DRAFT 04 Package 4 (Sample Subcontract).pdf

Package 4: Sample Subcontract Request for Proposal FRA RFP No. LBNF-BC-350919-BWQ Beamline Complex Construction

REQUEST FOR PROPOSAL

FRA RFP NO. LBNF-BC-350919-BWQ

for the Construction of the

Long-Baseline Neutrino Facility (LBNF)

Near Site Conventional Facilities (NSCF)

Beamline Complex Construction

Package No. 4 of 4:

SAMPLE SUBCONTRACT

(and Incorporated Documents)

Package 4: Sample Subcontract Beamline Complex Construction

THIS PAGE INTENTIONALLY LEFT BLANK

Request for Proposal FRA RFP No. LBNF-BC-350919-BWQ

TABLE OF CONTENTS

Request for Proposal (FRA RFP No. LBNF-BC-350919-BWQ) Package No. 4 of 4

• Sample Subcontract o Sample Subcontract

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – SUBMIT ANY

QUESTIONS / COMMENTS WITH YOUR PROPOSAL

o FRA General Terms and Conditions

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – SUBMIT ANY

QUESTIONS / COMMENTS WITH YOUR PROPOSAL

o Construction Specifications

NOT INCLUDED AS AN ENCLOSURE

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

o Construction Drawings

NOT INCLUDED AS AN ENCLOSURE

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

o General Wage Decisions No. IL8, IL11 and IL20

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – DO NOT RETURN

o Small Business Subcontracting Plan (FL-55)

ONLY THE SUCCESSFUL OFFEROR/AWARDEE WILL BE REQUIRED TO

PROVIDE A SMALL BUSINESS SUBCONTRACTING PLAN IN ACCORDANCE

WITH FL-55

o Geotechnical Baseline Report

ENCLOSED FOR REFERENCE / BASIS FOR PROPOSALS – DO NOT

RETURN

• Exhibits

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL – DO NOT RETURN

o Statement and Acknowledgement Form (SF1413)

ENCLOSED – ONLY THE SUCCESSFUL OFFEROR/AWARDEE WILL BE

REQUIRED TO EXECUTE AND RETURN THIS DOCUMENT

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

ENCLOSED FOR REFERENCE – ONLY THE SUCCESSFUL

OFFEROR/AWARDEE WILL BE REQUIRED TO SUBMIT BONDS

CONFORMING TO THESE SAMPLES

THIS PAGE INTENTIONALLY LEFT BLANK

Sample Subcontract

ENCLOSED FOR REFERENCE/BASIS FOR PROPOSAL

SUBMIT ANY QUESTIONS / COMMENTS WITH YOUR PROPOSAL

THIS PAGE INTENTIONALLY LEFT BLANK

Fermi Research Alliance, LLC Subcontract No. XXXXXX

CONSTRUCTION SUBCONTRACT

NO. ________

Fermi Research Alliance, LLC, as Manager and Operator of the Fermi National Accelerator Laboratory Kirk and Pine Street, MS 123 Batavia, IL 60510

Subcontractor:

FRA Procurement Specialist:

Name: Brian Quinn Title: LBNF Procurement Specialist Phone: (630) 840-5777

Email: bquinn@fnal.gov

Introduction

This is a firm-fixed price (FFP) Subcontract (“Subcontract”) for Construction Services for the Long-Baseline Neutrino Facility (“LBNF”) Near Site Conventional Facilities (“NSCF”) Beamline Complex at the Fermi National Accelerator Laboratory (“Fermilab”), as further described herein.

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

This Subcontract is issued under Prime Contract No. DE-AC02-07CH11359 between FRA and the U.S.

Department of Energy (“DOE”) for the management and operation of Fermilab and the performance of research and related work.

Agreement The parties agree to perform their respective obligations in accordance with the terms, conditions, and provisions of the attached SCHEDULE OF ARTICLES and the documents referenced or incorporated therein (Contract Documents), which together with this Signature Page shall collectively constitute the entire agreement and shall supersede all prior negotiations, representations, or agreements, whether verbal or written.

INSERT SUBCONTRACTOR FERMI RESEARCH ALLIANCE, LLC

By: By:

Name: Name:

Title: Title:

Date: Date:

mailto:schmitzc@fnal.gov

Contents

ARTICLE 1 – SCOPE OF WORK

ARTICLE 2 – WORK SCHEDULE

ARTICLE 3 – PRICE AND PAYMENT PROVISIONS

ARTICLE 4 – SUBCONTRACTING WITH SUB-TIER CONTRACTORS

ARTICLE 5 – SUBCONTRACT ADMINISTRATION

ARTICLE 6 – SAFETY-RELATED REQUIREMENTS

ARTICLE 7 – NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE

EQUAL EMPLOYMENT OPPORTUNITY

ARTICLE 8 – CHANGES TO THE WORK

ARTICLE 9 – COMPLETION OF CONSTRUCTION

ARTICLE 10 – LIQUIDATED DAMAGES

ARTICLE 11 – INSURANCE

ARTICLE 12 – VALUE ENGINEERING

ARTICLE 13 – ASSIGNMENT OF KEY PERSONNEL

ARTICLE 14 – INCORPORATED DOCUMENTS

SCHEDULE OF ARTICLES

ARTICLE 1 – SCOPE OF WORK

A. Description

The Subcontractor shall perform all work (Work) to provide construction services for the LBNF/DUNE- US NSCF+B Beamline Complex in accordance with this Subcontract. The Work shall include all services, labor, material, storage, handling and installation of material, tools, equipment, excavation, shoring, testing, inspection, hazardous material abatement (if required by the Construction Drawings and Construction Specifications), and all necessary General Conditions, that is required by or may be reasonably inferred from the Subcontract to be required for the completion of the Work and to provide a complete facility with functioning systems.

