21R4196 A0001.pdf

N3220521R4196

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect.

15A. NAME AND TITLE OF SIGNER (Type or print)

30-105-04EXCEPTION TO SF 30

APPROVED BY OIRM 11-84

STANDARD FORM 30 (Rev. 10-83) Prescribed by GSA

FAR (48 CFR) 53.243

1. The purpose of this amendment is to do the follow ing:

-Remove the "DRAFT" w atermark from RFP N3220521R4196 as attached hereto.

-Revise Part II, Paragraph (s) to read as described in the Summary of Changes below .

2. All other terms and conditions remain unchanged.

1. CONTRACT ID CODE PAGE OF PAGES

J 1 16

16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)

16C. DATE SIGNED

BY 17-Nov-2021

16B. UNITED STATES OF AMERICA15C. DATE SIGNED15B. CONTRACTOR/OFFEROR

(Signature of Contracting Officer)(Signature of person authorized to sign)

8. NAME AND ADDRESS OF CONTRACTOR (No., Street , County, State and Zip Code) X N3220521R4196

X 9B. DATED (SEE ITEM 11)

10-Nov-2021

10B. DATED (SEE ITEM 13)

9A. AMENDMENT OF SOLICITATION NO.

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

X The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offer is extended, X is not extended.

Offer must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended by one of the following methods:

(a) By completing Items 8 and 15, and returning copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted;

or (c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN

REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (If required)

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.

IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.

A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE

CONTRACT ORDER NO. IN ITEM 10A.

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(B).

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:

D. OTHER (Specify type of modification and authority)

E. IMPORTANT: Contractor is not, is required to sign this document and return copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.)

10A. MOD. OF CONTRACT/ORDER NO.

2. AMENDMENT/MODIFICATION NO. 5. PROJECT NO.(If applicable)

6. ISSUED BY

3. EFFECTIVE DATE

17-Nov-2021

CODE

MILITARY SEALIFT COMMAND NORFOLK

SUBMITT INVOICES

IAW CONTRACT

MSC NORFOLK VA 23511-4419

N32205 7. ADMINISTERED BY (If other than item 6)

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 1449 - CONTINUATION SHEET

The following have been modified:

PART II

PART II

52.212-4 CONTRACT TERMS AND CONDITIONS-- COMMERCIAL ITEMS

1. In accordance with FAR 12.302 (a) and (d), the specified paragraphs (identified by title) are tailored for this Contract. The tailored paragraphs, below, replace the corresponding paragraphs in FAR 52.212-4.

(a) INSPECTION/ACCEPTANCE (Tailored).

(1) The Tug(s) and Associated Equipment shall, at the Charterer’s discretion, be subject to the Charterer's inspection as to suitability of the required service prior to delivery (hereinafter, “delivery inspection”) 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(s) and/or Associated Equipment might prevent or impair effective operation during the basic and any exercised optional periods of this Contract.

(2) Should actual performance or readiness condition of the Tug(s) or

Associated Equipment fail to fully comply with one or more warranty, expressed or implied, or fail to fully comply with any other Contract specification or requirement not due to the fault of the Charterer, the hire may be equitably decreased or the Tug(s) may be placed off-hire at Charterer's sole discretion.

(3) 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(s) 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.

(4) The remedies provided by this paragraph shall not limit any other remedy available at Law or in Equity, or otherwise provided under for 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 41 U.S.C. chapter 71, Contract

Disputes. 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). FAR Clause 52.202-1, Definitions, is incorporated herein by reference.

Additional definitions are provided at paragraph (2)(v), below

(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 Tug; flood; fire; blockade; riot, insurrection, or civil commotion; earthquake; storm; lightning; epidemic; or explosion.

(2) The Tug 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 make written notification to the

Contracting Officer of any delay as soon as possible after commencement of the delay. The notification shall state the full particulars giving rise to the delay and all the surrounding circumstances in connection to it. The notification shall also state the plan for remedying the delay as soon as possible. Upon cessation of the delay, the contractor shall immediately notify the contracting officer in writing of the cessation.

(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 Tug 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 52.232-33, Payment by Electronic Funds Transfer.

(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 immediately notify the Contracting Officer and request instructions for disposition of the overpayment.

