Solicitation for release

Section SF 1449 - CONTINUATION SHEET

JLOTS TUG BARGE REQUIREMENT

Section SF 1449 - CONTINUATION SHEET

Attachment Table of Contents

INTRODUCTION

This requirement is a proposed time charter for one or two ocean going tugboats in support of JLOTS operations in the vicinity of Port Au Prince, Haiti.

Charter period will be 120 days with the right to redeliver anytime after 15 days.

Laydays will commence/cancel on 31 Jan 2010.

An Offeror may propose one or more tugs.

NOTES ON CONTRACT

SCHEDULE OF SUPPLIES AND SERVICES

1. The Schedule of Supplies and Services follows as CLINS under this contract.

2. INVOICE INSTRUCTIONS:

a. Invoices shall be submitted in accordance with the instructions in FAR clause 52.212-4 and Addendum. Please note that IAW 52.212-4, among other things, each invoice is required to have the Contract Number and a point of contact with telephone number in the event of a defective invoice.

b. Please submit invoices to:

Military Sealift Command

Attn: N83

914 Charles Morris CT SE

Washington Navy Yard, DC 20398-5540

CHARTER HIRE

FFP

FOB: Destination

NET AMT

FUEL

NET AMT

PORT CHARGES

NET AMT

DESCRIPTION OF SERVICES

PERFORMANCE WORK STATEMENT. This is a Charter Party contract for one or two ocean going tugs (minimum 2,500 hp), as time-charters for off-shore Port au Prince, Haiti. The requirement is for a period of 120 days with the right to redeliver anytime after 15 days. Only the tug(s) named or substituted in accordance with the Substitution of Tugs clause may be used under this contract.

The following duties will be required:

(1) Configured to prevent metal to hull contact with military cargo vessel while assisting vessel to maintain ship’s heading into the wind. Tow and position floating cargo such as RO/RO discharge facility, Army and Navy lighterage and floating piers.

PLACE OF PERFORMANCE. The place of performance shall be in the geographical region of Port au Prince, Haiti and the surrounding navigable waters. Within this geographical region, the Tug may be ordered to any berth, dock, anchorage, wharf, place, open roadstead, submarine line, or alongside any vessel, barge, lighter, submarine, craft, hull, derrick, or object of whatsoever nature that the Government may direct, provided the Tug can always lie safely afloat except in harbors or waters where it is customary and safe in the port to work aground. Tug must be able to operate in seas up to sea state 3.

Charter period. This Charter Party shall be for 120 days with the right to redeliver anytime after 15 days, commencing upon the date shown or the Charterer's acceptance of the Tug(s), which ever occurs later, and continuing until either the date of completion or the completion of the required services of the voyage then current, at Charterer's sole option.

Delivery. The Tug(s) and all Associated Equipment shall be delivered in the condition described below to the Charterer at Port au Prince, Haiti (port INCHOP), not later than 0600 hours local time (place of delivery) on the canceling date stated but not before the listed early date for delivery. The Contractor shall give written notice of readiness during office hours to the appropriate Government representative at the port or place of delivery. Government inspection of the Vessel shall be completed within a reasonable amount of time thereafter, not exceeding twenty-four (24) hours after proper tender of the notice of readiness. Charterer shall notify contractor of the specific time and place of delivery and redelivery. Hire shall commence upon acceptance of the Tug(s) by the Charterer but not before the commencing date stated in the solicitation, unless approved in writing in advance by the Contracting Officer. Charterer shall have the liberty to cancel this Charter at no cost to the Government should the Tug(s) or Associated Equipment not be ready in accordance with the provisions hereof by the canceling date. Said cancellation is to be declared not later than twenty-four (24) hours after 0600 hours local time (place of delivery) on the stated canceling date. Nothing in this paragraph shall limit any remedy of the Government otherwise available at Law, in Equity or under this Charter Party contract.