B. Required Documentation

1. The Subcontractor shall submit to the FRA Procurement Specialist in accordance with the terms of the Subcontract prior to issuance of the Notice to Proceed (NTP):

a. Site-specific Safety Plan and Injury and Illness Prevention Program (IIPP; as required by FRA’s Environment, Safety, and Health [ES&H] Construction Safety Group);

b. Statement and Acknowledgment Form(s) (SF 1413);

c. Insurance Certificate and Endorsements evidencing insurance coverage in accordance with the terms of the Subcontract;

d. Performance and Payment Bonds (per the Payment Bond and Performance Bond clauses of the General Terms and Conditions for Construction);

e. Construction Schedule (as defined in Article 2 of this subcontract; accepted by FRA prior to issuance of NTP);

f. Subcontractor’s Project Quality Plan (as defined in Specification 01 41 00 Quality Requirements), including Definable Features of Work list; and

g. Subcontractor’s submittal log and schedule.

2. The Subcontractor shall submit reports with respect to the Subcontractor’s activities under this Subcontract as identified in the plans and specifications and as FRA may require from time to time.

ARTICLE 2 – WORK SCHEDULE

A. Schedule

1. The period of performance for this Subcontract begins upon issuance of a NTP and ends

2. It is agreed that time is of the essence for this Subcontract and definite and certain lengths of time have been fixed for performance. Work shall be prosecuted regularly, diligently, and uninterruptedly at such rate of progress as will ensure completion thereof within the time specified.

The date of beginning, rate of progress, and time for completion are reasonable and essential conditions of this Subcontract. No act of forbearance by FRA or extension by FRA of the time for performance of this Subcontract shall in any way constitute or operate as a waiver of or excuse for any future default by the Subcontractor. No such action by FRA shall constitute a waiver, release, or relinquishment of any of the rights or powers herein conferred upon FRA.

3. The Construction Schedule shall be a detailed Critical Path Method (“CPM”) using a format satisfactory to FRA that shall also (i) provide a graphic representation of all activities and events that will occur during performance of the Work; (ii) identify each phase of construction and occupancy; and (iii) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Subcontract (hereinafter referred to as “Milestone Dates”). At a minimum, the following Milestones shall be accounted for in the Construction Schedule:

Milestone 0 – ________ – Limited Notice To Proceed (LNTP) Long Lead Equipment

Milestone 1 – ________ – Full Notice To Proceed (NTP)

Milestone 2 – ________ – Utility Handoff to NDC Subcontractor

Milestone 3 – ________ – Target Complex (LBNF-20) substantial completion.

Milestone 4 – ________ – Decay Region substantial completion.

Milestone 5 – ________ – Absorber Complex (LBNF-30) substantial completion.

Milestone 6 – ________ – Extraction Enclosure and Main Injector Service Building (MI-14) commencement date.

Milestone 7 – ________ – Primary Beam Enclosure and Primary Beam Service Building (LBNF-

5) substantial completion.

Milestone 8 –________ – Extraction Enclosure and Main Injector Service Building (MI-14) substantial completion.

Milestone 9 –________ – Extraction Enclosure and Main Injector Service Building (MI-14) Final Completion.

Milestone 10 –________ – Beamline Complex Construction Final Completion.

For purposes of this section, “substantial completion” means that the portion of the Work is sufficiently complete and in accordance with the terms of the Subcontract except only for completion of minor items which do not impair FRA’s ability to occupy and fully utilize the portion of the Work for its intended purpose. Upon FRA’s review and acceptance of the proposed Construction Schedule, including Milestone Dates, the Construction Schedule shall be deemed part of the Subcontract and incorporated without any change in the Subcontract price or required Milestone Dates, including the date of Substantial Completion. If not accepted, the proposed Construction Schedule shall be revised, taking into account FRA’s reasonable recommendations, and resubmitted within five (5) business days.

4. Subcontractor shall monitor the progress of the Work for conformance with the Construction Schedule and shall promptly advise FRA of any delays or potential delays. The Construction Schedule shall be updated to reflect actual conditions not less than monthly or as requested by FRA. In no event shall any Progress Report constitute an adjustment of the time for completion of the Work or compensation due to the Subcontractor, unless any such adjustment is agreed to by FRA and authorized by a Change Order (defined below). Subcontractor shall not make any changes to the critical path without FRA approval.

