D GPs - Fixed Price Construction (12-22-23).pdf

University of California Lawrence Berkeley National Laboratory

General Provisions Rev. 12/22/23 Fixed Price Construction Page 1 of 9

GENERAL PROVISIONS FOR FIXED PRICE CONSTRUCTION

INDEX

1. DEFINITIONS 14. CHANGE ORDER PROCEDURE

2. SCOPE OF SUBCONTRACT 15. LIENS AND CLAIMS FOR LABOR OR MATERIALS

3. PAYMENT BOND 16. BUY AMERICAN ACT

4. PERFORMANCE BOND 17. FORCED, CONVICT, AND INDENTURED LABOR

5. SURETIES AND ADDITIONAL PROTECTION 18. SUPERINTENDENCE BY SUBCONTRACTOR

6. WALSH-HEALY PUBLIC CONTRACTS ACT 19. RELEASE OF INFORMATION AND PUBLICATION

7. ASSIGNMENTS 20. NOTIFICATIONS

8. DISPUTES AND CLAIMS 21. LIABILITY FOR INJURIES AND DAMAGES

9. NON-WAIVER OF DEFAULT 22. LAWS, REGULATIONS, AND DOE DIRECTIVES

10. ENVIRONMENT, SAFETY, AND HEALTH 23. ACCEPTANCE OF SUBCONTRACT

11. ACCIDENT PREVENTION PROGRAM REQUIREMENTS 24. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE

12. INJURY REPORTING 25. AUDIT RIGHTS

13. CHANGE ORDER ADJUSTMENTS 26. CLAUSES INCORPORATED BY REFERENCE

CLAUSE 1 – DEFINITIONS

As used herein, the following terms shall have the indicated meanings:

● "CFR" means the U.S. Code of Federal Regulations.

● "DEAR" means the DOE Acquisition Regulation.

● "DOE" means the U.S. Department of Energy.

● "FAR" means the Federal Acquisition Regulation.

● "Government" means the United States Government.

● "LBNL" means the Lawrence Berkeley National Laboratory.

● "Patent Counsel" means the DOE Patent Counsel.

● "Subcontract" means the subcontract between the University and the Subcontractor which includes these General Provisions.

● "Subcontractor" means the party who has entered into this

Subcontract with the University, as identified in the Subcontract.

● The lower-case term "subcontractor" means the Subcontractor's subcontractor(s).

● "University" means The Regents of the University of California, acting through the LBNL.

CLAUSE 2 – SCOPE OF SUBCONTRACT

The scope of the Subcontract shall be limited to the acquisition of fixed price construction.

The Subcontract is entered into under the University's Prime Contract No.

DE-AC02-05CH11231 with DOE for management and operation of LBNL.

CLAUSE 3 – PAYMENT BOND

For subcontracts over $150,000, before a Notice to Proceed is issued or before the Subcontractor is allowed to start work, the Subcontractor shall furnish to the University on the Laboratory's forms and naming the Regents of the University of California and the United States of America as obligee a Payment Bond. If the Subcontract amount is $150,000 or less, other acceptable alternative payment protections are allowed, guaranteeing the payment of claims of laborers, mechanics, material providers, and others. Said bond shall be in the form included with the Subcontract and with sureties acceptable to the University. The cost therefor shall be paid by the Subcontractor.

The penal amount of the Payment Bond or alternative payment protection shall be 100% of the original Subcontract price and, if the Subcontract price increases, an additional amount equal to 100% of the increase.

CLAUSE 4 – PERFORMANCE BOND

(Applicable if the Subcontract amount is $150,000 or more) Upon the execution of this Subcontract the Subcontractor shall furnish to the University a Performance Bond, guaranteeing the faithful performance of this Subcontract. Said bond shall be in the forms hereto attached and with sureties approved by the University. The cost therefor shall be paid by the Subcontractor.

The penal amount of the Performance Bond shall be one hundred percent (100%) of the original Subcontract price and, if the Subcontract price increases, an additional amount equal to 100% of the increase.

CLAUSE 5 – SURETIES AND ADDITIONAL PROTECTION

The University shall approve any surety company which, at the time of execution of this Subcontract, is listed in the U.S. Treasury Department list of Certified Companies (Circular 570), available at:

https://www.fiscal.treasury.gov/surety-bonds/circular-570.html.

The Subcontractor shall promptly furnish additional security as may be required from time to time if the University determines such additional security is necessary to protect the interest of the University and the Government and of persons supplying labor or materials under this Subcontract.

CLAUSE 6 – WALSH-HEALEY PUBLIC CONTRACTS ACT

If this Subcontract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $15,000.00 and is otherwise subject to the Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect.

CLAUSE 7 – ASSIGNMENTS

(a) This Subcontract may be assigned by the University to the Government or a successor-in-interest for management and operation of LBNL.

(b) Except as to assignment of payment due hereunder, the Subcontractor shall have no right, power or authority to sell, mortgage, transfer or assign this Subcontract, any portion hereof, any interest herein or any claim hereunder, nor allow or permit any other party or parties to have any interest in or use any part of the rights or obligations granted hereunder for any purpose whatsoever without the prior written consent of the University.