Condition. The Vessel and all Associated Equipment (lines, wires, capstans, winches, and associated equipment to perform services as required) shall be seaworthy, properly and efficiently manned and trained, equipped, supplied, and in every way suitable and adequately fitted for and in all respects ready for the service contemplated under this Charter Party. Any Associated Equipment shall upon delivery be as described in this Charter Party and all equipment shall be operable. The Owner shall exercise due diligence to maintain the Vessel and Associated Equipment in such state during the period of the Charter Party.

Redelivery. Unless lost, the Vessel shall be redelivered at Port au Prince, Haiti (port INCHOP). Charterer shall notify Contractor of the place and date of redelivery no later than the time shown in the statement of work.

REQUESTS FOR SERVICE

REQUESTS FOR SERVICE

Requests for services within the scope of this Charter Party contract may be issued by:

a) Contracting Officer; or

b) Port Operations Officer, or his /her designee; or

c) Contracting Officer’s Representative (COR).

AVAILABILITY / NOTIFICATION

Availability. The Tugs will be available 24 hrs/day, seven days/week during the required availabilities. The Tug shall be fully crewed and ready for service in accordance with required performance periods.

RATE STRUCTURE

DAILY HIRE RATE STRUCTURE

(a) Daily Hire:

Except as otherwise provided herein, the daily hire rate shall be considered payment in full for all services of the Tug and Associated Equipment and all other requirements under this Charter Party contract, including, but not limited to penalty time, bonuses, payments, and emoluments payable to Master, Officers and crew for services under this Charter, irrespective of the geographic scope of said service and the nominal carriage of ammunition and hazardous cargoes. The Daily Hire rate shall also be considered payment in full for all overtime, including but not limited to crew overtime or penalty time required for the making up or breaking of tows. This Rate does not include port charges or the price that the Contractor pays for fuel.

(b) The rates to be paid under this Charter Party contract, as offered and accepted at the time of award, are provided in the table, Offered Rates, which shall be filled in by the Government at the time of award.

POINTS OF CONTACT

CONTRACTING QUESTIONS:

(a) Contracting Officer, Kenneth D. Allen, COMSC N1033 (202) 685-5825

(b) Contract Specialist, Craig Miller, COMSC N1033 (202) 685-5078

(c) Contracting Officer’s Representative, TBD

OPERATIONAL QUESTIONS:

(d) Thomas Walters, PM5 (202) 685-5829

SUBSTITUTION OF TUGS:

Substitution of tugs is authorized, but only for good cause shown and upon proper notice to the Government and approval of the Contracting Officer. Notice of intent to substitute by the Contractor shall identify the tug being substituted and the tug for which substitution is being made and shall provide the Contracting Officer with sufficient information on which to base a determination regarding good cause for substitution and the acceptability of the nominated substitute vessel. Notice shall be submitted in writing and shall be submitted sufficiently in advance to permit the Contracting Officer to make a reasoned determination regarding good cause and substitute tug suitability. If circumstances require oral notification, said notice shall provide all of the above required information and shall include a statement of circumstances that preclude a written notice prior to substitution. Confirmation of the information given in an oral notice shall be submitted to the Contracting Officer in writing within forty-eight (48) hours of the giving of oral notification.

The Contractor shall fix and deploy a substitute Tug within a period of six (6) hours of submission of notice of substitution or within six (6) hours of the commencement of any off-hire. (See clause 52.212-4 Addendum, “Off-hire” paragraph, whichever occurs first.

Any tug offered as a substitute shall have substantially the same characteristics, i.e., shall be similarly fitted and otherwise equal or superior in performance, as the tug for which substituted and shall be fully ready to perform in accordance with this Charter Party upon arrival at the work site designated by Charterer. Any tug substituted under this Clause shall result in no cost increase for Charterer and substitution shall result in no operation delay for Charterer except as provided above. It shall not otherwise excuse any other performance required under this Charter party.

Contracting Officer’s notice of acceptance or rejection of the substitute tug shall be made within reasonable time following Owner’s nomination thereof, provided that the Contracting Officer is furnished sufficient information on which to base such a determination. Silence of the Contracting Officer shall not be construed as acceptance of any nominated tug.

Notwithstanding Charterer's prior acceptance of any substitute tug under this paragraph, Charterer may at any time reject any previously accepted substitute vessel if it is determined that the characteristics of that substitute tug were misrepresented by the Contractor or are otherwise unsuited to the requirements of this contract.