(j) RISK OF LOSS. (Tailored). All costs associated with the following shall be at

Contractors expense when caused by contractor’s negligence; wrongful act;

omission by Contractor or its agents, servants, employees, or subcontractors; or any unseaworthiness, unfitness, or breakdown of the Tug or gear/equipment furnished by Contractor:

(1) Injury or death of Master or crew of the Tug, or of Captain, Officers, or crew of the Tow;

(2) Injury or death of any other person aboard the Tug or Tow;

(3) Loss or damage of whatsoever nature sustained by the Tug or Tow, or any property aboard the Tug or Tow;

(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 Tow, or by any obstruction created by the presence of the Tug or Tow;

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

All costs associated with the above contractor acts and resulting injuries shall be at Contractor’s expense without recourse against the Charterer, whether injury is caused during preparation for or during the performance of services under this Charter Party.

(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(s) 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(s) 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(s) 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(s) will be ordered hereunder. The Tug(s) shall additionally operate in compliance with the International Maritime Dangerous Goods Code.

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

(p) RESERVED

(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. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) ORDER OF PRECEDENCE (Tailored). Any inconsistencies in this solicitation or Contract shall be resolved by giving precedence in the following order:

(1) Inofrmation set forth in PART I;

(2) Paragraphs (B), (D), (G), (I), (Q) and (R) of FAR 52.212-4 (as tailored);

(3) The clause ar FAR 52.212-5;

(4) Any remaining addenda or portions thereof within this solicitation or contract;

(5) The standard form 1449;

(6) Solicitation provisions if this is a solicitation;

(7) Other documents, exhibits, and attachments.

SYSTEM FOR AWARD MANAGEMENT (SAM)

(1) Unless exempted by an addendum to this Contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this Contract and is not a substitute for a properly executed contractual document.

(2) (i) If a Contractor has legally changed its business name, “doing business as” name, or division name (whichever is shown on the Contract), or has transferred the assets used in performing the Contract, but has not completed the necessary requirements regarding novation and change-of- name agreements in Subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day’s written notification of its intention to:

(A) Change the name in the SAM database;

(B) Comply with the requirements of Subpart 42.12 of the FAR;

(C) Agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph

(t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the Contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this Contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see FAR Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM database. Information provided to the Contractor’s SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the “Suspension of payment” paragraph of the EFT clause of this Contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via SAM accessed through https://www.acquisition.gov.

(t) UNAUTHORIZED OBLIGATIONS

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

2. In accordance with FAR 12.301(e) and FAR 12.302, the following paragraphs, stating additional terms and conditions consistent with customary commercial practice and necessary for performance of the contract, are added to FAR 52.212-4.

(a) ALTERATIONS.

(1) The Charterer shall be at liberty to make any additional alterations it may require beyond what is on board at the commencement of the Charter and to install any equipment or defensive armament (including demagnetization by installed equipment or other process, e.g., degaussing, wiping, or deperming), to install any additional gear or equipment for loading, carrying or discharging cargoes, and to repaint the Vessel. Such work shall be done at the Charterer's expense and on its time and shall not be such as to be in contravention of any applicable law of the United States or regulation made pursuant thereto.

(2) Such equipment, armament, materials, and gear so fitted are to be considered "Government Property" under the terms of FAR clause 52.245-1, incorporated by reference. The Charterer shall, during the period of the Charter, remove the same together with any alterations and additions thereto at its expense and time and shall restore the Vessel to her condition and color prior to such changes, ordinary wear and tear excepted. The Government shall have the right to abandon in place any alteration or Government furnished property, unless the Contracting Officer is notified in writing within 30 days of completion of any alteration that the Contractor requests such restoration or removal.

(b) BROKER. The broker of this Charter, if any, shall be the party identified in the offer. Brokers must obtain a power of attorney executed by the vessel owners prior to submitting offers under their own signatures, signing representations and certifications or executing finalized contracts and must submit same to Government with the finalized contract. Any commission, percentage, brokerage, or other fee contingent upon or resulting from the award of this Charter shall be for the Owner's account.

(c) NO COST CANCELLATION OF CONTRACT. The Government shall have the right to cancel the contract at no cost upon 30-days written notice by the Contracting Officer in any option period.

(d) CHARTER NOT A DEMISE.

Nothing herein contained shall be construed as creating a demise of the Vessel to the Charterer, the Owner under this Charter retaining complete and exclusive possession and control of the Vessel and her navigation.

