Attachment 2 - Sample Construction Subcontract.pdf

Alliance for Sustainable Energy, LLC Management and Operating Contractor for the National Renewable Energy Laboratory

Subcontract under DOE Prime Contract No.

DE-AC36-08GO28308

BETWEEN

Contracting Party: Alliance for Sustainable Energy, LLC 15013 Denver West Parkway Golden, CO 80401-3111

AND

This Agreement (including all executed modifications) contains the entire understanding between the parties, and there are no understandings or representations except those set forth or incorporated by reference herein. No subsequent modifications of this agreement shall be of any force or effect unless in writing signed by a duly authorized official of NREL.

IN WITNESS WHEROF, the parties have executed this Agreement as of the date below.

ACCEPTED: COMPANY NAME AUTHORIZED: ALLIANCE FOR SUSTAINABLE

ENERGY, LLC

BY:

BY:

NAME:

NAME:

TITLE:

TITLE:

DATE:

DATE:

Agreement Type Firm Fixed Price – Construction Services

Subcontractor: Company Name

Street Address

City, State Zip + 4 Agreement Number SUB-2022-22028 Modification Number 0

Period of Performance Duration

Date of Execution – 365 calendar days

Notice to Proceed Date Agreement Amount $****

Substantial Completion - 330 calendar days

Final Completion – 365 calendar days

Buyer/Subcontract Administrator: Accounting Specialist: Lobato, Susan Alex Leishman Technical Monitor/POC: Joseph Clark Alex.Leishman@nrel.gov Bill To: accounts.payable@nrel.gov

Payment Terms: Net 15/30 Project Title:

S&TF Spill Recovery Replacement Automated Waste Neutralization mailto:Alex.Leishman@nrel.gov mailto:accounts.payable@nrel.gov

Purchase Order: SUB-2022-22028

Line Part Number/Description Quantity UOM Unit Price (USD) Tax Amount (USD)

1 -$

-$ Total:

INTRODUCTION & AGREEMENT

THIS SUBCONTRACT is effective upon execution by the Alliance for Sustainable Energy, LLC, manager and operator of the National Renewable Energy Laboratory and is between the Alliance for Sustainable Energy, LLC, whose principal office is located in Golden, Colorado and TBD (hereinafter called “Subcontractor”).

The Alliance for Sustainable Energy, LLC (hereinafter called “Alliance”) has entered into Contract No. DE-AC36-08GO28308 (hereinafter called “Prime Contract”) with the Department of Energy (hereinafter called “DOE”), an agency of the U.S. Government (hereinafter called “Government”), for the management and operation of the National Renewable Energy Laboratory (hereinafter called “NREL”). All references to “NREL” in this subcontract shall mean the Alliance for Sustainable Energy, LLC.

The text of some of the Applicable Documentation incorporated into this Subcontract Agreement, including but not limited to “Specifications”, contains construction industry standard text that may not accurately reflect the actual relationship of the parties to this Subcontract Agreement. The following substitutions shall be made as appropriate in the text of the Applicable Documentation incorporated into this Subcontract;

1. “Alliance for Sustainable Energy, LLC” for “NREL” to identify the Prime Contractor to the US Department of Energy;

2. “Alliance for Sustainable Energy, LLC” for “Owner” to identify the Prime Contractor as the representative of the “Owner”, the US Department of Energy;

3. “Subcontractor” for “Contractor” or “General Contractor” or “Construction Contractor” to identify the Subcontractor that is the lead contracting party to the Subcontract;

4. “Subcontract” for “Contract” to identify that this Subcontract is subordinate to the Prime Contract;

5. “Lower-Tier Subcontractor” for “Subcontractor” to identify the “trades” and “vendors” providing goods and services to the Subcontractor that is the lead contracting party to this Subcontract.

This subcontract is entered into in furtherance of the performance of the work provided for in the Prime Contract.

NOW, THEREFORE, the parties hereto agree to the following terms and conditions:

WORK TO BE PERFORMED

A. The Subcontractor shall perform the work generally described as “S&TF Spill Recovery

Replacement Automated Waste Neutralization”, and specifically provided for in Appendix A, Statement of Work attached hereto and made a part hereof, pursuant to the provisions of this subcontract.

B. Specific deliverables, quantities, due dates, reporting requirements, and addresses are set forth in Appendix A hereto.

COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK

A. The Subcontractor shall be required to commence work under this subcontract for design services upon execution of this subcontract and shall be completed within 365 calendar days after such date.

B. The Subcontractor shall be required to (a) commence work under this subcontract for construction after the Subcontractor receives NREL's Notice to Proceed, (b) prosecute the work diligently, and (c) complete the entire work to achieve Substantial Completion (as defined below and further explained in Appendix A, Statement of Work) within 330 calendar days of subcontract execution. Final Completion (as defined below and further explained in Appendix A, Statement of Work) of the entire work outlined in this Subcontract and Appendix A, Statement of Work within 35 calendar days of Substantial Completion. The time stated for completion shall include final cleanup of the premises.

1. Substantial Completion is defined as “when the work or designated portion thereof is sufficiently complete and inspected, in accordance with the subcontract documents, so that final commissioning can be conducted,” and shall be recognized via issuance of a Certificate of Substantial Completion from the NREL Subcontract Administrator to Subcontractor.