TUG COMPLEMENT AND CREW:

The Master(s), Officers and entire crew shall speak English fluently and possess valid and current certificates, licenses, and documents. The Master, Officers and crew of the Tug(s) shall be appointed or hired by the Contractor and shall be deemed to be the servants and agents of the Contractor at all times except as otherwise expressly specified in this contract. The Master(s) of the Tug(s) shall be under the direction of the Government as regards the employment of the Tug(s) under a given order, but shall not be under Government's orders as regards navigation, care, and custody of the Tug(s).

All contractor employees shall have in their possession photo identification at all times when working under this Charter Party Contract.

If the Charterer shall have reason to be dissatisfied with the conduct or performance of the Master, Officers, or crew, the Contractor shall, on receiving particulars of the complaint, investigate the matter and, if necessary to alleviate the cause of the complaint, make a change in personnel.

OFF-HIRE

General. In the event of the loss of time resulting from deficiency and/or default of men including but not limited to misconduct, illness, injury, strikes, labor disruptions, lockouts; deficiency of stores; fire; breakdown of or damage to hull, machinery, or equipment; collision; stranding; grounding; detention by authorities; average accidents to Vessel or cargo unless resulting from inherent vice, quality, or defect of the cargo; repairs; inspections; all dry-dockings including those for the purpose of examination/inspection or painting bottom but not for those dry-dockings under the Alterations clause contained herein; or deviation for the purpose of landing any ill or injured person on board other than any passenger, supercargo, or military personnel who may be carried at Charterer's request; or by any other cause whatsoever preventing the full working of the Vessel, the payment of hire shall cease for all time lost until the Vessel is again, at a position not less favorable to the Charterer than that at which such loss of time commenced, ready and in a fully efficient state to resume her service. Should the Vessel deviate or put back during a voyage contrary to the orders or directions of the Charterer for any reason, the hire is to be suspended from the time of her deviating or putting back until she is again, at a position not less favorable to the Charterer than that at which such loss of time commenced, ready and in a fully efficient state to resume her service. When the period of time lost to the Charterer on any one occasion is less than two (2) consecutive hours, the hire shall not be reduced for such period, provided no missions were missed during that period of time.

Costs for Owner. The cost of fuel consumed while the Vessel is off-hire, as well as all port charges, pilotages, and other expenses incurred during such period and consequent upon the putting in to any port or place other than that to which the Vessel is bound, shall be borne by the Owner.

LOSS OF VESSEL

Loss of Vessel. Should a Tug be either lost or missing, or become a constructive total loss, the portion of the charter for such Tug shall terminate and hire shall cease to be payable at the time of the loss or, if said time is unknown, at the time of the Tug’s last received communication. If the Tug should be off-hire or missing when a payment of hire would otherwise be due, such payment shall be postponed until the off-hire period ceases or the safety of the Tug is ascertained, as the case may be.

PASSENGERS AND INSURANCE

PASSENGERS, SUPERCARGO AND GOVERNMENT REPRESENTATIVES.

(a) Charterer’s Option. The Charterer shall have the option of carrying passengers, assigning officers and/or enlisted personnel aboard the Vessel for duty purposes and appointing supercargo (supercargo as used herein is both plural and singular) as far as accommodations and inspection certification allow. If supercargo remains onboard for over 24 hours, Charterer shall, in accordance with the Pass Through Reimbursables clause of this Statement of Work (See below, paragraphs 45-52.), pay an amount of $30.00 per day, per person, covering all expenses including accommodations and victualling. Owner shall victual all other U.S. Government representatives, pilots, and Customs Officers when authorized by Charterer. Charterer shall pay $7.00 per meal for all such authorized and approved victualling provided as a result thereof.