(c) Neither this Subcontract nor any interest created thereby or any claim here under shall pass by operation of law or otherwise to any trustee or receiver in bankruptcy or to any other receiver or assignee for the benefit of creditors, or to any other party or parties, except as expressly authorized by the University. The breach of the foregoing prohibition, whether voluntary, or by operation of law, by any process or proceeding of any court or by attachment, execution, proceeding in reorganization, composition, insolvency, or bankruptcy, whether voluntary or involuntary, shall be cause for default under this Subcontract.

CLAUSE 8 – DISPUTES AND CLAIMS

(a) Submittal of Claim

(1) Except as otherwise provided in the Subcontract, any dispute between the Subcontractor and the University arising out of this Subcontract, or its breach, which is not informally disposed of by agreement shall be promptly submitted by the Subcontractor to the University as a claim. The term "claim," as used in this clause, shall mean a written request for adjustment or interpretation of Subcontract terms, payment of compensation, extension of time, or other relief with respect to the terms of the Subcontract submitted by the Subcontractor to the https://www.fiscal.treasury.gov/surety-bonds/circular-570.html

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University with adequate supporting data and including a demand for a decision by the University. The term "Adequate supporting data," as used in this clause, shall mean a detailed statement of the basis and supporting reasons for the asserted entitlement and an itemized breakdown of any adjustment or compensation sought.

(2) The Subcontractor shall certify, at the time of submission of the claim, as follows:

“I certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief;

and that the amount requested accurately reflects the Subcontract compensation for which the Subcontractor believes the University is liable, and that I am duly authorized to certify the claim on behalf of the Subcontractor”.

(3) The Subcontractor shall submit a claim in writing, together with all adequate supporting data specified in this Clause, to University as soon as possible but not later than 30 days after the date the Claim arises, provided that after written notification to the University within such time period, the time period for submission of the Claim shall be extended by the number of days specified in writing by the University where the Claim includes compensation sought by a lower-tier subcontractor and the Subcontractor requests an extension of time to permit it to discharge its responsibilities to conduct an appropriate review of the lower-tier subcontractor claim.

(4) Strict compliance with the requirements of this Clause are conditions precedent to the Subcontractor’s right to an informal conference to meet and confer to resolve a claim, mediate a claim, or arbitrate or litigate a claim. Subcontractor specifically agrees to assert no claims via an informal conference, mediation, arbitration or litigation unless there has been strict compliance with the requirements of this clause. The failure of Subcontractor to strictly comply with the requirements of this Clause constitutes a failure by the Subcontractor to exhaust its administrative remedies with the University, thereby denying any court or arbitration panel of jurisdiction to adjudicate the claim.

(b) Decision of University

(1) The University shall review the facts pertinent to the claim and render a written decision. A copy of the decision shall be furnished to the Subcontractor by certified mail, return receipt requested, or any other method that provides evidence of receipt.

(2) The University shall use its best efforts to issue a written decision on a claim within thirty (30) days after receipt of the claim. If a decision is not issued within the stipulated period, the University shall notify the Subcontractor of the time within which the decision will be made. This time period shall depend on the size and complexity of the claim and the adequacy of the Subcontractor's supporting data and other relevant factors. If a decision is not issued on any claim within ninety (90) days after the University's receipt of the claim, the claim shall be considered to have been denied.

(c) Informal Resolution and Mediation

(1) The parties shall attempt to resolve any claim in good faith, by direct, informal negotiations. Pending resolution of the claim, the Subcontractor shall proceed diligently with the performance of this Subcontract, in accordance with its terms and conditions.

(2) The parties shall seek to mediate any claim through the assistance of a neutral third party at any time, but they must seek such assistance no later than 120 days after the date of the University's written decision on the claim. The cost of mediation shall be shared equally by both parties. If requested by both parties, the neutral third party may offer a non-binding opinion as to a possible settlement.

(3) All such informal negotiations between the parties and discussions with a neutral third party shall be confidential and treated as compromise and settlement negotiations, for the purposes of application of rules of evidence.

(d) Arbitration

(1) The decision of the University on any claim may be arbitrated by the Subcontractor or the University. Any written demand for arbitration must be mailed or otherwise furnished to the San Francisco Office of the American Arbitration Association, 417 Montgomery Street, San Francisco, CA 94104-1113. A copy of the demand for arbitration shall be furnished to the University.

(2) The demand shall (i) contain a statement setting forth the nature of the claim, a copy of the University's decision, and a copy of this clause, and (ii) identify this Subcontract by title and number, state the amount involved, if any, and the remedy sought. The demand shall be filed together with the appropriate filing fee, as provided in the AAA Construction Industry Arbitration Rules.

(3) No demand for arbitration on a dispute may be made unless the Subcontractor has submitted a claim to the University and until (i) the University has issued a written decision, or (ii) ninety (90) days after the date of the University's receipt of a claim, if a decision has not been issued by that date.

(4) Timely notice of an intention to arbitrate shall be a prerequisite to an effective election to arbitrate. Except as otherwise provided in this clause, the decision of the University shall be final and conclusive unless the Subcontractor delivers to the University a written notice of the intention to arbitrate, by certified mail, return receipt requested, or any other method that provides evidence of receipt, within:

● 30 days from the date the Subcontractor receives the University's decision on a claim; or

● 180 days after the date of the University's receipt of a claim, if a decision has not been issued by that date.