2. Final Completion is defined as “when all work reasonable inferable from the subcontract documents has been completed, approved and accepted by NREL, including the final cleanup of the premises, completion of all final inspection punch list items, and submission of all required documents including warranties,” and shall be recognized via NREL’s remittance of final payment.

3. Warranty Period is defined as “one year post final completion”.

PRICE AND PAYMENT

A. In full consideration of the Subcontractor’s performance of this project covered by this subcontract, NREL shall pay the Subcontractor the firm fixed price amount of [AMOUNT] in accordance with this Article, the clause untitled “Payments Under Fixed Price Construction Subcontracts” of Appendix B-4, and other provisions of this subcontract.

B. The Subcontractor is hereby reminded that it has entered into the subject Subcontract with the Alliance for Sustainable Energy, LLC, managing and operating contractor for the National Renewable Energy Laboratory, a 501(c)(3), tax-exempt organization. The Alliance for Sustainable Energy, LLC has also received a State of Colorado Tax Exempt Organization Number, No. 98-19771-0000, the City of Lakewood Tax Exemption Certificate Number, No. 47856.

For purposes of performing the work identified under this Subcontract, the Subcontractor shall be considered to be acting in the capacity of the project’s “General Contractor” Subcontractor/General Contractor. As such, Subcontractor/General Contractor is responsible for reviewing, completing, and submitting the State of Colorado – Department of Revenue form DR 0172, Contractor Application for Exemption Certificate, to the Colorado Department of Revenue to apply for all permissible tax exemptions for the purchase of construction and building materials for the exempt project performed under this Subcontract. Additionally, pursuant to Colorado Statute § 39-26.708.(1),( 2), & 3, The Subcontractor/General Contractor is responsible for issuing certificates to each lower-tier subcontractor performing work under this Subcontract.

C. Invoices for work accomplished under this subcontract shall be submitted electronically

(Microsoft Word or PDF format) to the following email address:

Accounts.Payable@nrel.gov

D. To expedite the payment process please submit one invoice per email and include in the subject line of the email the following:

• Subcontract Associate Name:

• Subcontract Number

• Subcontractor Name:

• Invoice attached

E. To facilitate processing and payment each invoice shall reference the following items:

• Subcontract Associate Name:

• Subcontract Number

• Subcontractor remittance name and address

• Deliverable title/Occurrence number

• Invoice number and date

• Certification and signature

• Any other information or documentation required by other provisions of this subcontract

F. The payment terms of the subcontract shall mean net days from the date of receipt of an acceptable invoice [including appropriate certification(s) and payroll records]. Final payment by NREL shall be contingent upon inspection and acceptance of the construction effort required by this subcontract, and receipt by NREL of an appropriately signed “Release of Claims” form from the Subcontractor.

G. Any payment made under this subcontract shall not be deemed to prejudice any rights that NREL may have by law or under other provisions of this subcontract.

H. Invoices for work accomplished under this subcontract shall be submitted in an original form satisfactory to the Subcontract Administrator, accompanied by the following “Certificate of Payment”. An authorized representative of the Subcontractor shall sign the following certification on each invoice submitted for payment:

“I hereby certify, to the best of my knowledge and belief, that (1) the amounts requested are only for performance in accordance with the specification, terms, and conditions of the subcontract; (2) payments to lower-tier subcontractors and suppliers have been made from previous payments received under this subcontract, and timely payments will be made from the proceeds of the payment covered by this certification, in accordance with lower-tier subcontract agreements and the requirements of Chapter 39 of Title 31, United States Code;

and (3) this request for progress payments does not include any amounts which the Subcontractor intends to withhold or retain from a lower-tier subcontractor or supplier in accordance with the terms and conditions of the lower-tier subcontract.

Authorized Official’s Signature

Authorized Official’s Typed or Printed Name

Authorized Official’s Title

Date”

I. The Subcontractor is hereby notified that NREL may withhold payment on invoices submitted, if the Subcontractor has failed to comply with or is delinquent in the submission of the reporting or deliverable requirements under this subcontract associated with the fixed price payment, until such time as the Subcontractor has complied or submitted such reporting or deliverable requirement.

J. Release of Claims

The Subcontractor shall execute and deliver at the completion of all work effort under this subcontract, a release of claims discharging the Government and NREL, their officers, agents, and employees of and from all liabilities, obligations, and claims arising out of or under this subcontract, subject only to the following exceptions:

1. Specified claims, in stated amounts or in estimated amounts, where the amounts are not susceptible to exact statement by the Subcontractor.

2. Claims, together with reasonable incidental expenses, based upon the liabilities of the Subcontractor to third parties arising out of performing the individual lower-tier subcontracts under this subcontract, that are not known to the Subcontractor on the date of the execution of the release, and of which the Subcontractor gives notice in writing to the Subcontract Administrator not more than six (6) years after the date of the release or the date of any notice to the Subcontractor that NREL is prepared to make final payment, whichever is earlier.

Claims for reimbursement of costs (other than expenses of the Subcontractor by reason of its indemnification of NREL against patent liability), including reasonable incidental expenses, incurred by the Subcontractor under the terms of this subcontract relating to patents.