(b) Military Personnel. In addition to the carriage of personnel noted in subparagraph above, Charterer shall have the option to assign other military personnel aboard the Vessel. Such personnel are not to require victualling or berthing facilities from the Vessel unless requested by the military commander aboard, in which case the Owner will, in accordance with the Pass Through Reimbursables clause of this SOW, be reimbursed out-of-pocket expenses not to exceed the amount per person per day set forth in the subparagraph above. Charterer will supply life floats and jackets for the use of such military personnel carried aboard the Vessel during the Charter period. Such items are to be removed by Charterer at termination of Charter.

(c) Charterer’s Liability. The Charterer shall be liable to the Owner for any loss of the Vessel's fittings or appurtenances or any damage to the Vessel, her fittings, or appurtenances caused by the act of passengers, supercargoes, evacuees, or military personnel in the embarkation, carriage, or debarkation of passengers, supercargoes, evacuees, or military personnel to the extent such loss or damage is not payable under the Vessel's insurance policies. However, the Charterer shall not be liable for such damage unless written notice specifying such damage and, if obtainable, the name of the party or parties causing such damage shall have been given to the Charterer or its authorized representative within a reasonable time. Payment for any such loss or damage shall be by agreement of the parties and failure to agree shall be resolved under the FAR clause 52.212-4 (d) Disputes.

INSURANCE.

(a) General. During the full period of this Charter Party, Owner shall maintain a Certificate of Insurance, which shall be furnished upon delivery of the first vessel, evidencing the insurance coverage listed below. The expense for such insurance coverage shall be for the Owner's account and shall be deemed to be included in the rates payable under this Contract.

(b) Broad Form Tower's Liability Insurance (including damage to the Tow) on each tug performing under this Contract in the amount of generally accepted industry standards, with trading limits adequate for the services contemplated herein;

(c) Tower's Protection and Indemnity Liability Insurance on each Vessel performing under this Contract in the amount of generally accepted industry standards, with trading limits adequate for the services contemplated herein;

(d) Hull and Machinery Insurance on the Vessel(s) performing under this Contract, with trading limits adequate for the services contemplated herein.

(e) Reserved.

(f) Limitation of Liability. Except as otherwise specifically provided herein, the Charterer shall not be liable for any loss, damage, expense, cost, deductibles or liability whatsoever and howsoever incurred by the Owner or Vessel, or which are imposed upon Owner or Vessel by operation of law. Any amount due to the Owner under this section shall be subject to setoff by Charterer to the extent of any amount recovered under insurance carried by Owner, or to the extent of any amount recoverable under insurance required by subparagraph (a) above.

(g) Notification of Charterer. Owner shall, to the maximum extent practicable, keep the Charterer, through the Contracting Officer, currently informed in writing as to the potential vitiation, suspension, lapse, or termination of any of Vessel's insurance policies as a consequence of this Charter Party. All policies shall contain an endorsement stating that any cancellation or material change in the coverage adversely affecting the Government's interest shall not be effective unless the Contractor provides written notice of the same to the Contracting Officer.

(h) Charterer Named Assured. The United States of America shall be named as an additional assured with waiver of subrogation under the Owner's Broad Form Tower's Liability Insurance policy, the Owner’s Tower’s Protection and Indemnity Liability Insurance (P&I) policy, and the Hull and Machinery Insurance policy (and the Increased Value policy if applicable).

FUEL.

(1) Delivery Bunkers. Upon delivery of the Vessel, the Owner shall present to the Contracting Officer a statement certified by the Owner or its authorized agent showing the amount and grade of fuel on board at the time of delivery with such additional verification as the Contracting Officer may require and the Charterer shall pay the Owner for such fuel at the current market price at the port of delivery upon certification and verification of such statement by the Contracting Officer, except that for charters where the vessel receives no bunkers during the course of the charter, the Charterer shall reimburse Owner for the amount of fuel used during the Charter at the current market rate at delivery port at time of delivery. The Charterer shall pay for the on-hire bunker survey if performed by an independent surveyor and required by the Contracting Officer. The Owner shall provide additional bunkers as may be required by the Charterer prior to the acceptance of the Vessel by the Charterer; and the Charterer shall reimburse the Owner all costs directly connected with the bunkering of the additional fuel, including but not limited to lighterage, dockage and similar charges, and taxes related therewith.