5. If Subcontractor falls behind to such an extent that the critical path of the Construction Schedule may be at risk as a result of unexcused delays, Subcontractor shall submit a recovery plan (“Recovery Plan”) to FRA within five (5) business days of the discovery of the delay. The Recovery Plan shall detail Subcontractor’s plan to recover to the Construction Schedule. FRA shall review and advise whether the submitted Recovery Plan is sufficient within five (5) business days of receipt. If FRA advises Subcontractor that the Recovery Plan is not sufficient, Subcontractor shall have five (5) additional business days to submit an alternative Recovery Plan. If Subcontractor has not corrected the schedule delay or does not have a Recovery Plan reasonably acceptable to FRA within ten (10) days of the submission of the original Recovery Plan, FRA shall have the right to require the Subcontractor to immediately (i) increase the number of workers performing the affected Work; (ii) increase or change the amount of time or number of work shifts worked;

and (iii) increase or substitute other Subcontractor-provided resources, including the hiring of specialty sub-subcontractors, until the Work has sufficiently recovered the critical path in the judgment of FRA. All additional costs incurred by Subcontractor in providing acceleration to recover delays attributable to Subcontractor shall be paid by Subcontractor. Subcontractor shall reimburse FRA for any extra costs or expenses (including the reasonable value of any services provided by FRA’s employees) incurred by FRA as a result of such delay and Recovery Plan.

B. Delays and Suspensions

The Subcontractor agrees to bear the risk of delays, interferences, obstructions, and inefficiencies to completion of the Work, and that it has entered into this Subcontract with full knowledge of this risk.

Adjustments will be made to the time allotted for Substantial Completion for delays arising from unforeseeable causes beyond the control and without the fault or negligence of the Subcontractor, as described in the Default clause of the General Terms and Conditions for Construction (FAR 52.249- 10), only under the following conditions:

1. Such unforeseeable cause(s) impact the critical path established by the Construction Schedule;

2. Subcontractor is not responsible for a concurrent delay;

3. Subcontractor has made reasonable efforts to re-sequence its Work to minimize delay; and

4. Subcontractor provides notice of the delay in writing within five (5) calendar days of when Subcontractor knew or should have known of the delay and price proposal, or identify specifically any further information Subcontractor requires in order to provide a price proposal, within fourteen

(14) calendar days of the notice.

Without limiting the generality of the foregoing, Subcontractor shall not be entitled to any increase in compensation as a result of any delay, interference, obstruction, or inefficiency unless it is caused by a “Compensable Delay.” A “Compensable Delay” is a delay caused by (i) acts of FRA or any other subcontractor engaged by FRA to perform work at the project site (Separate Subcontractor) in the performance of its subcontract with FRA; (ii) a Change Order required by FRA modifying the Work where such Change Order is not the result of any default or misconduct of Subcontractor or any of its sub-tier contractors or suppliers; (iii) FRA’s decision to suspend the Work for longer than thirty (30) consecutive calendar days, where such a decision is not the fault of Subcontractor or any of its sub-tier contractors or suppliers; or (iv) the failure of FRA or FRA’s representative to perform any material contractual obligation in a timely manner after thirty (30) days’ written notice from Subcontractor, unless such failure is due to the default or misconduct of Subcontractor or any of its sub-tier contractors or suppliers. In the event that Subcontractor is entitled to additional compensation as a result of a Compensable Delay, such compensation shall be limited to Subcontractor’s actual direct costs and expenses incurred as a direct result of such Compensable Delay. In no event shall Subcontractor be entitled to any additional indirect costs associated with running a business and not directly associated with Subcontract Work on the Site (Overhead or G&A) or profit as a result of any Compensable Delay.

Together, overhead and profit shall be referred to herein as “OH&P.”

ARTICLE 3 – PRICE AND PAYMENT PROVISIONS

A. Price

FRA will pay the Subcontractor for the performance of this Subcontract the FFP of _________________________________and 00/100 Dollars ($___________).

This Subcontract price shall constitute full payment for the Work, materials, services, and other items required for performance of this Subcontract, and includes all applicable federal, state, and local taxes, duties, insurance, bonds, and permit fees, and all of the Subcontractor’s other obligations related to such work.

Eligible purchases are not subject to Illinois sales tax per FRA’s Illinois Sales Tax Exemption No.

E99355264 with an expiration date of September 1, 2026. Copies of the certificate will be supplied upon request.

B. Availability of Funds

Funding for the Subcontract price will be obligated on an incremental basis. The total funding amount obligated for the Subcontract price (the “Allocated Funding Limit”) is $________. The Allocated Funding Limit will be adjusted as funds are available from the Government (Department of Energy) and will be reflected in Subcontract Modifications. FRA’s obligation for payment hereunder is expressly limited to the Allocated Funding Limit as modified by Subcontract Modifications (if any), any other provision to the contrary notwithstanding. The Allocated Funding Limit is the amount payable to Subcontractor for performance of the corresponding portion of the Work identified in the cost- and resource-loaded portion of the Construction Schedule as described below.

Subcontractor shall submit a Construction Schedule after Subcontract award in accordance with the terms of the Subcontract. The approved Construction Schedule will identify the portion of the Work to be performed within the Allocated Funding Limit. Upon approval, the Construction Schedule will establish the firm-fixed price of the work corresponding to the Allocated Funding Limit but will not establish a time frame for completion of the work identified as within the Allocated Funding Limit.

Subcontractor shall submit updates to the Construction Schedule as required by the Contract Documents. Subcontractor may re-sequence work that is not on the critical path provided that Subcontractor identifies the portion of the Work to be performed within the Allocated Funding Limit in its updates to the Construction Schedule required by Construction Specification 01 32 00, Section 3.1C. Upon approval, the updated Construction Schedule will establish the firm-fixed price of the work corresponding to the Allocated Funding Limit (but will not establish the time for completion of the work identified as within the Allocated Funding Limit).