K. Refunds

The Subcontractor agrees that any refunds, rebates, or credits (including any related interest) accruing to or received by the Subcontractor (or any successor in interest to this subcontract) that arise under the expenses portion of this subcontract and for which the Subcontractor has received reimbursement, shall be paid by the Subcontractor to NREL.

The Subcontractor (or any successor in interest to this subcontract) shall execute and deliver, at the time of and as a condition precedent to final payment, an assignment to NREL of such refunds, rebates, or credits (including any interest) in form and substance satisfactory to the Subcontract Administrator.

CONSTRUCTION SUBCONTRACTOR PAYROLL SUBMISSION REQUIREMENTS

Unless otherwise authorized by NREL all weekly payroll information required under the PAYROLLS AND BASIC RECORDS clause of NREL Appendix B-4 shall be submitted electronically utilizing the LCP Tracker system, which is available at https://prod.lcptracker.net

NEGOTIATED RATES AND FACTORS FOR CHANGES

A. For the purpose of expediting negotiation of equitable adjustments for Subcontract modifications that may occur, the following rates and factors will be applied as and when appropriate for the entire period of performance:

Description Rate

Overhead Rate %

G & A Rate %

Profit Rate %

Mark-up on Materials/Material Handling %

Mark-up on Lower-Tier Subcontractors %

Insurance and Payment and Performance Bonds

Additional Profit, Overhead, and G&A is not authorized on any of the fully burdened rates from the table below.

B. The following fully burdened hourly labor rates will apply to general condition costs, and modifications for the entire period of performance:

Discipline Fully Burdened Hourly Labor

Rate

Project Manager $

Field Supervisor $

Administrative Support $

Project Engineer $

Safety Manager $

APPLICABLE DOCUMENTATION

In addition to the terms and conditions contained in this Schedule, the following documents are attached hereto and made a part of this subcontract:

1. Appendix A, entitled “Statement of Work”, dated 1/11/2022;

2. NREL Appendix B-4, entitled "Standard Terms and Conditions" dated 3/1/20.

3. NREL Appendix C-3, entitled “Intellectual Property Provisions,” dated 3/1/20.

4. NREL Appendix F, entitled “Small Business Lower-Tier Subcontracting Plan”

5. NREL Appendix G, Wage Determination (DBA)

• CO20220002, Mod. 0, dated 1/7/22, (Heavy);

• CO20220006, Mod. 0, dated 1/7/22, (Highway); and

• CO20220023, Mod. 0, dated 1/7/22, (Building).

6. Subcontractor’s approved technical proposal dated (****) together with any revisions, is hereby incorporated by reference. In the event there is a conflict between the Subcontractor’s technical proposal and any other provisions of this Subcontract, the latter shall prevail.

ORDER OF PRECEDENCE

Any inconsistency in this subcontract shall be resolved by giving precedence in the following order:

1. This Schedule;

2. Statement of Work (Appendix A);

3. Standard Terms and Conditions (Appendix B-4);

4. Intellectual Property Provisions (Appendix C-3)

5. NREL Appendix F, Small Business Lower-Tier Subcontracting Plan

6. NREL Appendix G, Wage Determination

7. Other provisions of this subcontract whether incorporated by reference or otherwise;

and

8. The Subcontractor’s technical proposal, if incorporated in this subcontract by reference of otherwise.

RIGHTS TO PROPOSAL DATA

Except for technical data contained on pages (None) of the Subcontractor's proposal dated **/**/** which are asserted by the Subcontractor as being proprietary data, it is agreed that, as a condition of the award of this subcontract, and notwithstanding the provisions of any notice appearing on the proposal, the Government and NREL shall have the right to use, duplicate, disclose and have others do so for any purpose whatsoever, the technical data contained in the proposal upon which this subcontract is based.

LOWER-TIER SUBCONTRACTING PLAN (JAN 2022)

The Subcontractor's Small Business Lower-Tier Subcontracting Plan is incorporated as Appendix F in this subcontract. The Subcontractor shall electronically submit the "Individual Subcontract Report" (ISR) semiannually during subcontract performance for the periods ended March 31st and September 30th, based on the Government's fiscal year (October 1 through September 30). The ISR is due on or before the thirtieth (30th) day of the month following the close of the applicable period. The ISR submission shall be made electronically through the Electronic Subcontracting Reporting System (eSRS) at www.esrs.gov. Additional instructions can be found at:

https://www.nrel.gov/workingwithus/assets/pdfs/appendix_f_instructions.pdf, under the document entitled "Instructions for Submitting Small Business Subcontracting Reports through the Electronic Subcontracting Reporting System (eSRS)".

SUBCONTRACT ADMINISTRATION RESPONSIBILITIES

A. Signature Authority:

This subcontract may only be modified by a formal modification signed by an authorized official of NREL.

1. Signature Authority:

This Subcontract may only be modified or changed by a binding direction signed by an authorized official of NREL.