(e) INVOICE ADDRESS: The Contractor shall submit an original invoice and one copy (or electronic invoice, if authorized) to the following address: Military Sealift Command, Payment Certification Code N83, 471 East C Street, SP-64, Norfolk, VA 23511.

(f) LAWS GOVERNING: The laws of the United States shall govern this contract.

(g) LIMITATIONS. The Owner shall have the benefit of all limitations of and exemptions from liability accorded to the Owner or Chartered Owner of the Vessel by any statute or rule of law for the time being in force except to the extent that contract terms entitle the Government to compensation from the Contractor for the Contractor's failure to perform the requirements and obligations of this Charter or such statute or rule of law limiting the Contractor's liability is subordinate to any statutorily mandated provision of this Charter by operation of law. Nothing in this Charter Party shall operate to limit or deprive the Owner of any statutory exceptions or limitation of liability on the theory of personal contract or otherwise.

(h) NEGLIGENCE OF PILOTS. The Government shall not be held responsible, liable, or accountable for:

losses sustained by the Contractor, vessel(s) being assisted by the Contractor’s tug(s), or other vessels damaged through the negligence of pilots even if the Government engages the pilots.

(i) PORTS/PLACES. The Charterer shall not be deemed to warrant the safety of any berth or place and shall not be liable or accountable for any loss, damage, injury, or delay resulting from any unsafe condition at any berth or place unless caused by Charterer's failure to exercise due diligence.

(j) OWNER’S OBLIGATION. The Owner shall, unless otherwise provided herein, provide and pay for all provisions; deck, engine room, and galley stores and fresh water; insurance on the Vessel; wages of, transportation of, and services for Master, Officers, and crew and consular fees pertaining to them in accordance with the subparagraph Port Charges and Expenses. Owner will be responsible for all port charges associated with the foregoing.

(k) PORT CHARGES AND EXPENSES.

(1) Expenses for Charterer. Except as otherwise provided herein, Charterer shall pay expenses of loading and unloading cargo and all wharfage, dockage, canal tolls, dues, taxes, and similar port charges imposed by public authority including consular charges (except those pertaining to the Master, Officers, and crew incurred by the Vessel in ports visited pursuant to Charterer’s direction. Agency fees, provided not incurred for the convenience of the Vessel or Owner shall also be at Charterer’s expense. The Charterer shall pay all pilotage charged to the Vessel; however, in no case shall the Charterer reimburse the Owner for pilotage paid to the Master or other members of the crew.

Surveyors or consultants as mutually agreed may be retained under this Charter in order to facilitate fact-finding in respect of actual or potential claim actions or for inspections or surveys generally; the costs shall be incurred only after prior written approval from the Contracting Officer.

(2) Reimbursement. The Owner if so required by the Charterer as noted in the subparagraph above, shall pay all of the charges incurred at Charterer’s expense. The Charterer shall thereafter reimburse the Owner for such charges in accordance with PART IV, Paragraph 9, “Pass Through Reimbursables Expenses.”

(l) READINESS. Readiness is a required service of the Vessel. Readiness shall be defined as the ability of a Vessel and Associated Equipment to perform the function for which designed, built, or chartered, including the ability to deploy without delays, whether or not so ordered to perform. If there is a degradation of this readiness, such that actual performance or condition of the Vessel or Associated Equipment shows any failure to satisfy one or more of the Owner's warranties or renders the Vessel in less than a fully efficient state, the hire will be proportionately decreased so as to indemnify the Charterer to the extent of such failure, and this Charter Party shall remain otherwise unaffected. Failure of the parties to agree upon the extent of the proportional decrease in hire shall be a dispute under the clause entitled "Disputes" incorporated herein by reference. Nothing in this clause shall limit the rights of the Charterer to place the Vessel off-hire pursuant to PART IV, Paragraph 26, “OFF-HIRE” of the contract.

(m) SALVAGE:

(1) All salvage moneys earned by the Vessel during the period of this Charter shall be divided equally between the Owner and the Charterer after deducting Master's, Officers' and crew's shares, legal expense, Vessel hire lost (if any) as a result of the salvage service, value of fuel consumed (which shall be paid in full to the Charterer from the salvage award), repairs of damage, and other extraordinary loss or expense sustained as a result of the salvage service. Charter hire shall continue to be paid by the Charterer during deviations for the purpose of performing salvage service.