FRA has a unilateral right to increase the Allocated Funding Limit. Upon modification of the Subcontract to increase the Allocated Funding Limit, the then-current Allocated Funding Limit is the firm-fixed price for the corresponding work identified in the then-current Construction Schedule. Neither the fixed price for the Subcontract Work nor the fixed price for the work corresponding to the then-current Allocated Funding Limit is subject to any adjustment on the basis of Subcontractor’s cost experience. Subcontractor may not invoice for any work other than the portion of work identified as within the then-current Allocated Funding Limit.

FRA anticipates an additional $________ to be available from October 1, 2025, an additional $________ is anticipated to be available from October 1, 2026, an additional $________ is anticipated to be available from October 1, 2027, an additional $________ is anticipated to be available from October 1, 2028, an additional $________ is anticipated to be available from October 1, 2029 and the remaining balance is anticipated to be available after October 1, 2030.

FRA’s maximum obligation, including any termination obligations and obligations for change orders, equitable adjustments, or unilateral or bilateral contract modifications, at any time, is the Allocated Funding Limit as adjusted by Subcontract Modifications (if any). Subcontractor assumes the risk that, in the event of a Termination for Convenience before the Subcontract is fully funded, the Subcontractor could receive less than the amount authorized by the Subcontract in the absence of this clause. In the event of Termination for Convenience, FRA is only obligated to pay the lesser of the amount of the Allocated Funding Limit (as modified by Subcontract Modifications, if any) or the amount as determined under the Termination for Convenience clause of this Subcontract.

The Subcontractor must notify FRA at the point when the amount payable (which is the portion of the price of the Work within the Allocated Funding Limit the Subcontractor has earned) reaches eighty-five percent (85%) percent of the then-current Allocated Funding Limit. Subcontractor is not authorized or obligated to perform any portion of the Work or otherwise continue performance beyond the level of funding specifically authorized by the then-current Allocated Funding Limit. If FRA does not obligate funds on or before the dates identified in the anticipated funding schedule set forth above, Subcontractor may be entitled to an equitable adjustment under the terms of the Subcontract, but in no event shall the compensation due to Subcontractor exceed the then-current Allocated Funding Limit. Nothing herein modifies or restricts FRA’s rights under the Termination for Convenience clause.

C. Payments

1. The FRA Technical Representative and the Subcontractor shall review the progress of the

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

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

Project Name:

Project Number:

Subcontract Number:

Date of Project Update for this Invoice:

Update Number (as may be applicable):

Total Contract Value: $XXXX.XX Total Dollar Value Earned to Date: $XXXX.XX Less Previous Payments: $XXXX.XX Less Previous Retention: $XXXX.XX

Gross Amount Earned This Update Period: $XXXX.XX

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

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

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

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

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

and

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

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

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

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

mailto:APInvoices@fnal.gov mailto:schmitzc@fnal.gov mailto:jszott@fnal.gov

5. Payment Terms

Payment terms shall be Net 30 days.

Additional Payment terms are included in other documents incorporated into the Subcontract, including the FRA General Terms and Conditions for Construction. Subcontractor must comply with the terms of this Article and all payment terms incorporated into the Subcontract.

ARTICLE 4 – SUBCONTRACTING WITH SUB-TIER CONTRACTORS

A. All sub-tier contracts shall be in writing. The Subcontractor shall incorporate all relevant clauses supplied by FRA for this Subcontract into its sub-tier contracts to ensure full and consistent compliance with the Subcontract, and shall include all relevant Federal Acquisition Regulations (FAR) and Department of Energy Acquisition Regulations (DEAR) requirements, as set out in the General Terms and Conditions for Construction, Clause 16 titled “Special Government Flow Down Provisions,” including but not limited to the requirements of FAR 52.222-1, Subcontracts (Labor Standards). A “sub-tier contractor” means any contractor entering into an agreement with the Subcontractor or any lower tier subcontractor for the furnishing of services required for performance of this Subcontract.

B. If the Subcontractor is not a small business, then it shall submit a subcontracting plan as required in the General Terms and Conditions for Construction.

ARTICLE 5 – SUBCONTRACT ADMINISTRATION

A. FRA Procurement Specialist

The designated FRA Procurement Specialist for this Subcontract is the person authorized to make changes in the requirements of this Subcontract or make modifications to this Subcontract, including changes or modifications to the Work. The Subcontractor shall submit all documents, notices, and requests for approval required by this Subcontract to the FRA Procurement Specialist at the email address indicated on the signature page provided a “read receipt” is obtained, or at the following mailing address:

Brian Quinn LBNF/DUNE-US Procurement Specialist Fermi National Accelerator Laboratory Kirk and Pine Street, MS 123 Batavia, IL 60510

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

B. FRA Technical Representative

John Szott is the FRA Technical Representative for this Subcontract (also called NSCF Resident Engineer), jszott@fnal.gov and (630) 840-8435. The FRA Technical Representative is the person designated to monitor the Subcontract Work and to interpret and clarify the technical requirements but may not modify the terms of this Subcontract.

C. Construction Manager as Advisor (CMa): TBD

D. FRA Construction Coordinator: TBD mailto:jszott@fnal.gov

ARTICLE 6 – SAFETY-RELATED REQUIREMENTS

A. Submissions

Subcontractor must submit an acceptable site-specific ES&H Plan, Injury and Illness Prevention Program (IIPP, Experience Modification Rating (EMR) Rates, and Occupational Safety Health Administration (OSHA) 300 log for the last three (3) years, and the Subcontractor’s ES&H (Corporate Manual) Program, as required by the FRA Section 013100 ES&H Requirements.