2. Subcontract Administration Responsibilities:

Note: The Subcontract Administrator shall mean the designated NREL official for the Subcontract.

a) The authorized NREL official designated as the Subcontract Administrator for this

Subcontract has the responsibilities for administering the Subcontract and directing binding modifications and changes to this Subcontract.

b) The Subcontract Administrator is the only individual authorized to direct to the Subcontractor binding modifications and changes under this Subcontract and such authority shall remain solely with the Subcontract Administrator regardless of any other provisions of this Subcontract. With Project Manager’s concurrence, the Subcontract Administrator shall direct such binding modifications and changes in writing to the Subcontractor. The Subcontractor shall address all contractual and administrative correspondence directly to the appropriate Subcontract Administrator.

c) Except for changes resulting from an emergency described in subparagraph below, no written or verbal statement from the Project Manager or any other unauthorized individual shall be construed to be a binding direction unless or until the Subcontract Administrator directs to the Subcontractor a written modification or change to this Subcontract. The Subcontractor assumes the risk and sole expense of any such unauthorized changes and hereby waives all rights to costs and time extensions that stem directly from changes made without prior written direction from the designated Subcontract Administrator. NREL shall make no adjustment to the Subcontract price https://www.nrel.gov/workingwithus/assets/pdfs/appendix_f_instructions.pdf and/or performance period for changes made by the Subcontractor without the binding direction of the designated Subcontract Administrator.

d) In the event that the Subcontractor is directed by the Project Manager or any unauthorized individual to make a change resulting from an emergency that requires the Subcontractor to take immediate action, the Subcontractor shall be entitled to an equitable adjustment in Subcontract price and performance period (if any) covering only that period up to and no later than the second working day after the date on which the emergency occurred. Emergencies are subject to being deemed appropriate and the price being fair and reasonable by the designated Subcontract Administrator.

e) The Subcontract Administrator is the only authorized personnel to issue the following:

• Field Change Order (FCO) may be issued during construction, to correct a condition which requires immediate action to avoid work stoppage, significant cost increase, alleviate ESH&Q concern, avoid damage to facility or equipment if not immediately implemented. These are only used in emergency cases. FCOs typically include a not to exceed amount, but rarely provide enough time to negotiate a firm fixed price change to the subcontract.

Once the work is complete, the Subcontractor is required to substantiate actual costs incurred prior to the issuance of a modification to the subcontract. The Subcontractor may not invoice for work provided under a FCO until a modification is executed for that specific work effort.

• Change Order (CO) may be issued during construction to direct the subcontractor to make changes to the scope of work. These may be as a result of differing field conditions (that are not an emergency in nature), or other NREL driven changes to the that must be implemented timely. These changes allow for firm fixed pricing for the additional work effort. The Subcontractor may not invoice for work provided under a FCO until a modification is executed for that specific work effort.

• Modification is the formal change to the subcontract adding or removing scope changes outlined in a FCO or CO or other negotiated change to the scope of work.

3. Project Management Responsibilities:

a) The authorized NREL official designated as the Project Manager for this Subcontract has the accountability for stewardship of the Subcontractor’s technical project performance with respect to the scope, schedule, and budget under this Subcontract.

The Subcontractor shall address all correspondence regarding technical project performance on this Subcontract to the Project Manager, with an informational copy sent to the designated Subcontract Administrator.

b) The Project Manager is accountable for stewardship of the Subcontractor’s technical project performance but is not authorized to direct to the Subcontractor binding modifications and changes to the Subcontractor’s technical project performance, including scope of work, schedule, budget, performance period, or terms and conditions on this Subcontract.

Except for changes resulting from an emergency that requires the Subcontractor to take immediate action, any change made by the Subcontractor based on a statement from the Project Manager shall be at the risk and sole expense of the Subcontractor.

The Subcontractor shall immediately refer all such changes to the designated Subcontract Administrator.

4. Construction Inspector/Manager Responsibilities:

a) The authorized official of NREL has designated ** as the Construction Inspector/Manager for this Subcontract with the accountability for all inspection and testing before acceptance to ensure strict compliance with the terms of the subcontract. The Construction Inspector/Manager’s telephone number is (303) ***- ****. The Subcontractor shall notify the Construction Inspector/Manager when stages of work are ready for inspection and testing for acceptance.

b) The NREL Construction Inspector/Manager, together with representatives of NREL’s Environmental Safety & Quality Electrical Safety group are accountable for acceptance of work in accordance with the Inspection clauses set forth in Appendix B.

c) With the exception of inspection requirements associated with its Quality Assurance/Quality Control outlined in the Subcontractor’s Quality Assurance Plan, the Subcontractor shall not inspect its own work performed under this subcontract.

KEY PERSONNEL AND LOWER TIER SUBCONTRACTORS

A. The key personnel listed below, or other personnel approved by the Subcontract

Administrator as persons of substantially equal abilities and qualifications, are necessary and key to the successful performance of this Subcontract. The Subcontractor agrees to assign such employees or persons to the performance of the work under this Subcontract and shall not reassign or remove any of them without prior written approval of the Subcontract Administrator. If, for any reason not the fault of the Subcontractor, one or more of these individuals are unavailable to work under this Subcontract, the Subcontractor shall, with the approval of the Subcontract Administrator, replace such employee with an individual of substantially equal abilities and qualifications.

Name Title Phone Number

B. It having been determined that the lower-tier subcontractors, whose names appear below, are necessary for the successful performance of this Subcontract, the Subcontractor agrees to execute lower-tier subcontracts for the performance of work by these companies under this Subcontract and shall not remove any of them without the consent of the Subcontract Administrator by modification to this subcontract:

Lower Tier

The Subcontractor agrees to provide accession documents to each of the lower-tier subcontractors named in this article and to have such documents executed and returned to the Subcontractor. The Subcontractor shall provide NREL with copies of all such accession documents received, each of which shall identify that the respective lower-tier subcontractor has acceded to all requirements, terms and conditions of the Subcontract.