(e) Rules of Arbitration Except as otherwise provided in this clause, arbitration shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (AAA) in effect on the date the arbitration is initiated, as modified by this clause. The arbitration shall be de novo.

The award rendered by the arbitrator(s) shall be final.

The following additional modifications are made to the AAA rules:

● The arbitrator(s) shall be neutral and appointed by the AAA.

● A claim involving less than $1,000,000 shall be heard by a single arbitrator. The single arbitrator shall be an attorney or retired judge. A claim involving $1,000,000 or more shall be heard by three arbitrators. At least two of the three arbitrators shall be an attorney or a retired judge

● The parties shall have the discovery rights and follow the procedures provided in California Code Civil Procedure section

1283.05. The provisions of subparagraph (e) of section 1283.05 shall not be applicable to such discovery.

● If more than one demand for arbitration is made by a party to this Subcontract with respect to concurrent claims referred to the University, all such concurrent claims shall be consolidated into a single arbitration hearing unless the parties to this Subcontract otherwise agree.

● The Subcontractor's performance bond surety for the project, a Subcontractor or supplier to the Subcontractor, and the Architect may be permitted to join in and be bound by the arbitration if required by the terms of their respective contracts with the Subcontractor or the University. Such joiner shall not be required if it unduly delays or complicates the expeditious resolution of the claim unless a failure to order joiner would be likely to produce inconsistent decisions from separate proceedings among the Subcontractor and University. Any such joiner will be limited to issues raised by the Subcontractor and University directly concerning the claim.

● Unless the parties otherwise agree the locale for the arbitration shall be the San Francisco Bay area.

● The arbitrator(s) shall issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of documents and other evidence in accordance with California Code of Civil Procedure section 1282.6. Witnesses shall be entitled to receive fees and mileage as provided in Code of Civil Procedure section 1283.2.

● The arbitrator(s) shall decide the claim in accordance with the applicable substantive law of California, except that clauses based upon federal regulations will be interpreted in accordance with applicable federal decisions. An award, including an award of costs and fees, is beyond the power of the arbitrator(s) if the award is based on an error of law. The award shall include a determination of all the questions submitted to the arbitrator(s) the decision of which is necessary to determine the claim, and a summary of the evidence and the reasons, factual and legal, for the decision. The award shall be in writing and signed by either the sole arbitrator or by at least a majority if there be more than one. The arbitrator(s) shall have no authority to add to, subtract from, modify, change, alter or ignore in any way the

Fixed Price Construction Page 3 of 9 provisions of this Subcontract or expressly written modification or supplemental agreement thereto, or to extend its duration, unless all the parties hereto have expressly agreed, in writing, to give the arbitrator(s) specific authority to do so.

● Each party to the arbitration shall pay its pro rata share of the arbitrator(s), together with other expenses of the arbitration incurred or approved by the arbitrator(s), not including counsel fees or witness fees or other expenses incurred by a party for its own benefit.

● University may, but is not required to, assert as a counterclaim any matter arising out of the claims asserted by Subcontractor in the arbitration. University’s failure to assert any such counterclaim in an arbitration shall be without prejudice to the University’s right to assert the counterclaim in litigation or other proceeding.

(f) Litigation

(1) The Subcontractor may elect to litigate the University's decision on, or denial of, a claim if the amount of the claim is $100,000 or more.

Such an election shall constitute an irrevocable waiver of the right to arbitrate.

(2) No demand for litigation on a dispute may be made unless the Subcontractor has submitted a claim exceeding $100,000 to the University and until (i) the University has issued a written decision, or (ii) the one hundred eighty (180) days after the date of the University's receipt of a claim exceeding $100,000, if a decision has not been issued by that date.

(3) Timely notice of an intention to litigate a claim shall be a prerequisite to an effective election to litigate. Except as otherwise provided in this clause, the decision of the University on a claim shall be final and conclusive unless the Subcontractor delivers to the University a written notice of the intention to litigate, by certified mail, return receipt requested, or any other method that provides evidence of receipt, within:

● 90 days from the date the Subcontractor receives the University's decision on a claim; or

● 240 days after the date of the University's receipt of a claim exceeding $100,000, if a decision has not been issued by that date.

(4) The parties hereby elect the Superior Court of the State of California for the County in which the Subcontract was to be performed as the exclusive forum for such litigation.

(5) If the University's decision involves a claim of $100,000 or more, and a party to this Subcontract has demanded arbitration, the other party to this Subcontract shall have seven (7) days from the date of its receipt of the notice of such filing from the AAA within which to file an answering statement of a notice of intention to litigate the decision in lieu of arbitrating

it. If the other party does not deliver a written notice of intention to litigate within the seven (7) day period, by certified mail, return receipt requested, or any other method that provides evidence of receipt, that party shall be deemed to have consented to arbitration and to have irrevocably waived the right to litigate the University's decision. If no answering statement is filed within the seven (7) day period, it shall be considered as a denial of the claim.