B. General

The Subcontractor shall comply with DOE Acquisition Regulation 970.5223-1, Integration of ES&H into Work Planning and Execution, and all ES&H requirements, training, and associated safety documents referenced, attached, or incorporated to this Subcontract, including any incorporated safety-related documents submitted by the Subcontractor and reviewed and accepted by FRA. The Subcontractor shall also comply with, and assist FRA and the DOE in complying with, the ES&H requirements identified in, or applicable to, this Subcontract.

ARTICLE 7 – NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL

EMPLOYMENT OPPORTUNITY

A. The Subcontractor’s attention is called to the Equal Opportunity and Affirmative Action Compliance Requirements for construction clauses of the General Terms and Conditions for Construction.

B. The goals for minority and female participation, expressed in percentage terms for the Subcontractor’s aggregate work force in each trade on all construction work in the covered area, are as follows:

Goal for Minority Participation for Each Trade

Goal for Female Participation for Each Trade

19.6% Kane County 6.9% Kane County

These goals are applicable to the entire Subcontractor’s construction work performed in the covered area. If the Subcontractor performs construction work in a geographical area located outside the covered area, the Subcontractor shall apply the goals established for the geographical area where the work is actually performed. Goals are published periodically in the Federal Register in notice form, and these notices may be obtained from any Office of Federal Contract Compliance Programs office.

C. The Subcontractor’s compliance with Executive Order 11246, as amended, and the regulations in 41 CFR Part 60-4 shall be based on (1) its implementation of the Equal Opportunity clause, (2) specific affirmative action obligations required by the Affirmative Action Compliance Requirements for Construction clause, and (3) its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the Subcontract, and in each trade.

The Subcontractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the Subcontractor’s goals shall be a violation of this Subcontract; Executive Order 11246, as amended; and the regulations in 41 CFR Part 60-4.

Compliance with the goals will be measured against the total work hours performed.

D. The Subcontractor shall provide written notification to the Deputy Assistant Secretary for Federal Contract Compliance, U.S. Department of Labor, within ten (10) working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under this Subcontract.

The notification shall list the name, address, and telephone number of the Subcontractor, employer’s identification number of the Subcontractor, estimated dollar amount of the Subcontract, estimated starting and completion dates of the Subcontract, and the geographical area in which the Subcontract will be performed.

E. As used in this clause, the “covered area” is the county in which the Work will be performed.

ARTICLE 8 – CHANGES TO THE WORK

A. Pursuant to the Changes clause of the General Terms and Conditions for Construction, FRA may direct changes to the Work, including the performance of extra work within the general scope of this Subcontract. FRA will direct changes through written “Change Orders.” “Change Order” means a written order, signed by the FRA Procurement Specialist, directing the Subcontractor to make a change FRA is authorized by the Changes clause to make without the Subcontractor’s consent. Unless the Change Order expressly identifies the change as “extra work,” the directed change shall be performed by the Subcontractor at no additional cost, subject to Subcontractor’s right to request an equitable adjustment through a timely and properly submitted Change Order request.

B. Agreements concerning changes to the Subcontract price or time for performance on account of Change Orders (unliateral direction) or Subcontract Modifications (bilateral agreement) shall be memorialized through Supplemental Agreements as described below. Pricing for Change Orders and bilateral Subcontract Modifications shall take into account Subcontractor’s direct costs, which consist of those for direct labor (including payroll taxes and fringe benefits), materials, supplies, sales taxes, applicable insurance, transportation of materials, General Conditions, and any related bond costs incurred in the direct performance of the changed work. “General Conditions,” means:

superintendents; assistant superintendents; foremen; project engineers; project managers;

schedulers; estimators; drafting or detailing; small tools (replacement cost does not exceed $300);

office expenses including staff, materials, and supplies; on-site or off-site trailer and storage rental and expenses; utilities; data processing personnel and equipment; federal, state, or local business income and franchise taxes. The direct costs shall not include OH&P.

Notwithstanding the foregoing, the following unit prices shall apply to work in the applicable categories:

Item Description Rate Unit of Measure

A. Shoring; support of excavation SF B. Sawcut through existing asphalt LF

C. Sawcut through existing concrete slab-on-grade not exceeding 16" thick

LF

D. Concrete – material only, truck placement 4,500 PSI Mix CY 4,000 PSI Mix CY 3,000 PSI Mix CY 1,500 PSI Mix CY

E. Demolition of small concrete/masonry buildings and structures not exceeding 12' high and 12' wide

CY

F. Excavate for trenches for services not exceeding 6' deepi CY G. Unsuitable soil excavationi

0–100 cubic yards BCY 100–500 cubic yards BCY over 500 cubic yards BCY

H. Unsuitable rock excavation – soft rocki 0–100 cubic yards BCY 100–500 cubic yards BCY over 500 cubic yards BCY

I. Unsuitable rock excavation – hard rocki 0–100 cubic yards BCY

Item Description Rate Unit of Measure

100–500 cubic yards BCY over 500 cubic yards BCY

J.