(2) Provision of Fuel. The Charterer shall ordinarily supply or cause to be supplied any or all of the fuel required by the Vessel during the period of this Charter. The grade of such fuel is to be specified by the Owner, and the grade supplied shall be at least that grade unless otherwise mutually agreed.

(3) Fuel Oil Sampling and Testing.

a. For charters exceeding six months, the Owner shall provide and install a "continuous drip-type" fuel oil testing flange to obtain fuel samples. The Charterer shall bear all costs for fuel testing. The Charterer will provide to the Owner all sample bottles, primary sample containers, seals, and prepaid mailers necessary for collecting and testing bunker fuel. During each bunkering, the Owner shall be responsible for collecting the primary sample by IMO MARPOL VI specified continuous drip sample method, and then generating four individual samples from the primary sample. All samples shall be clearly labeled, sealed and serialized. The four individual samples consist of the 1) MARPOL, 2) Offship Lab, 3) Vendor and 4) Offship Retest samples. The Owner shall retain the MARPOL sample in accordance with MARPOL VI regulations, mail the Offship Lab sample to the Charterer’s designated fuel lab using the prepaid mailer, offer the Vendor sample to the fuel supplier, retain the Offship Retest sample until the later of the time that the fuel is consumed or 90 days. The Owner shall record the serial numbers and disposition of all sample bottles in the Ship’s Log.

b. For charters of six months or less, the Owner shall perform and bear all costs associated with fuel testing. At a minimum the Owner shall collect, seal, and serialize a MARPOL VI retained sample and an Offship Test sample. The Owner shall have the Offship sample tested in accordance with ISO 8217:2005 for the fuel bunkered. All test results shall be forwarded by email to msc.mschq-fuel.fct@navy.mil .

Testing laboratory confirmation of compatibility and specifications of newly on-board delivered fuel shall constitute acceptance by Owner. The Vessel shall not be off-hire in the event of delay resulting from the supply of fuel found to be off specification, unless for want of due diligence by Owner. If the Owner loads such fuel on the Vessel at his own expense, the Charterer shall reimburse the Owner the reasonable expenses of such loading.

(4) Owner’s Purchase of Fuel. The Owner shall, if directed by the Charterer, purchase fuel for the Vessel, in which case the Charterer shall reimburse the Owner the cost of all fuel (excluding lube oils and slop removal) procured by the Owner and loaded in the Vessel during the period of this Charter. If the Owner is required to incur costs under this paragraph by the Charterer, the Charterer shall thereafter reimburse the Owner for the reasonable expenses of such fuel upon presentation of properly certified vouchers, supporting receipts, and other documentation which justify the charges as fair and reasonable in accordance with Part II(i) (Payment) above. The Owner shall not, however, be reimbursed any amount in excess of the current market price of such fuel at the place of loading plus all reasonable expenses incurred by the Owner in loading said fuel on board the Vessel. The title to all fuel for the cost of which the Owner is entitled to be reimbursed hereunder shall automatically pass to and vest in the Charterer upon delivery to the Owner or upon the happening of any other event by which title passes from the vendor or supplier thereof to the Owner, in the case of any such fuel which is purchased for the performance of this Charter. The Charterer shall be afforded all benefits of Owner's contracts for its fuel requirements, including but not limited to any savings addressed in paragraph (ab) (Savings) below.

(5) Off-Hire. If the Vessel should go off-hire during the period of this Charter, the Owner shall present to the Contracting Officer a statement certified by it or its authorized agent showing the amount of fuel on board at the time the off-hire period commenced and the amount of fuel on board when the off-hire period ended. The Charterer shall be credited for the cost of the fuel consumed during the off-hire period and also reasonable expenses incurred in loading such fuel, with such costs based upon costs at the previous refueling point.

(6) Redelivery. Upon redelivery of the Vessel, the Owner shall present to the Contracting Officer a statement certified by the Owner or its authorized agent showing the amount of fuel on board at the time of redelivery. A bunker survey conducted by an independent bunker surveyor approved by the Charterer shall be performed at the port of redelivery or such other place as the Charterer shall direct, at Owner's time and expense. The Charterer shall be credited with the value of fuel on board at the time of redelivery, computed at the current market price at the port of redelivery, except that for charters where the vessel receives no bunkers during the course of the charter, the Charterer shall reimburse Owner for the amount of fuel used during the Charter at the current market rate at delivery port at time of delivery.

