, Liquidated Damages, is supplemented as follows:

(1) The Contractor acknowledges that time is of the essence for the performance of the Work, and that determining actual damages from delay would be extremely difficult and impractical. If the Contractor fails to achieve Substantial Completion of the Work within the time specified in this Contract, the Contractor shall be liable to the Government for liquidated damages at the rate specified in Section I (Project Information), paragraph entitled, “Liquidated Damages Rate,” for each calendar day following the required completion date that the Work is not Substantially Complete.

(2) If the Contract requires different completion dates for different phases or portions of the Work, the Contractor shall be liable for liquidated damages at the specified rate for each calendar day following the required completion date that the phase or portion of Work is not Substantially Complete. If a single rate is specified, the specified rate shall be apportioned between the different phases or portions of the Work.

(3) If the Government elects to accept any portion of the Work not specifically designated as a phase or portion of Work with its own required completion date, the liquidated damage rate shall be apportioned between accepted work and uncompleted work, and the Contractor's liability for liquidated damages shall be computed accordingly.

III.L. Insurance Requirements

(1) The Contractor shall obtain and maintain for the entire life of the Contract, in addition to any insurance required by law, the following minimum kinds and amounts of insurance required pursuant to FAR clause 52.228-5, Insurance – Work on a Government Installation and GSAR 552.228-5, Government as Additional Insured.

(a) Workers' compensation insurance in the amount required by the jurisdiction in which the Contract is performed. The Contractor shall obtain Employers' liability coverage of at least

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$2,000,000. If occupational diseases are not covered by workers' compensation insurance, Employers' liability coverage shall include occupational diseases.

(b) Broad form comprehensive commercial general liability insurance in the amount of at least $5,000,000 per occurrence. Such insurance shall include, but not be limited to, contractual liability, bodily injury and property damage.

(c) Comprehensive automobile liability covering the operation of all automobiles used in connection with performing the Contract in the amount of at least $1,000,000 per person and $2,500,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage.

(2) The Contractor shall promptly provide to the Contracting Officer proof that it has obtained insurance required by the Contract in the form of certificates of insurance. The Contractor shall submit to the Contracting Officer all renewal certificates issued during the life of this Contract immediately upon issuance.

III.M. Performance and Payment Bonds

FAR 52.228-15, Performance and Payment Bonds – Construction, is supplemented as follows:

(1) "Original Contract Price" means the GMP established at award of this Contract.

(2) The Contractor shall furnish required performance and payment bonds within 14 days of exercise of the GMP Option.

(3) Receipt by the Government of required performance and payment bonds is a condition precedent to issuance of the NTP.

III.N. Order of Precedence

Different requirements within this Contract shall be deemed inconsistent only if compliance with both cannot be achieved. In case of inconsistency between Contract Documents, the following order of precedence shall apply:

(1) Section IV of the Agreement

(2) Sections I, II, and III of the Agreement

(3) The Statement of Work

(4) The Specifications

(5) The Drawings

(6) Exhibits and Other Attachments

III.O. Administrative Matters

(1) Project Meetings. The Contractor shall attend and participate in regularly scheduled Project meetings.

(2) Design Phase Services Payments. Within 30 days of award, the CMc will submit a payment schedule for design phase services which reflect the design reviews and various deliverables in

(The Agreement) Pages 14 of 65 the Design Phase schedule for approval. Progress Payments during the design phase will be based on the approved schedule.

(3) Schedule of Values. Within 30 days after the Contract is modified to incorporate a final ECW, the Contractor shall submit for approval a schedule of values for the Work. The schedule of values for the Work will include a cost breakdown of the final ECW, assigning values to each component of the Work. Values must include all direct and indirect costs, although a separate value for bond costs may be established. The schedule of values must be reconciled monthly with the open books for actual costs allocated.

(4) Payments. The Government shall make progress payments based upon the Design Phase Services Payment Plan and the Schedule of Values for the Work, as applicable. All payments will be credited to the Government in the establishment of the Final Settlement. Requirements for invoices are supplemented as follows:

(a) Before submitting a request for payment, the Contractor shall attend pre invoice payment meetings each month, as scheduled, with the designated Government representative for the purpose of facilitating review and approval of payment requests. Payment meetings may be conducted in person or by telephone. The Contractor shall provide documentation to support the prospective payment request.