Off haul to stockpiles on siteii 0–100 cubic yards LCY 100–500 cubic yards LCY over 500 cubic yards LCY

K. Off haul to disposal (offsite)ii

0–100 cubic yards LCY 100–500 cubic yards LCY over 500 cubic yards LCY

L. Removal and disposal of boulders located in Soil Zoneii CF M. Import Fill (i.e., gravel or minus) compacted in place 0–100 cubic yards CY 100–500 cubic yards CY over 500 cubic yards CY

N. Compacted granular fill CY

O MIN. 6" thick compacted aggregate surface course (hardstand) CA-6 - in roadways CY

P. MIN. 10" thick compacted aggregate base course CA-1, if no fabric used

CY

Q. MIN. 10" thick compacted aggregate base course CA-7 or CA-11, including fabric

CY

R.

Pavement – New – Bituminous Asphalt; Min. 4" HMA road section including:

2" IL–19.0L binder course 2" IL–9.5L surface course

SY

S.

Pavement – Repair – Bituminous Asphalt; Min. 4" HMA road section including:

2" IL–19.0L binder course 2" IL–9.5L surface course

SY

T. Rock bolting LF U. Probe hole drilling LF V. Pre-excavation grouting

Mobilization LS Grouting material mixed (material) CY Grouting material installed (labor) Hrs

W. Pressure grouting Mobilization LS Grouting material mixed (material) CY Grouting material installed (labor) Hrs

Item Description Rate Unit of Measure

X. Caissons; drilling, reinforcement, and concrete for shafts 66" diameter (first LF including reinforcement lap) LF 66” diameter LF 54" diameter (first LF including reinforcement lap) LF 54” diameter LF 48" diameter (first LF including reinforcement lap) LF 48” diameter LF

i. Excavation by machine and locally stockpiled on LBNF site

ii. Removal of unsuitable material to existing stockpile on Fermilab property

C. Consistent with FAR 31.109, the following is an advance agreement as to the OH&P that will be applied to the price for change order work:

__% for OH&P in the case of Change Order work performed with the Subcontractor’s forces.

__% for OH&P in the case of material provided by the Subcontractor.

__% for OH&P in the case of third-party rentals provided by the Subcontractor.

__% for OH&P in the case of work performed by the Subcontractor’s sub-subcontractors.

The overhead agreed upon in these percentages has been determined to be fair and reasonable in accordance with FAR 31.2 via the award of this Subcontract and will be fixed for the duration of the Subcontract. These percentages fully compensate Subcontractor for, and will be in full satisfaction of, Subcontractor OH&P associated with the changed work and no adjustment of these rates will be made at a later date for any reason, including any change in market conditions.

D. The maximum percentage of OH&P allowable to a sub-tier contractor for change order work performed by that sub-tier subcontractor shall not exceed 10% of the net price of the applicable Subcontract Modification. The maximum percentage of OH&P allowable to any other sub-tier contractors providing direct supervision of the change order work shall be limited to 5%.

E. The percentages identified herein for OH&P will apply to additive Subcontract Modifications and to deductive Subcontract Modifications as deemed appropriate by the FRA Procurement Specialist.

F. Change Orders and other Subcontract Modifications will be converted into Supplemental Agreements once price agreement is reached or upon resolution of the price under the Disputes clause of the General Terms and Conditions for Construction. “Supplemental Agreement” means a Subcontract Modification that is accomplished by the mutual action of the parties. Supplemental Agreements will represent the complete and final resolution of all issues related to the Change Orders.

1. The Subcontractor agrees to keep adequate documentation to permit the full and complete resolution of all Change Order and Subcontract Modification issues.

2. If the Subcontractor has been required to submit cost or pricing data in connection with any pricing action relating to this Subcontract, FRA, or an authorized representative of FRA, in order to evaluate the accuracy, completeness, and currency of the cost or pricing data, shall have the right to examine and audit all of the Subcontractor’s records, including computations and projections, related to—

(i) The proposal for the Subcontract, Sub-Subcontract, or Subcontract Modification;

(ii) The discussions conducted on the proposal(s), including those related to negotiating;

(iii) Pricing of the Subcontract, Sub-Subcontract, or Subcontract Modification; or

(iv) Performance of the Subcontract, Sub-Subcontract, or Subcontract Modification.

G. Subcontractor shall continue to prosecute the Work pending negotiation of a Supplemental Agreement or final resolution under the Disputes clause of the General Terms and Conditions for Construction, unless requested by FRA to suspend Subcontract Work, provided that FRA continues to pay Subcontractor for the undisputed portion of Subcontractor’s proposed price. FRA and Subcontractor may execute a Supplemental Agreement that is subject to Subcontractor’s reservation of rights to pursue dispute resolution provided that Subcontractor initiates the dispute resolution process within 30 days of execution of such Supplemental Agreement.

H. The Geotechnical Baseline Report (GBR) represents the known ground conditions at the project site.

Subcontractor shall include the cost of all Work required as a result of the physical ground conditions reflected in the GBR and that can reasonably be inferred from it in the Subcontract price. No request for equitable adjustment for differing site conditions shall be allowed based on conditions identified in the GBR.

ARTICLE 9 – COMPLETION OF CONSTRUCTION

A. Substantial Completion

1. Substantial Completion means the stage in the progress of the Work, as determined by the FRA Technical Representative, when the Work is complete and in accordance with the terms of the Subcontract except only for completion of minor items that do not impair FRA’s ability to occupy and fully utilize the Work for its intended purpose.