NOTICE TO PROCEED REQUIREMENTS

Prior to the commencement of any on-site construction scope of work being performed the Subcontractor shall submit the following deliverables for Subcontract Administrator’s acceptance, prior to issuance of Notice to Proceed (NTP) for work under the Subcontract.

Item No.

Deliverable

Due Date/Requirement

1. Performance and Payment Bonds. *See Performance and Payment Bond article below.

After Subcontract Award and Prior to Issuance of Notice to Proceed (NTP).

2.

Insurance Certificate (as specified in Appendix B-4). The Subcontractor shall maintain a current certificate of insurance (with the Alliance for Sustainable Energy, LLC named as an additional insured) at all times during the period of performance of the Subcontract and shall submit any updates in a timely manner to the designated Subcontract Administrator.

After Subcontract Award and Prior to Issuance of NTP.

3. Construction Environment, Health and Safety Plan (CEHSP)

After Subcontract Award and Prior to Issuance of NTP

4.

Environment, Safety, and Health Offeror or Lower-Tier Subcontractor Risk Evaluation Worksheet. A worksheet is required for the Subcontractor and all lower-tier subcontractors prior to performing work respectfully to the construction schedule.

After Subcontract Award, Prior to NTP, or within first 45 Days after issuance of NTP, pursuant to the Construction Schedule.

Important Note: Acceptable EMRs are required prior to site access for Subcontractor and all lower-tier subcontractors performing construction work on any of the NREL properties.

Item No.

Deliverable

Due Date/Requirement

5.

NREL Version of the Statement and Acknowledgment Form 1413 with NREL Site Specific Clause. A form is required for the Subcontractor and all lower-tier subcontractors respectfully to the construction schedule and prior to site access.

After Subcontract Award, Prior to NTP, or within the first 45 Days after issuance of NTP, pursuant to the Construction Schedule.

Important Note: Acceptable SF1413’s are required prior to site access for Subcontractor and all lower-tier subcontractors.

6. Preliminary CPM Construction Schedule and Schedule of Values

After Subcontract Award and Prior to Issuance of Notice to Proceed

7.

LCPTracker Setup for Wage Determination Payrolls. Required for Subcontractor and Lower-tier employees subject to the Department of Labor’s Wage Rate Reporting Requirements and Davis-Bacon Wage Determinations. (As specified in Article 6 above.)

After Subcontract Award and Prior to Issuance of Notice to Proceed and required Weekly after commencement of work

PERFORMANCE AND PAYMENT BONDS

Definitions. As used in this Article.

A. “Original Subcontract price” means the award price of the Subcontract; or, for requirements subcontracts, the price payable for the estimated total quantity; or, for indefinite-quantity contracts, the price payable for the specified minimum quantity.

Original Subcontract price does not include the price of any options, except those options exercised at the time of Subcontract award.

B. Amount of required bonds. The Subcontractor shall furnish performance and payment bonds to the Subcontract Administrator as follows:

1. Performance Bonds. The penal amount of performance bonds at the time of Subcontract award shall be 100 percent of the original Subcontract price.

2. Payment Bonds. The penal amount of payment bonds at the time of Subcontract award shall be 100 percent of the original Subcontract price.

3. Additional bond protection

i. NREL may require additional performance and payment bond protection if the Subcontract price is increased. The increase in protection generally will equal 100 percent of the increase in Subcontract price.

ii. NREL may secure the additional protection by directing the Subcontractor to increase the penal amount of the existing bond or to obtain an additional bond.

C. Furnishing executed bonds. The Subcontractor shall furnish all executed bonds, including any necessary reinsurance agreements, to the NREL Subcontract Administrator, within the time period specified in the Bid Guarantee provision of the solicitation, or otherwise specified by the NREL Subcontract Administrator, but in any event, before starting work under this Subcontract.

D. Surety or other security for bonds. The bonds shall be in the form of a firm commitment, supported by corporate sureties whose names appear on the list contained in Treasury Department Circular 570, individual sureties, or by other acceptable security such as postal money order, certified check, cashier’s check, irrevocable letter of credit, or, in accordance with Treasury Department regulations, certain bonds or notes of the United States. Treasury Circular 570 is published in the Federal Register or may be obtained from the:

U.S. Department of Treasury Financial Management Service Surety Bond Branch 401 14th Street, NW, 2nd Floor, West Wing Washington, DC 20227

E. Notice of lower-tier subcontractor waiver or protection (40 U.S.C. 270b(c). Any waiver of the right to sue on the payment bond is void unless it is in writing, signed by the person whose right is waived, and executed after such person has first furnished labor or material for use in the performance of the Subcontract.

SCHEDULES FOR CONSTRUCTION SUBCONTRACTS

A. As a prerequisite to Notice to Proceed the Subcontractor shall prepare and submit to the

NREL Subcontract Administrator for approval a Critical Path Method (CPM) Construction Schedule showing the order in which the Subcontractor proposes to perform the work, and the dates on which the Subcontractor contemplates starting and completing the several salient features of the work (including acquiring material, plant, and equipment).