(b) The Contractor shall submit its invoices to the Contracting Officer. Separate payment requests shall be submitted for progress payments, payments of retainage, and partial or final payments.

(c) If the invoice does not meet the requirements of FAR Clause 52.232-27 (a)(2) and the requirements specified in Subparagraphs (4)(a),(d),(e), and (f) of this Payments provision, the Contracting Officer may return the invoice to the Contractor without payment for correction.

If the Contracting Officer disputes the requested payment amount, the Government may pay the portion of the requested payment that is undisputed.

(d) Invoices shall be submitted in an original and two (2) copies to the designated billing office specified in this Contract or in individual delivery/work orders.

(e) Invoices must include the Account Document Number (ADN) assigned at award.

(f) The Contractor shall submit the following information or documentation with each invoice:

(i) For construction payments, GSA Form 184 - Construction Progress Report (construction work Only) or AIA Form G702, including the updated Schedule of Values upon which the payment request is based;

(ii) For construction payments, GSA Form 2419 - Certification of Progress Payments Under Fixed-Price Construction Contract;

(iii) For other payments including design phase payments, the invoice must identify deliverables and services rendered for that progress payment in accordance with the contract;

(iv) The payment terms that apply for the particular services rendered;

(v) Additional documentation: Not Applicable

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(g) GSA will not be obligated to issue final payment unless the Contractor has furnished to the Contracting Officer a release of claims against the Government relating to this Contract, and submitted all required product warranties, as-built drawings, operating manuals, and other items as specified in the Contract. The Contractor may reserve from the release specific claims only if such claims are explicitly identified with stated claim amounts. All release forms must bear the original signature of the signer and must be affixed with the Contractor’s corporate seal or the seal of a Notary Public.

(5) Prompt Payment. In accordance with FAR clause 52.232-27, the period for payments is as follows:

(a) Progress Payments: 14 days

(b) Subsequent Subcontractor Payments: 7 days

(6) Payment Information. The General Services Administration (GSA) makes information on contract payments available electronically at http://www.finance.gsa.gov. The Contractor may register at the site and review its record of payments. This site provides information only on payments made by GSA, not by other agencies.

(7) Security Clearances. Contractor shall comply with the following requirements pertaining to security clearances.

(a) All personnel performing work under the Contract on the Project site must obtain an Enter on Duty (EOD) determination before they will be granted access to the site.

(b) To obtain an EOD determination, Contractor shall submit for all such personnel fingerprints on Form SF87 and a completed Contractor Information Worksheet (CIW). Detailed information is available at http://www.gsa.gov/portal/category/107203. USAccess Credentialing Centers can be located at http://www.fedidcard.gov/centerlist.aspx

(c) In addition, all such personnel who will be on site 6 months or longer must apply for and receive clearance in accordance with Homeland Security Presidential Directive 12 (HSPD- 12). See Section IV, Contract Clauses, GSAR 552.204-9.

(8) Safeguarding and Dissemination of Sensitive But Unclassified (SBU) Building Information.

This clause applies to all recipients of SBU building information, including offerors, bidders, awardees, contractors, subcontractors, lessors, suppliers and manufacturers.

(a) Marking SBU. Contractor-generated documents that contain building information must be reviewed by GSA to identify any SBU content, before the original or any copies are disseminated to any other parties. If SBU content is identified, the Contracting Officer (CO) may direct the contractor, as specified elsewhere in this contract, to imprint or affix SBU document markings to the original documents and all copies, before any dissemination.

(b) Authorized recipients.

(i) Building information designated SBU must be protected with access strictly controlled and limited to those individuals having a legitimate business need to know such information.

Those with a need to know may include Federal, State and local government entities, and nongovernment entities engaged in the conduct of business on behalf of or with GSA.

Nongovernment entities may include architects, engineers, consultants, contractors, (The Agreement) Pages 16 of 65 subcontractors, suppliers, utilities, and others submitting an offer or bid to GSA, or performing work under a GSA contract or subcontract. Recipient contractors must be registered as “active” in the System for Award Management (SAM) database at www.sam.gov and have a legitimate business need to know such information. If a subcontractor is not registered in the SAM and has a need to possess SBU building information, the subcontractor shall provide to the contractor its DUNS number or its tax ID number and a copy of its business license. The contractor shall keep this information related to the subcontractor for the duration of the contract and subcontract.