(g) Claims Excluded The claims procedures provided in this Clause shall not apply to:

● any claim for or dispute about penalties or forfeitures prescribed by statute or regulation which another State or Federal agency is specifically authorized to administer, settle or determine;

● any claim for or respecting personal injury or death or reimbursement or other compensation arising out of or resulting from liability for personal injury or death;

● any claim or dispute for fraud and misrepresentation;

● any claim or dispute for stop payment requests or stop notices or the procedures authorized by the clause entitled "Liens And Claims For Labor And Materials;"

● any claim related to the approval, refusal to approve, or substitution of subcontractors, regardless of tier, and supplies or;

● any claim based on or involving noncompliance with or violation of any applicable health, safety or environmental regulations, statutes or provision(s).

(h) Continuance of Performance Pending any University decision on a dispute or claim, award by the arbitrator(s), or a final adjudication by the courts, the Subcontractor shall proceed diligently with the performance of this Subcontract and in accordance with the University's decision, and the University shall pay for such performance in accordance with the payment terms of this Subcontract, unless the parties to this Subcontract otherwise agree in writing.

CLAUSE 9 – NON-WAIVER OF DEFAULT

Any failure by the University at any time, or from time to time, to enforce or require the strict keeping and performance of any of the terms or conditions of this Subcontract shall not constitute a waiver of such terms or conditions and shall not affect or impair such terms or conditions in any way nor the right of University at any time to avail itself of any remedies as it may have for any breach of such terms or conditions.

CLAUSE 10 – ENVIRONMENT, SAFETY, AND HEALTH

The Subcontractor shall take all reasonable precautions in the performance of the work under this Subcontract to protect the health and safety of employees and members of the public, to minimize danger from all hazards to life and property, and to prevent injury to any of its employees or other persons; and shall comply with all applicable environmental, safety, health, and fire protection regulations and requirements, including those of the University and DOE (including reporting requirements). Such precautions shall include, but shall not be limited to, compliance with the LBNL Non Smoking Policy and all safeguards and warnings necessary to protect workers and others against any conditions on University or Government premises which could be dangerous and to prevent accidents of any kind whenever work is being performed in proximity to any moving or operating machinery, equipment, or facilities, whether such machinery, equipment, or facilities are the property of or are being operated by the Subcontractor, its lower-tier subcontractors, the University, or other persons. The safety of all persons employed by the Subcontractor and its subcontractors on University or Government premises, or any other person who enters thereupon for reasons relating to this Subcontract, shall be the sole responsibility of the Subcontractor.

The Subcontractor shall immediately take action to correct any noncompliance with the requirements of this clause. In the event that the Subcontractor fails to comply with said regulations or requirements of the University or the DOE, the University may, without prejudice to any other legal or contractual rights of the University, issue a stop-work order stopping all or any part of the work; thereafter, a start order for resumption of the work may be issued at the discretion of the University. The Subcontractor shall make no claim for an extension of time or for compensation or damages by reason of or in connection with such work stoppage.

CLAUSE 11 – ACCIDENT PREVENTION PROGRAM REQUIREMENTS

The Subcontractor shall submit the following to the University prior to start of any construction work, unless otherwise advised.

(1) A descriptive outline of its accident prevention program. The University will provide a job hazards analysis checklist form that can serve as the descriptive outline.

(2) A report of its injury, accident, fire, and property damage experience, including motor vehicle, for the previous two (2) years.

(3) Detailed site-specific safety/work plans. Examples of areas to be covered are:

● Fire protection systems.

● Industrial Safety: Fall protection, scaffolding, trenching and/or shoring, etc.

● Industrial Hygiene: Confined spaces; radiological and asbestos-containing materials handling; use of chemicals, oils, solvents, paints, epoxies, adhesives, binders, and gases.

● Environmental Protection: Washdown/spilling/release of water or liquids to storm or sanitary sewer systems; abrasive blasting;

generation of hazardous wastes.

(4) The name and qualifications of the job site management official assigned responsibility for the Subcontractor's safety, accident prevention, and fire protection program.

https://commons.lbl.gov/display/rpm2/Nonsmoking+Policy#NonsmokingPolicy--1898802862

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The University's written authorization to proceed with construction may be withheld until the University receives an acceptable Subcontractor safety program, including required site-specific safety/work plans.

CLAUSE 12 – INJURY REPORTING

(Applicable if the Subcontract involves performance by ten or more Subcontractor employees at LBNL sites.)

(a) Subcontractor shall report all injuries to Subcontractor's employees that qualify for inclusion on Subcontractor's Cal-OSHA log to the University within 10 days of occurrence of the injury. Subcontractor shall furnish a copy of its supplemental injury report form (OSHA form 301 or equivalent) for each such case. This report shall be emailed to injury-review@lbl.gov.

In addition, serious injuries resulting in death (including any death occurring 30 days following a work-related incident) or in-patient hospitalization and all amputations and all losses of an eye shall be reported by telephone immediately to the LBNL Health Services, (510) 486-6266.

(b) Subcontractor shall report to the University the hours worked by Subcontractor's employees on the LBNL Site on a quarterly basis. For each quarter, the hours worked shall be reported in writing no later than the 10th day of the month following the end of the quarter (i.e. January 10th, April 10th, July 10th, October 10th). This report shall be emailed to injury-review@lbl.gov.