(7) Reasonable Expenses. The term "reasonable expenses" as used in this paragraph, shall mean all reasonable costs excluding crew overtime which are necessarily incurred in loading said fuel on board the Vessel such as expenses incurred at tanker terminal; loading fuel from lighters, barges, or other craft used as lighters, including lighterage, lighter demurrage, or detention incurred; cost of shifting lighters for the convenience of the Vessel, handling lighter lines; and such similar expenses which the Charterer shall find were necessarily incurred in the loading of fuel on the Vessel during the period of this Charter.

REIMBURSABLE SUPPLIES AND SERVICES (CHARTERS) (MAR 2005)

(1) The Government will reimburse the Contractor only for the actual price paid for those supplies and services that are expressly identified as reimbursable items by this contract. “Actual price" paid by the Contractor for such supplies and services, includes tax paid, if any, and reduced by any and all credits and rebates, whether accrued or realized, associated with the supplies and services provided. “Actual price” does not include material handling charges, overhead, general and administrative costs, profit, or any other indirect cost that is in any way associated with the Contractor’s purchase or provision of such supplies and services. The parties expressly agree that the offered and accepted daily rate includes all costs incurred or paid by the Contractor, including but not limited to material handling charges, overhead, general and administrative costs, or profit, that are in any way associated with the Contractor’s purchase or provision of such supplies and services.

(2) To be eligible to receive reimbursement for services and supplies identified in this contract as reimbursable items and obtained in support of this contract, the Contractor must obtain at least three quotes for each transaction in excess of $2,500 to ensure that adequate price competition was sought or the Contractor must provide an acceptable justification as to why it was impracticable to do so. In the case of fuel purchases, unless directed otherwise by the Contracting Officer, the Contractor shall provide the documentation listed in subparagraphs (i) through (iii) below to the Contracting Officer for approval, prior to purchasing fuel. For purchases of services and supplies and other than fuel, the Contractor need provide the aforementioned documentation only when requested by the Contracting Officer. The Contractor shall maintain documentation of all reimbursable purchases until three years after the contract is completed and shall provide access to and copies of such documentation when requested by the Contracting Officer.

(i) A description of the supplies or services to be subcontracted.

(ii) Identification of the proposed subcontractor and price.

(iii) Suppliers contacted and price quotes. Include other pertinent data such as price lists used if suppliers were not contacted and information regarding the selection if other than price-related factors were considered.

(3) The Contracting Officer may reduce the reimbursement by any amount above that which the Contracting Officer finds, in his/her sole discretion, is greater than that which is fair and reasonable for the supplies or services provided, giving due consideration to the facts and circumstances prevailing at the time that the Contractor procured the supplies and services. Disputes as to the amount by which any reimbursement is reduced shall be resolved in accordance with the “Disputes” clause of the contract. It shall be the Contractor’s burden to demonstrate that the price it paid for reimbursable supplies and services was fair and reasonable.

(4) When the Contractor expects total funding expended for reimbursable items to reach 85 percent of the total funds available on each Reimbursable Supplies and Services CLIN, the Contractor shall notify the Contracting Officer and the COR and any other Government official identified by the Contracting Officer. The notice shall state the estimated amount of additional funds required to continue performance for the period specified in the Schedule. The Contractor shall not exceed or incur costs that exceed the amount of funding stated on each Reimbursable Supplies and Services CLIN at the time a reimbursable item is ordered.

(5) The Government is not obligated to reimburse the Contractor for otherwise reimbursable supplies and services in excess of the funded amount stated in the Schedule under each Reimbursable CLIN.

(6) The Contractor is not obligated to continue performance of any reimbursable work under this Contract or otherwise incur costs for reimbursable supplies or services in excess of the funded amount stated in the Schedule under each Reimbursable CLIN unless the Contracting Officer notifies the Contractor that the funded amount stated in the Schedule under the applicable Reimbursables CLIN has been increased. Notification shall be in writing. In the event notification is made orally, such notification shall be followed up in writing within two working days.