The CPM Schedule shall be in the form of a progress chart of suitable schedule format that indicates appropriately the percentage of work scheduled for completion by any given date during the period. The Schedule shall be accompanied by a corresponding Schedule of Values (SOVs) in spreadsheet format that provides the value of each salient feature (task or group of similar tasks) provided in the Schedule. The CPM Construction Schedule and Schedule of Values shall be consistent with the required payment format described in Article 3 (i.e., the American Institute of Architects Forms G702 and G703). If the Subcontractor fails to submit a CPM Construction Schedule and Schedule of Values within the time prescribed, the NREL Subcontract Administrator may withhold issuance of the Notice to Proceed and approval of any progress payments.

B. Construction Schedule updates shall be provided at intervals corresponding with applications for payment. The Subcontractor shall enter the actual progress on the CPM Construction Schedule indicating the actual start, actual finish and percent complete for activities that are underway or completed, the data date, total float and percent complete. The Schedule shall be accompanied by a corresponding Schedule of Values in spreadsheet format that provides the value of each activity provided in the Schedule.

The CPM Construction Schedule and Schedule of Values shall be consistent with the pay application format described in Article 3 (i.e., the American Institute of Architects Forms G702 and G703). If the Subcontractor fails to submit the Updated Construction Schedule and Schedule of Values with the applications for payment, the NREL Subcontract Administrator may withhold approval of progress payments until the Subcontractor submits the required Updated Construction Schedule and Schedule of Values.

C. Failure of the Subcontractor to comply with the requirements specified under this article shall be grounds for a determination by the NREL Subcontract Administrator that the Subcontractor is not prosecuting the work with sufficient diligence to ensure completion within the time specified in the Subcontract. Upon making this determination, the NREL Subcontract Administrator may terminate the Subcontractor's right to proceed with the work, or any separable part of it, in accordance with the default terms and conditions of this Subcontract and Appendix B-4.

TIME IS OF THE ESSENCE

NREL and the Subcontractor mutually agree that time is of the essence with respect to the dates and times set forth in the subcontract documents.

SUBCONTRACTOR’S SAFETY OVERSIGHT

The Subcontractor shall designate a Qualified Construction Supervisor and/or Competent or Qualified person (as defined in the attached Appendix A), who is satisfactory to the designated Subcontract Administrator and has authority to act for the Subcontractor, on site at all times during the performance of any construction activities under this Subcontract. The Subcontractor’s designated Qualified Construction Supervisor must be an employee of the Subcontractor and is responsible for Safety Oversight of all work performed under this Subcontract. The designated Qualified Construction Supervisor shall be considered a “key personnel”.

PUBLICITY RELEASE AND PUBLIC AFFAIRS

A. Publicity release of any nature in connection with this Subcontract shall be coordinated as provided in the “Public Affairs” clause of Appendix B. The Subcontractor shall not make without prior review and approval of the NREL Subcontract Administrator, any publicity release of any nature of general, non-technical information in connection with this Subcontract. For purposes of this Subcontract, general, non-technical information means any information concerning the existence of the Subcontract, the identity of the parties, and the scope and general character of the research or technical activity. As used in this Article, “publicity release” does not include a lawful inspection of the Subcontractor’s records conducted pursuant to Federal or State public records access statutes. The Subcontractor may report specifics regarding the formation and execution of this Subcontract in its internal publications without prior review and approval of the NREL Subcontract Administrator.

B. Data rights are set forth in Appendix C hereof.

WASTE DISPOSAL

In accordance with the clause entitled "Cleaning Up" of Appendix B-4 the Subcontractor shall be responsible for maintaining a clean and neat construction site and for removing and disposing of all scrap and waste (including any hazardous or toxic material) from the construction site in accordance with all applicable laws or regulations at no additional cost to NREL. The Subcontractor shall be responsible for disposing of all excess soil or waste material from excavations made by the Subcontractor, unless otherwise specified in this Subcontract.

PROGRESS MEETINGS AND REPORTS

A. Preconstruction Meeting: A meeting shall be conducted within one (1) week after receipt of the notice to proceed for this Subcontract. The Subcontractor and its principal lower-tier subcontractors, if any, shall attend this meeting. The purpose of the meeting is to coordinate all aspects of the construction project including the construction schedule and the special requirements for environmental, safety and security associated with performance of the construction project on a Government-owned or leased facility.

B. Daily Log Reports: The Subcontractor shall prepare, and require its lower-tier subcontractors to prepare, daily reports to be kept on file until Subcontract closeout, recording all construction activities at the construction project site including any safety issues or concerns. The NREL Subcontract Administrator or the NREL Project Manager may review these daily log reports, as requested, and may require the Subcontractor to submit two (2) copies of any daily log report to NREL (one copy for the Subcontract Administrator and one copy for the Project Manager).

C. Verbal Reports: The Subcontractor shall provide verbal reports to the NREL Project

Manager, as requested, to ensure that NREL is informed of all progress made and any problems that might cause a delay in the completion of this construction project. These verbal reports will ensure that NREL is afforded the opportunity to take appropriate action to avoid or mitigate any problems as they arise under the construction project.