CLAUSE 13 – CHANGE ORDER ADJUSTMENTS

Price adjustments resulting from change orders issued pursuant to CHANGES clause not covered by unit price or alternate bids shall be determined in accordance with the following:

(1) For change order work performed by the Subcontractor and/or its affiliates, the price adjustments shall be based on the agreed-upon estimate for the direct costs for labor, payroll taxes and fringe benefits, materials, supplies, sales taxes, applicable insurance, and transportation of materials, plus a fixed mark-up rate of 15% of such direct costs (for indirect costs and profit), to which shall be added any related bond costs.

(2) For change order work performed by a second-tier subcontractor, the price adjustments shall be based on the estimated direct costs plus the fixed mark-up rate of 15%, as established in paragraph 1 above, to which the Subcontractor may add 5% plus any related bond costs.

(3) For change order work performed by a third-tier and/or lower-tier subcontractor(s), the price adjustments shall be based on the estimated direct costs plus the fixed mark-up rate of 15%, as established in paragraph 1 above, to which the higher-tier subcontractor(s) may add a fixed mark-up rate of 5%, (for indirect costs and profit) and the Subcontractor may add a fixed mark-up rate of 5% (for indirect costs and profit) plus any related bond costs. Performance of change order work by a third or lower-tier subcontractor must be approved in advance by the University Technical Representative.

For reductions or omissions not covered by unit prices or alternate bids, the Subcontractor agrees that the University shall be credited with an agreed-upon for the estimated direct costs that would have been incurred in connection with the reduced or omitted work, plus the applicable fixed mark-up rates.

The estimated direct costs for change order work and reduced or omitted work shall consist of those for labor (including payroll taxes and fringe benefits), materials, supplies, sales taxes, applicable insurance, transportation of materials, and any related bond costs, and shall be consistent with the cost principles and procedures for construction contracts in FAR Part 31 (48 CFR Part 31), as may be supplemented by DEAR Part 931 (48 CFR Part 931), then in effect. No increases for indirect costs and profit shall be allowed above the fixed mark-up rates herein provided, regardless of the number of subcontractors involved.

Change order requested work that involves adjustments to the schedule for performance of the work must include justification for the requested schedule adjustment. The Subcontractor shall provide a critical path and analysis demonstrating the effect of the proposed change to the schedule.

Requests for adjustments to the schedule will be rejected as non-compliant without the appropriate justification.

The Subcontractor shall maintain separate accounts for each change or series of related changes, by job order or other suitable accounting procedure. The Subcontractor shall maintain such accounts until the parties agree to an equitable adjustment for the changes ordered by the University or the matter is conclusively resolved. The University may require change order accounting documentation whenever the estimated cost of a change or series of related changes exceeds $25,000.

CLAUSE 14 – CHANGE ORDER PROCEDURE

(a) Instructions The information listed below is required to be submitted by the Subcontractor with any proposal for additive or deductive changes or modifications to the Subcontract. Previously submitted information used to substantiate a prior proposal is not required to be resubmitted with the new proposal, provided the information is explicitly referenced and identified. The Subcontractor shall ensure that all lower-tier subcontractors' proposals include the required submission information identified below. Proposals that do not include, as a minimum, the required information listed below, will be rejected as non-compliant. The Subcontractor shall be responsible for any construction delays resulting from incomplete or improper change order proposals.

(b) General Submittals All proposals for additive or deductive changes or modifications to the Subcontract must include the following:

(1) A summary of all costs by cost element.

(2) Identification, description, and submittal of all rate agreements utilized.

(3) Identification and submittal of cost or pricing data which are based on verifiable factual information.

(4) Documentation and explanation of the estimating process used, including the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data.

(c) Materials Proposals involving materials must include the following:

(1) An explanation of the basis for the kinds, quantities and cost of all material elements proposed.

(2) A priced bill of material for the entire proposal showing part number/description, unit cost, quantity required, extended cost, basis for the proposed price (quotation, prior buy, similar item, etc.) and the rationale for the proposed price, unless an alternate method of estimating material costs has been accepted by the University.

(3) A summary by class of material (subcontracts, purchase parts, raw materials, etc.) showing base material costs and any factors applied (i.e. escalation, attrition, usage variance, etc.) and the basis for the development and application of these factors.

(4) Specific subcontract effort to be performed and identification of each subcontractor. For each subcontract change, provide a listing by source, item, quantity, and price, including the results of review of subcontract proposals. Where the required data or reviews have not been made available, provide the reasons for the omission.

(5) Identification of any inter organizational transfers. Provide complete supporting data and basis for these transfers.

(d) Direct Labor Proposals involving direct labor must include the following:

(1) Identification of labor hours by Task by labor category/skill mix.

(2) Identification of rate agreement. In the absence of a labor rate agreement, provide a component breakdown of each labor rate by category. Identify any adjustment factors to these rates including the effect of union agreements, insurance adjustments, etc.

(e) Other Job Site Costs Proposals involving other job site costs must include a list all other costs by category/element (utilities, equipment rental, supervision, etc.) and provide supporting schedules and rationale for the amount proposed for each category element.