(2) When engaged in the carriage of Government cargo and if requested by the Charterer, the Owner agrees to accept Navy salvage services. Such services may be provided using Navy personnel and resources or Navy contracted resources.

(3) In providing such services, the Navy, through the Charterer, agrees to waive all claims for “pure” or

“bonus” salvage. Instead, the Charterer shall be entitled to the following:

(a) In those cases in which the salvage services are provided by Navy personnel and resources, the salvage claim shall be limited to a schedule of current per diem rates and allowable expenses as established by the Navy’s Supervisor of Salvage. In no event shall such amount exceed a maximum claim of $25,000 per day.

(b) In those situations in which the Navy utilizes contracted resources to deliver assistance, the

Owner shall be liable for the actual daily rate charged to the Navy by the Contractor(s).

(4) It is understood that this limited Supervisor of Salvage claim is asserted against the Vessel only, is solely for the Vessel's account, and does not include any amounts for the salvage of the Government's cargo. Notwithstanding any other provisions of this Contract, this limited Supervisor of Salvage claim IS NOT directly or by way of setoff chargeable in whole or in part to the Government by way of general average or otherwise.

(n) SAVINGS. The Owner agrees that any refunds, rebates, credits, discounts, insurance payments, or other amounts (including any interest thereon) accruing to or received by the Owner under this Charter shall be paid by the Owner to the Government to the extent that they are properly allocable to costs, expenses, or reimbursements for which the Owner has been compensated by the Government under the terms of this Charter. The foregoing shall apply to any savings to the Owner resulting from a fleet reduction, applied on a pro rata basis.

(o) STANDARDS OF APPEARANCE. The Tug(s) operated under this Contract will operate in direct support of the U.S. Government and the Department of Defense; they must therefore meet the highest possible standards of appearance and Vessel smartness.

(p) SUBCHARTER. The Charterer shall have the right, without the prior written consent of the Owner, to subcharter or agree to subcharter the Vessel under any form of time or voyage charter. If Charterer shall enter into any such charter, Charterer shall nevertheless remain liable for the due performance of this

Charter. Any such subcharter shall include a provision that it is subject to the provisions of this Charter Party.

(q) VESSEL OWNER’S INSURANCE.

(1) During the full period of this Charter Party, Contractor shall maintain marine insurance coverage on the Vessel, including:

i. Hull and Machinery,

ii. Protection and Indemnity (P&I) (including pollution liability),

iii. War Risk Hull and Machinery,

iv. War Risk Protection and Indemnity (P&I), and

v. Second Seaman’s War Risk. (the principal sum of which shall be $200,000.00 per

Master, Officer, or crew member (this is also the loss-of-life benefit)).

Except as otherwise expressly provided in Section (q)(3) below or as expressly provided in the section entitled “War” (r), all expenses for such insurance coverage (including but not limited to premiums, additional premiums, calls, commissions, overspill claims, advancements, assessments, deductibles, and all other insurance costs regardless of Charterer or Contractor fault, neglect, action or inaction, or cause of claim or cost whatsoever) shall be for Contractor’s account and shall be deemed to be included in the hire payable under this Charter Party. Contractor shall make insurance claims under applicable policies for all damages, injuries, or claims arising from or related to this Charter when directed by Charterer regardless of Charterer’s fault, neglect, action, inaction, or breach of clauses, obligations or warranties (express, implied or otherwise) of this Charter Contract.

1.1.1 At least 10 calendar days prior to delivery of Vessel, Contractor shall provide the Contracting Officer copies of policies or cover notes evidencing that required coverage has been obtained and demonstrating that the coverage is consistent with the requirements of this section. Contractor’s failure to provide the required policies or cover notes may be considered material breach of this Contract.

(2) Contractor agrees to indemnify and hold harmless the Charterer for all liability, costs, or expenses arising from or related to this contract and involving covered risks and losses under the terms of the insurance required in (q)(1) above. Contractor shall obtain an endorsement on all of Contractor’s insurance policies listed in Section (q)(1) by which Contractor’s Insurer “waives all rights of subrogation against the United States of America regardless of amount.”