D. Progress Meetings Upon Request: The Subcontractor shall be required to attend construction progress meetings, as considered necessary and requested by NREL. The Subcontractor shall ensure that any of its lower-tier subcontractors also attend these meetings, as required. The purpose of these meetings shall be to review current and proposed work schedules and progress, discuss and resolve construction problems, and resolve administrative matters.

EXISTING SERVICES AND UTILITIES

A. The term "services and utilities" as used here is defined as including, but not limited to, roads, ditches, electrical, phone/data, sewer, water, fencing, etc.

B. If applicable to the performance of work under this Subcontract, the locations of existing underground services and utilities as indicated on the drawings are approximate, and a utility “locate” may be required.

C. The Subcontractor shall be responsible for the actual necessary connection(s) to any existing service or utility required in the performance under this Subcontract.

D. The Subcontractor is hereby notified that all underground electrical systems and other systems covered by the NREL lockout/tagout program shall be de-energized and locked out during excavations within 5 feet of those systems. Exceptions to this requirement must be approved in writing by the NREL Subcontract Administrator, after concurrence by the NREL Project Manager and the NREL Environment, Safety, Health and Quality (ESH&Q) representative. Such outage shall be coordinated with NREL’s Project Manager in accordance with Paragraph (E) below.

E. No planned outage will be permitted without prior consent of the NREL Project Manager.

The Subcontractor shall coordinate with NREL's Project Manager five (5) full NREL normal working days prior to any approved planned interruption of existing services and utilities required for performance under this Subcontract. Interruption of existing services and utilities includes, but is not limited to, existing equipment, piping, electrical service or other utilities, which must be disconnected, shut off, relocated or otherwise modified. The Subcontractor shall be responsible for reconnecting and restoring to the original operating conditions any equipment that was disconnected or put out of service as a result of any interruption (planned or otherwise), unless specified under this Subcontract. If significant fire protection system(s) will be impaired longer than eight (8) hours, specific approval shall be obtained from the NREL Project Manager, who shall coordinate with the NREL ESH&Q representative. The Subcontractor shall apply appropriate lockout/tagout to the device which de-energizes the service (breakers, etc.) as to prevent accidental reactivation. All utilities tie-in costs and premium time, if any, shall be included in the Subcontract price.

TEMPORARY STRUCTURES, OFFICES AND WORK AREAS

A. The Subcontractor shall be responsible for providing at its own expense, all temporary structures, utilities, and services required by it for use as offices, warehouses, shops, etc.

The location and type of any temporary structure shall be approved and coordinated with the NREL Project Manager. Such temporary structures shall be removed by the Subcontractor at its own expense upon the completion of the construction effort. The Subcontractor shall hold and save NREL and the Government, their officers, employees, and agents free and harmless from liability of any nature associated herewith.

B. Only materials, appliances, and plans to be used for the performance of the Subcontract scope of work may be stored in stockpile areas or in warehouses and shop facilities (whether erected by the Subcontractor or not) located on Government-controlled land. If the Subcontractor abandons the performance of the Subcontract or if the Subcontractor's right to proceed is terminated pursuant to the clause entitled "Default (Fixed Price Construction)," the Subcontractor shall hold and save NREL and the Government and their officers and agents free and harmless from any liability of any nature or kind, arising from NREL's or the Government's entry into such stockpile areas, warehouses, or shop facilities and from NREL's or the Government's taking possession of and utilizing such materials, appliances, and plant in completing the Subcontract work.

C. All operations of the Subcontractor, including storage of construction materials and equipment, upon Government premises shall be confined to areas authorized or approved by NREL. No unauthorized or unwarranted entry upon or passage through, or storage or disposal of materials shall be made upon Government premises. The Subcontractor shall hold and save NREL and the Government, its officers and agents free and harmless from liability of any nature or kind arising from any use, trespass, or damage occasioned by its operations on premises of third persons.

D. The Subcontractor shall use only established roadways or construct and use such temporary roadways as may be authorized by NREL. Where materials are transported in the prosecution of the work, vehicles shall not be loaded beyond the loading capacity recommended by the manufacturer of the vehicles or prescribed by an applicable Federal, state, or local law or regulation. When it is necessary to cross curbings or sidewalks or to operate heavily loaded vehicles on surfaced streets, sidewalks or developed areas, protection against damage shall be provided by the Subcontractor, and any damaged roads, curbings, sidewalks or developed areas shall be repaired by, or at the expense of the Subcontractor.

E. Dependent upon the size of the project, the Subcontractor shall provide and maintain during the entire period covered by this Subcontract a weather-tight safety bulletin board.

It shall be mounted in a conspicuous place, as approved by the Project Manager, accessible to all employees of the Subcontractor and lower-tier subcontractors. The bulletin board will remain the property of the Subcontractor. All NREL or Government posters or notices, the Subcontract's Davis-Bacon Wage Rate decision, Subcontractor's safety programs, and any publications in the interest of workers shall be displayed on this bulletin board.

RESPONSIBILITIES FOR SUPPLIES AND MATERIALS

Except as otherwise provided this Subcontract, the risk of loss of or damage to supplies or materials for the performance of construction projects shall remain with the Subcontractor until completion, inspection and acceptance of the construction project or completion, inspection and acceptance of any segregable unit of the construction project.