(ii) All GSA personnel and Contractors must be provided SBU building information when needed for the performance of official Federal, State, and local government functions, such as for code compliance reviews and for the issuance of building permits. Public safety entities such as fire and utility departments may require access to SBU building information on a need to know basis. This clause must not prevent or encumber the dissemination of SBU building information to public safety entities.

c. Dissemination of SBU building information:

(i) By electronic transmission. Electronic transmission of SBU information outside of the GSA network must use session encryption (or alternatively, file encryption). Encryption must be via an approved NIST algorithm with a valid certification, such as Advanced Encryption Standard (AES) or Triple Data Encryption Standard (3DES), in accordance with Federal Information Processing Standards Publication (FIPS PUB) 140-2, Security Requirements for Cryptographic Modules per GSA policy.

(ii) By nonelectronic form or on portable electronic data storage devices. Portable electronic data storage devices include, but are not limited to CDs, DVDs, and USB drives.

Nonelectronic forms of SBU building information include paper documents, among other formats.

1) By mail. Contractors must utilize only methods of shipping that provide services for monitoring receipt such as track and confirm, proof of delivery, signature confirmation, or return receipt.

2) In person. Contractors must provide SBU building information only to authorized recipients with a need to know such information. Further information on authorized recipients is found in Section 2 of this clause.

d. Record keeping. Contractors must maintain a list of all entities to which SBU is disseminated, in accordance with sections 2 and 3 of this clause. This list must include at a minimum: (1) the name of the State, Federal, or local government entity, utility, or firm to which SBU has been disseminated; (2) the name of the individual at the entity or firm who is responsible for protecting the SBU building information, with access strictly controlled and limited to those individuals having a legitimate business need to know such information; (3) contact information for the named individual; and (4) a description of the SBU building information provided. Once “as built” drawings are submitted, the contractor must collect all lists maintained in accordance with this clause, including those maintained by any subcontractors and/or suppliers, and submit them to the CO. For Federal buildings, final payment may be withheld until the lists are received.

e. Safeguarding SBU documents. SBU building information (both electronic and paper formats) must be protected, with access strictly controlled and limited to those individuals having

(The Agreement) Pages 17 of 65 a legitimate business need to know such information. GSA contractors and subcontractors must not take SBU building information outside of GSA or their own facilities or network, except as necessary for the performance of that contract. Access to the information must be limited to those with a legitimate business need to know.

f. Destroying SBU building information. When no longer needed, SBU building information must be destroyed so that marked information is rendered unreadable and incapable of being restored, in accordance with guidelines provided for media sanitization within GSA CIO IT Security 06-32, Media Sanitization Guide and Appendix A of NIST Special Publication 800-88, Guidelines for Media Sanitization. Alternatively, SBU building information may be returned to the CO.

g. Notice of disposal. The contractor must notify the CO that all SBU building information has been returned or destroyed by the contractor and its subcontractors or suppliers in accordance with paragraphs 4 and 6 of this clause, with the exception of the contractor's record copy. This notice must be submitted to the CO at the completion of the contract to receive final payment. For leases, this notice must be submitted to the CO at the completion of the lease term. The contractor may return the SBU documents to the CO rather than destroying them.

h. Incidents. All improper disclosures of SBU building information must be immediately reported to the CO at <insert address and contact information> . If the contract provides for progress payments, the CO may withhold approval of progress payments until the contractor provides a corrective action plan explaining how the contractor will prevent future improper disclosures of SBU building information. Progress payments may also be withheld for failure to comply with any provision in this clause until the contractor provides a corrective action plan explaining how the contractor will rectify any noncompliance and comply with the clause in the future.

i. Subcontracts. The contractor and subcontractors must insert the substance of this clause in all subcontracts.

III.P. Non-Compliance with Contract Requirements

In the event the Contractor, after receiving written notice from the Contracting Officer of non-compliance with any requirement of this Contract, fails to initiate promptly such action as may be appropriate to comply with the specified requirement within a reasonable period of time, the Contracting Officer shall have the right to order the Contractor to stop any or all work under the Contract until the Contractor has complied or has initiated such action as may be appropriate to comply within a reasonable period of time. The Contractor will not be entitled to any extension of Contract time or payment for any costs incurred as a result of being ordered to stop work for such cause.

III.Q. Safeguarding…