(f) Markups Proposals involving markups must reflect the allowable percentages, in accordance with the CHANGE ORDER ADJUSTMENTS clause.

CLAUSE 15 – LIENS AND CLAIMS FOR LABOR OR MATERIALS

Nothing in this Clause is intended to convey that mechanic’s lien can properly be filed with respect to the work, notwithstanding the following Subcontractor obligations. The Subcontractor agrees that at any time upon request of the University it will submit a sworn statement setting forth the work performed or material furnished by the subcontractors, suppliers and material men, and the amount due to become due to each, and that before final payment called for hereunder, the Subcontractor will, if requested, Fixed Price Construction Page 5 of 9 submit to University a complete set of vouchers showing what payments have been made for material and labor used in connection with the work called for hereunder.

The Subcontractor shall:

(1) Indemnify and save harmless the University and the Government from all claims, demands, causes of action, or suits, of whatever nature, arising out of the services, labor and materials furnished by the Subcontractor or its subcontractors under this Subcontract, and from all laborers', material men's and mechanics' liens upon the real property upon which the work is located or any other property of the University or the Government.

(2) Promptly notify the University in writing of any such claims, demands, causes of action, or suits brought to its attention. The Subcontractor shall forward with notification copies of all pertinent papers received by the Subcontractor with respect to any such claims, demands, causes of action, or suits, and, at the request of the University, shall do all things and execute and deliver all appropriate documents and assignments in favor of the University or the Government of all the Subcontractor's rights and claims growing out of such asserted claims, as will enable the University and the Government to protect their respective interests by litigation or otherwise.

Neither the final payment nor any part of the retained percentage shall become due until the Subcontractor, if required, delivers to the University a complete release of all liens arising out of this Subcontract, or receipts in full in lieu thereof, as the University may require, and, if required in either case, an affidavit that as far as it has knowledge or information, the releases and receipts include all the labor and material for which a lien could be filed; but the Subcontractor may, if any subcontractor refuses to furnish a release or receipt in full, furnish a bond satisfactory to the University to indemnify it against any claim by lien or otherwise. If any lien or claim remains unsatisfied after all payments are made, the Subcontractor shall refund to the University all amounts that the latter may be compelled to pay in discharging such lien or claim, including all costs and reasonable attorney's fees.

Any subcontractor, material man, or workman, or anyone else having any claim against the Subcontractor for or on account of work done or material furnished for the performance of the work provided for here under, may give written notice of said claim and the amount thereof to the University, who may, but shall not be obliged to, thereupon withhold from payments due or to become due thereafter to the Subcontractor an amount equal to such claims until such claims are adjusted and paid. The provisions of this clause shall not lessen or diminish but shall be in addition to the right or duty of the University to withhold any payments under the provisions of the laws of the State of California respecting the withholding of sums due to the Subcontractor.

CLAUSE 16 – BUY AMERICAN ACT

The FAR clause 52.225-9, BUY AMERICAN ACT – CONSTRUCTION MATERIALS (included by reference below) requires that only domestic construction material be used in the performance of this Subcontract. The use of any non-domestic materials under this Subcontract must be approved by the University prior to installation. Unapproved, non-domestic materials delivered to the project site shall be immediately removed from the site by the Subcontractor at the Subcontractor's expense. If non-conforming materials are installed, the Subcontractor shall remove the non-conforming material from the work and replace the material with approved domestic material, at the Subcontractor's expense.

If the cost of removal is prohibitive, as determined by the University, and the non-conforming material otherwise meets the requirements of the specifications, the cost of the non-conforming material shall be deducted from the Subcontract amount.

CLAUSE 17 – FORCED, CONVICT, AND INDENTURED LABOR

(a) By signing or accepting this Subcontract, the Subcontractor hereby certifies that no foreign-made equipment, materials, or supplies furnished to the University pursuant to this Subcontract will be produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction.

(b) Any Subcontractor subcontracting with the University who knew or should have known that the foreign-made equipment, materials, or supplies furnished to the University were produced in whole or in part by forced labor, convict labor, or indentured labor under penal sanction, when entering into a subcontract pursuant to the above, may have any or all of the following sanctions imposed:

(1) The Subcontract under which the prohibited equipment, materials, or supplies were provided may be voided at the option of the University.

(2) The Subcontractor may be removed from consideration for University subcontracts for a period not to exceed 360 days.

CLAUSE 18 – SUPERINTENDENCE BY SUBCONTRACTOR

At all times during performance of this Subcontract and until the work is completed and accepted, the Subcontractor shall directly superintend the work or assign and have on the worksite a competent superintendent and any necessary assistants, each of whom must be satisfactory to the University. The superintendent shall not be changed except with the consent of the University, unless the superintendent proves to be unsatisfactory to the Subcontractor or ceases to be in its employ. The superintendent shall have the authority to act for the Subcontractor in the Subcontractor's absence; and all notices, directions, and instructions given to the superintendent shall be as binding as if given to the Subcontractor.

The Subcontractor shall give efficient supervision of the work, using its best skill and attention. It shall carefully study and compare all drawings, specifications and other instructions and shall at once report to the University any error, inconsistency or omission which it may discover.