TIME EXTENSIONS

Time extensions for changes under Subcontract modifications will depend upon the extent, if any, by which the changes cause delay in the completion of the various elements of construction. The Subcontract modification granting the time extension may provide that the Subcontract completion date will be extended only for those specific elements related to the changed work and that the remaining Subcontract completion dates for all other portions of the work will not be altered. The Subcontract modification also may provide an equitable readjustment of liquidated damages under the new completion schedule.

PERFORMANCE OF WORK BY THE SUBCONTRACTOR

The Subcontractor shall perform on the site, and with its own organization, work equivalent to at least twenty (20) percent of the total amount of work to be performed under the Subcontract. This percentage may be reduced by a modification to this Subcontract if, during performing the work, the Subcontractor requests a reduction and the NREL Subcontractor Administrator determines that the reduction would be to the advantage of NREL.

LAYOUT OF WORK

The Subcontractor shall lay out its work from NREL established base lines and bench marks indicated on the drawings and shall be responsible for all measurements in connection with the layout. The Subcontractor shall furnish, at its own expense, all stakes, templates, platforms, equipment, tools, materials, and labor required to lay out any part of the work. The Subcontractor shall be responsible for executing the work to the lines and grades that may be established or indicated by NREL. The Subcontractor shall also be responsible for maintaining and preserving all stakes and other marks established by NREL until authorized to remove them. If such marks are destroyed by the Subcontractor or through its negligence before their removal is authorized, NREL may replace them and deduct the expense of the replacement from any amounts due or to become due to the Subcontractor.

ALLOCATION OF LIABILITY AND RESPONSIBILITY FOR VIOLATIONS OF SAFETY AND

ENVIRONMENTAL REQUIREMENTS

A. NREL and the Subcontractor commit to full cooperation with regard to safety and environmental requirements applicable to the performance of work under this Subcontract.

This article allocates the liability and responsibility for violations of safety and environmental requirements applicable to the performance of work under this Subcontract.

For purposes of this Subcontract, the term “safety requirements” means requirements imposed by the Department of Energy’s “Worker Safety and Health” rule codified at 10 CFR 851 and “environmental requirements” means requirements imposed by applicable Federal, State, and local environmental laws and regulations, including without limitation, statutes, ordinances, regulations, court orders, consent decrees, administrative orders, compliance agreements, permits and licenses.

B. Liability and responsibility for civil fines or penalties arising from or related to violations of safety or environmental requirements shall be borne by the party causing the violation. In the event that the Subcontractor causes a violation of safety or environmental requirements, the Subcontractor shall not be entitled to reimbursement or equitable adjustment from NREL or the Government for civil fines or penalties associated with such violation. Following an internal investigation of the circumstances resulting in the rendering of any civil fine or penalty, the NREL Subcontract Administrator shall provide a determination of liability and responsibility, consistent with all relevant facts and circumstances. Disputes of such determination shall be addressed in accordance with the Disputes clause of this Subcontract.

C. Liability and responsibility for civil fines or penalties shall be borne by the causing party irrespective of the fact that the cognizant regulatory authority may assess any such fine or penalty upon either party or both parties (or the Government) without regard to the allocation of responsibility or liability under this Subcontract. This allocation of liability and responsibility for any such fine or penalty is effective regardless of which party signs permit application’s manifests, reports or other required documents, is a permitee, or is the named subject of an enforcement action or assessment of a fine or penalty.

D. In the event that the Subcontractor is deemed to be the primary party causing the violation, then the Subcontractor shall be afforded the opportunity to participate in negotiations to settle or mitigate the fines and penalties with the regulatory authority. If the Subcontractor is the sole party of the enforcement action, the Subcontractor shall take the lead role in the negotiations and NREL shall have sole discretion regarding its participation in such negotiations.

RESPONSIBILITIES FOR RISK OF LOSS OR DAMAGE

A. Except as otherwise provided in this Subcontract, the risk of loss of or damage to supplies or materials delivered, and work performed under this Subcontract shall remain with the Subcontractor until completion, inspection, and acceptance of the construction project or completion, inspection, and acceptance of any segregable unit of the construction project.

B. Under paragraph (A) above, the Subcontractor shall not be liable for loss of or damage to supplies or materials caused by the negligence of NREL or the Government’s officers, agents, or employees.

COORDINATION OF WORK WITH LABORATORY SCHEDULE AND AVERAGE ADVERSE

WEATHER DAYS

A. Unless otherwise approved in writing by the Subcontract Administrator, the

Subcontractor’s work shall be performed during NREL workdays. A NREL workday means Monday through Friday, 7:00 a.m. through 5:00 p.m., of each week, except as specified below:

1. The days designated as NREL holidays (i.e., New Year’s Day, Martin Luther King Jr. Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, and Christmas Day) are not NREL workdays.

2. If a NREL holiday falls on a Saturday or Sunday, the preceding Friday or the following Monday may not be a NREL workday.

3. The Friday after Thanksgiving is not a NREL workday.

4. Any day that NREL closes unexpectedly will not be an NREL workday

B. The Subcontractor’s progress schedule should include 3 adverse weather days per month in all-weather dependent activities. In order for NREL to award a non-compensable time extension due to adverse weather: (1) the number of actual adverse weather days experienced at the project site during the entire Subcontract period of…