2. Upon notification by the Subcontractor that the Work is substantially complete, the FRA Technical Representative or designee will inspect the Work and provide the Subcontractor with a comprehensive list of items to be completed or corrected before establishing Substantial Completion. Subcontractor shall proceed promptly to complete and correct items on the list. The FRA Technical Representative or designee will then re-inspect the Work to determine whether all items have been completed and corrected. Failure to include any item on the list does not alter the Subcontractor’s responsibility to complete all Work in accordance with the Subcontract.

3. When the FRA Technical Representative determines that the Work is substantially complete, and following any necessary inspection by other FRA personnel or consultants to determine that the building is safe for occupancy, the Technical Representative will notify the Subcontractor in writing that the Work is substantially complete. The notification will establish the date of Substantial Completion and the responsibilities of FRA and the Subcontractor for security, maintenance, utilities, insurance, and damage to the Work.

B. Authorization for Use and Possession (AUP)

FRA reserves the right to occupy or otherwise make use of any part of the Work at any time prior to Substantial Completion or Final Completion, herein referred to as Authorization for Use and Possession (AUP), upon ten (10) days’ written notice to the Subcontractor. Such AUP shall be at no additional cost to FRA, except as provided in this Article, and shall be subject to the following conditions:

1. The FRA Technical Representative or designee will inspect the portion of the Work to be occupied and prepare a list of items to be completed or corrected prior to Final Completion. The Technical Representative will notify the Subcontractor in writing of FRA’s intent to beneficially occupy a portion of the Work.

2. AUP shall not be construed by Subcontractor as an acceptance by FRA of that portion of the Work under the AUP and shall not constitute a waiver of existing claims of either FRA or the Subcontractor against each other.

3. Subcontractor shall provide as required, in the areas covered under the AUP, utility services, heating, and cooling for systems which are in operable condition at the time of AUP. All responsibility for the operation and maintenance of equipment shall remain with Subcontractor while the equipment is so operated.

4. FRA will pay all normal operating and maintenance costs resulting from its use of equipment in AUP areas and all utility costs, which arise out of the AUP and will use its best efforts to prevent its use from interfering with the conduct of Subcontractor’s remaining Work.

5. The Warranty period, as described in Clause 6.4 Warranty (Construction) of the General Terms and Conditions for Construction, will commence upon the first date of actual occupancy or use of the portions of the Work actually occupied and equipment or systems fully utilized. Equipment or systems shall not be considered fully utilized until all parts of the Work served by the equipment or systems are actually occupied and used.

6. The Subcontractor shall not be responsible for providing security in the AUP areas or required to repair damage caused by FRA in the AUP areas but shall continue to maintain all insurance required by this Subcontract in full force and effect during FRA’s occupancy.

C. Final Completion

1. Upon receipt of notice from Subcontractor that the Work is ready for final inspection, the FRA Technical Representative or designee will make such inspection. Final Completion shall be when the FRA Technical Representative determines that the Work is fully complete and in accordance with the Subcontract, including without limitation satisfaction of all “punch list” items.

2. Final Completion is conditioned upon receipt of the following:

a. The final Application for Payment and required supporting documentation; and

b. All guarantees and warranties procured by the Subcontractor from its Subcontractors, all operating manuals for installed equipment, all as-built documents, and all other submittals required by this Subcontract.

ARTICLE 10 – LIQUIDATED DAMAGES

A. The Subcontractor acknowledges and agrees that time is of the essence in completing the Work required hereunder and that FRA will incur substantial damages due to any failure by the Subcontractor to achieve Milestone #1, #2, #4 or #7 on or before the date established in Article 2 – WORK SCHEDULE above. Therefore, if the Subcontractor fails to achieve the Milestones on or before the scheduled dates, the Subcontractor shall pay FRA liquidated damages as follows:

1. For each calendar day after the Scheduled Milestone Date (#1) for the Utility Handoff, liquidated damages shall accrue at the rate of $5,000.00 per Calendar day.

2. For each calendar day after the Scheduled Milestone Date (#2) for the Target Complex (LBNF- 20), liquidated damages shall accrue at the rate of $18,000.00 per Calendar day.

3. For each calendar day after the Scheduled Milestone Date (#4) for the Absorber Complex (LBNF- 30), liquidated damages shall accrue at the rate of $10,000.00 per Calendar day.

4. For each calendar day after the Scheduled Milestone Date (#7) for the Extraction Enclosure, liquidated damages shall accrue at the rate of $5,000.00 per Calendar day.

B. FRA may deduct any liquidated damages from any amounts due the Subcontractor, or FRA may require the Subcontractor to pay any liquidated damages, which exceed amounts due the Subcontractor, within ten (10) days after FRA’s request. Liquidated damages are FRA’s sole damages remedy against the Subcontractor for project delays in reaching Milestone #2, Milestone #3, Milestone #5 or Milestone #8. However, FRA’s right to recover liquidated damages shall in no way limit (a) FRA’s entitlement to damages for any other injury, damage, or loss, other than for delay, or (b) other nondamage remedies (e.g., the right to terminate the Subcontract) to which FRA may be entitled pursuant to the terms of the Subcontract or applicable law.

C. FRA reserves the right to deduct any amounts due from Subcontractor from amounts due to Subcontractor under any subcontract between FRA and Subcontractor.