(7) No notice, communication, or representation from any person other than the Contracting Officer shall affect the Government’s obligation to reimburse the Contractor.

(8) Change orders shall not be considered an authorization to exceed the funded amount stated in the Schedule under the Reimbursable CLIN unless they contain a statement expressly increasing the funded amount of the Reimbursables CLIN by a sufficient amount to cover the change order.

PLANS AND REPORTS

STRIKE CONTINGENCY PLAN.

(a) The Contractor shall provide and maintain a strike contingency plan that describes how services will be provided if there is a labor strike or any other deficiency of Master or crewmembers. The plan must be practicable and must clearly state the means and method for vessel manning during a strike or labor action and for providing services in the face of disruptive measures typical of a strike situation. Award of the contract shall indicate the Contracting Officer’s approval of the plan, whose approval shall not be unreasonably withheld.

(b) The Contractor shall update the plan as necessary but no less frequently than yearly and not later than 30 days before the last day for the exercise of each option to extend contract term. Exercise of an option to extend the term of the contract shall indicate the Contracting Officer’s approval of the updated plan, whose approval shall not be unreasonably withheld.

VESSEL CASUALTY PLAN.

(a) The Contractor shall provide and maintain a vessel casualty plan that describes how services will be continued if there is a casualty to the Tug or to a system that makes the Tug inoperable or incapable of safely providing a required service. The plan must be practicable and must clearly state the means and method for timely acquisition and deployment of a substitute tug in the event of a vessel casualty. Award of the contract shall indicate the Contracting Officer’s approval of the plan, whose approval shall not be unreasonably withheld.

(b) The Contractor shall update the plan as necessary but no less frequently than yearly and not later than 30 days before the last day for the exercise of each option to extend contract term. Exercise of an option to extend the term of the contract shall indicate the Contracting Officer’s approval of the updated plan, whose approval shall not be unreasonably withheld.

INCIDENT REPORTS. In all instances in which any vessel being handled by Owner’s Tug(s) sustains damage or is involved in any incident resulting in damage to vessels or property, or in bodily injury or death, Owner shall secure a report from the Tug Master or Officer acting as pilot, and from any licensed pilot aboard the vessel being handled. Owner shall submit said report to the Contracting Officer within twenty-four hours following said incident, reporting the facts, listing deaths, reporting the extent of damages to property and any bodily injuries, and listing recommendations to prevent recurrence.

CLAUSES INCORPORATED BY FULL TEXT

52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 2000)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):

http://www.arnet.gov/far/ http://www.acq.osd.mil/dp/dars/dfars/dfars.html

(End of clause)

CLAUSES INCORPORATED BY REFERENCE

CLAUSES INCORPORATED BY FULL TEXT

52.212-4 CONTRACT TERMS AND CONDITIONS-- COMMERCIAL ITEMS (MAR 2009)

(a) INSPECTION/ACCEPTANCE (Tailored).

(1) The Tug and Associated Equipment shall be subject to the Charterer's inspection as to suitability of the required service prior to delivery and at any subsequent time during the term of this Contract to determine continued suitability for the required service, including but not limited to a determination as to whether the material condition of the Tug and/or Associated Equipment might prevent or impair effective operation during the basic and any exercised optional periods of this Contract.

(2) This Contract may be terminated in whole or in part at no cost to the Charterer upon Contractor’s failure to correct any discrepancy in the condition of the Tug or Associated Equipment, which discrepancy prevents or materially impairs the performance of any required service, within a reasonable time after receipt of notice of such discrepancy.

(3) The remedies provided by this paragraph shall not limit any other remedy available at Law or in Equity, or otherwise provided under this Contract.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) CHANGES (Tailored). The Contracting Officer may order changes within the general scope of any of the terms and conditions of this Contract. If any such change causes an increase or decrease in the cost of performance, such change will be the subject of a bilateral modification to the Contract. Failure to agree as to the increase or decrease in the cost of performance shall be resolved under the “Disputes” paragraph of this Contract.