Subcontractor shall be responsible for any resulting losses, and shall not be entitled to recover additional compensation, to the extent Subcontractor performs related work without providing prompt notice under this paragraph.

CLAUSE 19 – RELEASE OF INFORMATION AND PUBLICATION

(a) The Subcontractor agrees that information regarding this Subcontract, any data developed or obtained, and the name of the University, the Lawrence Berkeley National Laboratory (LBNL), or the Government shall not be disclosed in any publications, news releases, advertising, speeches, technical papers, photographs, and other releases of information without prior written approval from the University Procurement Representative.

CLAUSE 20 – NOTIFICATIONS

(a) Subcontractor shall immediately notify the University Procurement Representative in writing of: (1) any action, including any proceeding before an administrative agency, filed against the Subcontractor arising out of the performance of this Subcontract; and (2) any claim made against the Subcontractor, the cost of which is reimbursable hereunder.

(b) Subcontractor agrees to notify the University of any government tax, fee, or charge levied or purported to be levied on or collected from the Subcontractor in connection with this Subcontract which the Subcontractor has reason to believe may be inapplicable or invalid, and which would be reimbursable or the University has claimed an exemption hereunder.

Subcontractor also agrees to refrain from paying any such tax, fee, or charge, unless otherwise authorized by the University, and to take such steps as may be required by the University to cause such tax, fee, or charge to be paid under protest and, if so directed by the University, to cause to be assigned to the University or its designee any and all rights to the abatement or refund of any such tax, fee, or charge, and to permit the University or its designee to join with the Subcontractor in any proceedings for the recovery thereof or to sue for recovery in the Subcontractor's name.

(c) If, at any time during the performance of this Subcontract, the Subcontractor becomes aware of any circumstances which may jeopardize its performance of all or any portion of the Subcontract, it shall immediately notify the University Procurement Representative in writing of such circumstances, and the Subcontractor shall take whatever action is reasonably necessary to resolve such circumstances within the shortest possible time.

CLAUSE 21 –LIABILITY FOR INJURIES AND DAMAGES

The Subcontractor assumes the entire responsibility and liability for losses, expenses, damages, demands, and claims in connection with or arising out of any personal injury (including death), and/or damage or destruction or alleged damage to or destruction of property, sustained, or alleged to have been sustained, in connection with or arising out of the performance of the work by the Subcontractor, its agents, servants, employees, subcontractors and consultants, save and except that the Subcontractor, its agents, servants, employees, subcontractors and consultants shall not be liable for the sole negligence of the University.

The Subcontractor shall indemnify and hold harmless the University and the Government, their officers, agents, servants, and employees from any and all liability for such losses, expenses, damages, demands, and claims, Fixed Price Construction Page 6 of 9 and shall defend any suit or action brought against any or all of them based on any alleged personal injury or property damage, and shall pay any damages, costs and expenses, including attorney’s fees, in connection with or resulting from such suit or action.

The indemnification obligations under this Clause 21 shall not be limited by any assertion or finding that (1) the person or entity indemnified is liable by reason of nondelegable duty, or (2) the losses were caused in part by the negligence of, breach of contract by, or violation of law by Indemnitee.

The obligation to defend shall arise regardless of any claim or assertion that Indemnitee caused or contributed to the losses.

Nothing in this Subcontract, including the provisions of this Clause 21, shall constitute a waiver or limitation of any rights which indemnitee may have under applicable law, including without limitation, the right to implied indemnity, to the extent the Subcontractor is indemnified under said law.

FURTHER, SUBCONTRACTOR EXPLICITLY WAIVES ANY RIGHT IT

HAS TO IMMUNITY UNDER APPLICABLE INDUSTRIAL INSURANCE

LAWS AND AGREES TO INDEMNIFY, DEFEND AND HOLD THE

UNIVERSITY AND THE GOVERNMENT, THEIR OFFICERS, AGENTS,

SERVANTS, AND EMPLOYEES HARMLESS FROM ANY AND ALL

LIABILITY, LOSSES, COSTS, EXPENSES AND FEES ARISING OUT OF

CLAIMS OR LAWSUITS BROUGHT BY SUBCONTRACTOR’S

EMPLOYEES OR ANY OF ITS SUBCONTRACTORS’ EMPLOYEES

FOR BODILY INJURIES OR DEATH SUSTAINED WHILE PERFORMING

SERVICES HEREUNDER.

CLAUSE 22 – LAWS, REGULATIONS AND DOE DIRECTIVES

All delivered items and all services performed under this Subcontract shall be in compliance with all applicable federal, state, and local laws, ordinances, statutes, codes, rules, and regulations (including DOE regulations), including but not limited to those relating to wages, hours, employment, discrimination, immigration, and safety (including OSHA.)

The Subcontractor shall also comply with the Contractor Requirements Document (CRD) of any DOE Directive referenced within the Subcontract or these General Provisions.

Except as otherwise directed in writing by the University Representative, the Subcontractor shall procure all necessary permits or licenses required for the performance of work under this Subcontract.