ARTICLE 11 – INSURANCE

A. Insurance Requirements for this Subcontract

The Subcontractor shall, at its own expense, provide the following types and levels of insurance coverage, which shall be maintained in full force and effect during performance of the Work and as required by this Subcontract. FRA reserves the right to require, as an alternative to certain coverages required herein, Subcontractor’s and sub-subcontractor’s enrollment in an owner-controlled insurance program (OCIP).

1. Commercial General Liability Insurance Minimum Limit

a. Per Occurrence $1,000,000

b. Products/Completed Operations Aggregate $2,000,000

c. Personal and Advertising Injury $1,000,000

d. General Aggregate $2,000,000

Limits shall be “per project.” No exclusions, restrictions, or other limitations on coverage for the following will be allowed:

1. Explosion, collapse, or underground (XCU) hazards where the Work involves such hazards

2. Claims by one insured against another insured, if the exclusion or restriction is based solely on the fact that the claimant is an insured, and there would otherwise be coverage for the claim (e.g., no cross-suits exclusion)

3. Claims for property damage to the contractor’s Work arising out of the products-completed operations hazard where the Work was performed by a Subcontractor

4. Claims for indemnity arising out of injury to employees of the insured

5. Claims related to subsidence or movement, where the Work involves such hazards

6. Claims for Acts of Terrorism (U.S. Certified Acts of Terrorism coverage—TRIPRA)

7. Requirement to reimburse insurer for defense costs expended on behalf of a named or additional insured

2. Business Automobile Liability Insurance Minimum Limit

a. For Owned, Scheduled, Non-Owned, or Hired Automobiles $2,000,000

The automobile liability insurance shall cover liability to third parties related to the Subcontractor’s use of owned, scheduled, non-owned, or hired vehicles, including the Subcontractor’s use of any FRA-furnished U.S. Government-owned vehicles, and any resulting loss or destruction of, or damage to, FRA-furnished U.S. Government-owned vehicles.

3. Excess Liability

a. Per Occurrence $75,000,000

Policy must be excess over all required liability policies and follow the form of the underlying insurance. Excess limits must reinstate annually during the Subcontract period of performance and will be subject to a reinstating aggregate limit during the ten- (10) year completed operations period.

Policy will apply before any “other insurance” that is available to additional insured(s), which covers that person or organization as a named insured, and not seek contribution from that “other insurance,” which covers that person or organization as a named insured.

4. Workers’ Compensation as required under Illinois applicable State law, and Employer’s Liability Insurance with a minimum limit of $1,000,000 per accident and employee. No persons performing Work on-site shall be excluded from coverage.

5. Contractor’s Pollution Liability Minimum Limit

a. Per Loss $5,000,000

b. Aggregate $5,000,000

6. Contractor’s Professional Liability Minimum Limit

$5,000,000

This insurance shall be provided if any design is delegated to Contractor, Contractor performs Work under a performance specification or is otherwise required to provide drawings stamped by an engineer. The Contractor’s Pollution Liability and Professional Liability policies may have a combined limit of $5,000,000. If the insurance is written on a claims-made form, it shall continue for three (3) years following completion or termination of this Subcontract and provide for a retroactive date of placement prior to or coinciding with the effective date of this Subcontract.

7. Builders All Risk Insurance

FRA reserves the right to require Subcontractor to obtain Builders’ Risk Insurance on an “all-risk” basis for the full value of the Work in progress and all materials and supplies revised as necessary due to subsequent changes to the Work. FRA and all parties with any insurable interest in the project shall be named as additional insureds, and FRA shall be the loss payee.

8. Contractor’s Property Insurance.

Subcontractor shall maintain insurance covering its own equipment and shall maintain Cargo Insurance or an Installation Floater on materials or equipment during transit and installation to the extent not covered by the Builders Risk policy. Subcontractor’s property insurance shall include waivers of subrogation in favor of the additional insureds.

The Subcontractor shall also provide such other insurance in such amounts which from time to time may reasonably be required by FRA against other insurable hazards relating to the Work to be done.

B. Coverage Requirements

The general liability, business automobile, excess liability, and pollution liability insurance policies must provide coverage as additional insureds for Fermi Research Alliance, LLC; the University of Chicago, Universities Research Association, Inc.; Construction Manager as Advisor (CMa) (TBD) and the U.S.

Government, and must include a waiver of subrogation in favor of the additional insureds on a primary and noncontributory basis. The general liability policy will extend coverage to the additional insured for ongoing and completed operations. Completed operations coverage shall be maintained for the named and additional insureds for a period of 10 years after final completion. The Workers’ Compensation policy shall include a waiver of subrogation in favor of the additional insureds.

The required insurance shall be obtained from insurance companies authorized to do business in Illinois that have an A.M. Best rating of A: VII or better, or an equivalent Standard & Poor’s rating of AA or better or Moody’s rating of Aa or better, or that are acceptable to FRA.

The insurance shall not be subject to a self-insurance retention (SIR) or deductible of $100,000 or more without the written approval of the FRA Procurement Specialist.

The Subcontractor or its insurers shall provide written notification to the FRA Procurement Specialist at least thirty (30) days in advance of any modification, change, or cancellation of any of the insurance coverage.

The stipulation of required coverage and limits of insurance shall not in any way limit the liability of the Subcontractor.

C. Proof of Insurance

Prior to commencing any Work at a location other than the Subcontractor’s or sub-tier contractor’s…