(d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) DEFINITIONS (Tailored). The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) EXCUSABLE DELAYS (Tailored).

1. Neither the Contractor nor the Charterer shall, unless otherwise in this Charter Party expressly provided, be liable to the other for any delay, loss, damage or failure in performing hereunder arising out of or resulting from an occurrence such as, acts of God; acts of the public enemy, pirates, or assailing thieves; arrest or restraint of princes, rulers, or peoples; seizure under legal process provided bond is promptly furnished to release the Vessel; flood; fire; blockade; riot, insurrection, or civil commotion; earthquake; storm; lightning; epidemic; or explosion.

2. The Vessel shall have the liberty to sail with or without pilots, to tow and to be towed, to assist vessels in distress, and to deviate for the purpose of saving life or property, or to go into dry dock or into ways with or without cargo, passengers or other personnel, as applicable, onboard.

3. Notification. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

4. Reservation. The exceptions identified in subparagraph (1) above shall not be such as to affect the Contractor's warranties respecting the condition of the Vessel nor the Contractor's obligations respecting the services specified.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include--

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, contract line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer--Central Contractor Registration, or 52.232-34, Payment by Electronic

Funds Transfer--Other Than Central Contractor Registration), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.--

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall--

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the--

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected contract line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in Section 611 of the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if--

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on--

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) RISK OF LOSS. (Tailored). Any and all costs associated with the following shall be for the sole account of the Contractor without recourse to the Charterer provided that, during preparations for or performance of services under this Charter Party contract, any of the following results from any negligence, wrongful act, or omission of Contractor or its agents, servants, employees, or subcontractors; or from any unseaworthiness, unfitness, or breakdown of the Tug or any gear or other equipment furnished by Contractor:

1. Injury or death of Master or crew of the Tug, or of Captain, Officers;

2. Injury or death of any other person aboard the Tug;

3. Loss or damage of whatsoever nature sustained by the Tug;

4. Loss or damage of whatsoever nature caused to or suffered by third parties or their property by reason of contact with the Tug, or by any obstruction created by the presence of the Tug;

5. Any liability in respect to wreck removal for the Tug, or in respect to the expense of moving or lightening or buoying the Tug, or in respect to preventing or abating pollution originating from the Tug.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) WARRANTY (Tailored).

1. Contractor warrants that the Tug shall be in full conformity with the requirements of this Charter Party Contract from the time of delivery and thereafter. Should any specification of the Tug offered and accepted by award of the Contract be in excess of a specification stated in the solicitation or elsewhere in this Contract, the offered and accepted specification shall prevail over the required specification and the Contractor warrants full conformity with the specification as offered and accepted.

2. The Contractor warrants that the Tug and all Associated Equipment shall be in full compliance with all applicable International Conventions and all applicable laws, regulations, and other requirements of the nation of registry and of the nation(s) and local jurisdictions to whose port(s) and/or place(s) it is contemplated that the Tug will be ordered hereunder.

3. The Owner further warrants that the Tug shall have onboard all certificates, records, or other documents required by the aforesaid conventions, laws, regulations, and requirements, including a Certificate of Financial Responsibility meeting the requirements of the U.S. Coast Guard and promulgated pursuant to the U.S. Federal Water Pollution Control Act, as amended, and/or the Oil Pollution Act of 1990.

4. Complement. The Owner warrants that the Tug shall have an efficient and legally sufficient complement of Masters, Officers, and crew with adequate training and experience to safely and effectively operate the Vessel and all Associated Equipment.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. 3701, et seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 265 and 10 U.S.C. 2409 relating to whistleblower protections; Section 1553 of the American Recovery and Reinvestment Act of 2009 relating to whistleblower protections for contracts funded under that Act; 49 U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order: (1) the schedule of supplies/services; (2) the Assignments, Disputes, Payments, Invoice, Other Compliances, and Compliance with Laws Unique to Government Contracts paragraphs of this clause; (3) the clause at 52.212-5; (4) addenda to this solicitation or…