CLAUSE 23 – ACCEPTANCE OF SUBCONTRACT

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

In the event the Subcontractor's business status indicated in the Subcontract or the Subcontractor's proposal is not accurate and current, in accordance with applicable Federal laws, executive orders, and regulations, the University may cancel this Subcontract, without further obligation.

CLAUSE 24 – ENTIRE AGREEMENT AND ORDER OF PRECEDENCE

This Subcontract shall consist of the Subcontract document (including any signature page and schedule of articles), these General Provisions, and any other referenced or incorporated clauses, provisions, and documents, which is the entire agreement between the parties concerning the subject matter hereof and supersedes all prior proposals, representations, negotiations, or agreements, whether written or oral.

Any inconsistencies in the terms and conditions comprising the Subcontract shall be resolved by giving precedence in the following order:

(a) the Subcontract document; (b) these General Provisions, including the FAR and DEAR clauses listed in the clause entitled Clauses Incorporated by Reference; (c) any specifications (including drawings); (d) other documents listed in the Subcontract Article entitled Incorporated Documents, if any, in the order in which they are listed; and (e) any other referenced or incorporated clauses, provisions, and documents.

CLAUSE 25 – AUDIT RIGHTS

In addition to all other rights of the University in this Subcontract, the University shall have access to and the right to copy all of Subcontractor’s books, records, contracts, correspondence, instructions, drawings, receipts, vouchers, purchase orders, and memoranda relating to the work, in both hard copy and electronic form. Subcontractor shall preserve all such records for a period of at least 4 years after Final Completion.

CLAUSE 26 – CLAUSES INCORPORATED BY REFERENCE

The FAR and DEAR clauses listed below, which are located in Chapters 1 and 9 of CFR Title 48 and available at https://www.ecfr.gov/current/title-48 are hereby incorporated by reference as a part of these General Provisions, as prescribed below. The Subcontractor shall include the listed clauses in its subcontracts at any tier, to the extent applicable.

As used in the clauses, the term "contract" shall mean this Subcontract;

the term "Contractor" shall mean the Subcontractor; the lower case term "subcontractor" shall mean the Subcontractor's subcontractor; and the terms "Government" and "Contracting Officer" shall mean the University, except in FAR 52.227-1, 52.227-2 , and 52.227-19, and DEAR 970.5227- 5 and 970.5232-3, in which clauses "Government" shall mean the U.S.

Government and "Contracting Officer" shall mean the DOE Contracting Officer for Prime Contract DE-AC02-05CH11231 with the University. As used in FAR 52.245-1, the terms "Government" and "Contracting Officer" shall mean the University, except with respect to title. As used in DEAR 970.5232-3, the term “DOE” shall mean DOE and the University.

For clauses that reference a “DEVIATION” see clause text in Prime Contract DE-AC02-05CH11231 with the University.

THE FOLLOWING CLAUSES APPLY TO ALL SUBCONTRACTS:

DEAR 952.203-70 WHISTLEBLOWER PROTECTION OF

SUBCONTRACTOR EMPLOYEES (DEC 2000).

Applies if the Subcontract involves any work at a DOE owned or leased site.

DEAR 952.204-77 COMPUTER SECURITY (AUG 2006). Applies if the Subcontractor has access to any computers owned, leased or operated by or on behalf of LBNL or DOE.

DEAR 970.5204-2 LAWS, REGULATIONS AND DOE DIRECTIVES

(DEC 2000) (DEVIATION). References in this clause to "Appendix I", "Appendix I/List A" or “Appendix B” are replaced with "these General Provisions" and the words "Contract", "Contractor" and "Contracting Officer" are replaced with "Subcontract", “Subcontractor" and “University Procurement Representative", respectively.

FAR 52.203-19 PROHIBITION ON REQUIRING CERTAIN

INTERNAL CONFIDENTIALITY AGREEMENTS

OR STATEMENTS (JAN 2017)

FAR 52.204-23 PROHIBITION ON CONTRACTING FOR

HARDWARE, SOFTWARE, AND SERVICES

DEVELOPED OR PROVIDED BY KASPERSKY

LAB AND OTHER COVERED ENTITIES (NOV

2021)

FAR 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR

DISPUTES (FEB 1997)

FAR 52.222-4 CONTRACT WORK HOURS AND SAFETY

STANDARDS ACT – OVERTIME

COMPENSATION (MAY 2018). Only applies when work involves employment of laborers or mechanics.

FAR 52.222-21 PROHIBITION OF SEGREGATED FACILITIES

(APR 2015)

FAR 52.222-26 EQUAL OPPORTUNITY (SEP 2016)

Note: Download the required Know Your Rights Poster at:

https://webapps.dol.gov/elaws/firststep/poster_dire ct.htm?p_eeo=1&_ga=2.162302842.738766324.1 605452866-895731500.1605452866

FAR 52.222-50 COMBATING TRAFFICKING IN PERSONS (NOV

2021)

FAR 52.222-55 MINIMUM WAGES UNDER EXECUTIVE ORDER

14026 (JAN 2022) Only applies when FAR clause 52.222-6 or 52.222-41 is applicable.

FAR 52.222-62 PAID SICK LEAVE UNDER EXECUTIVE ORDER

13706 (JAN 2022) Only applies when FAR clause 52.222-6 or 52.222-41 is applicable…