(3) If Vessel is sent beyond the limits of American Institute Trade Warranties under this Charter

Party, the Charterer agrees to reimburse the Contractor for the actual extra cost of additional premiums and/or increased deductible levels to the extent such extra cost is occasioned by the Vessel’s trading beyond such limits. Contractor shall immediately notify Charterer whenever any sailing orders will send the Vessel beyond such limits, shall identify to Charterer any anticipated additional cost of insurance relating thereto, and shall obtain Charterer’s approval to proceed beyond such limits prior to doing so. If Contractor fails to provide the notifications required or to obtain Charterer’s informed prior approval, Charterer shall not be required to reimburse the Contractor for the costs described in this paragraph. The issuance of sailing orders, by itself, does not constitute approval in advance by Charterer.

(4) All policies shall contain an endorsement stating that “in the event Insurer receives from Vessel

Owner any notice of cancellation or any notice of material change to the policy or its coverage, the cancellation or change shall not be effective until 30 days after written notice thereof is provided to Charterer’s Contracting Officer by the Insurer (unless such change is directed by the Charterer’s Contracting Officer).” Additionally, Contractor shall immediately notify Charterer of any change whatsoever in coverage.

N3220521R419

(5) Charterer Named Additional Assured on Owner’s Hull Policy, War Risk Hull Policy, and Second Seaman’s War Risk Policy. The United States of America (as Charterer) shall be named as an additional assured with waiver of subrogation under the Contractor’s Hull and Machinery policy (and Increased Value policy if applicable), War Risk Hull and Machinery policy, and Second Seaman’s War Risk policy.

5.1.1 At least 10 calendar days prior to delivery of vessel, Contractor shall provide the

Contracting Officer copies of policies or cover notes evidencing that the required coverage has been obtained. Contractor’s failure to provide the required policies or cover notes may be considered material breach of this contract.

(6) “Other than owner” and “as owner” limitations. If Contractor’s Hull and Machinery policy (and

Increased Value policy if applicable), War Risk Hull and Machinery policy, or Second Seaman’s War Risk policy contain(s) any provision limiting coverage under the policy only to liabilities arising as owner of the vessel, Contractor shall arrange for such limiting provision to be stricken from the policy.

(a) If Contractor’s Hull and Machinery policy (and Increased Value policy if applicable), War

Risk Hull and Machinery policy, or Second Seaman’s War Risk policy contain(s) any provision designed to limit the effect of striking “other than owner” or “as owner” provisions as required in Section (q)(6) such provisions shall also be amended to ensure Charterer is provided full benefit of the insurance for its acts as Charterer.

(7) Limitations of Coverage to U.S. Limitation of Shipowners’ Liability Act (or similar) limitation amounts. If Contractor’s Hull and Machinery policy (and Increased Value policy if applicable), War Risk Hull and Machinery policy, and/or Second Seaman’s War Risk policy contain(s) any provision(s) limiting maximum payment to Owner in any instance to the amount to which Owner is able to limit Owner’s liability pursuant to the U.S. Limitation of Shipowners’ Liability Act of 1851, the 1976 Convention on Limitation of Liability for Maritime Claims, or any similar law, Contractor shall arrange for such limiting language to be stricken or amended to ensure the policy or policies are not similarly limited in payment or coverage amount with respect to coverage afforded the United States of America as additional assured Charterer.

(8) P&I Insurance for Charterer’s Risks or Time Charterer Protection and Indemnity (P&I) with

P&I War Risk Coverage. Contractor shall obtain P&I Insurance for Charterer’s Risks or a Time Charterer Protection and Indemnity policy/entry with P&I War Risk coverage for the United States of America (as Charterer) covering all risks typically covered by P&I Insurance for Charterer’s Risks or Time Charterer Protection and Indemnity entries with P&I War Risk coverages in Protection and Indemnity associations that are members of the International Group.

Except as otherwise expressly provided in the section entitled “War,” all expense of such policy/entry described in this section (including but not limited to premiums, additional premiums, calls, commissions, overspill claims, advancements, assessments, deductibles, and all other insurance costs regardless of Charterer or Contractor fault, neglect, action or inaction, or cause of claim or cost whatsoever) shall be for Contractor’s account and shall be deemed to be included in the hire payable under this Charter Party. Contractor shall make insurance claims under the Time Charterer Protection and Indemnity policy/entry described in this section when directed by Charterer.

8.1.1 At least 10 calendar days prior to delivery of Vessel, Contractor shall provide the

Contracting Officer a copy of the policy. Contractor’s failure to provide the required copy of the policy may be considered material breach of this Contract.

8.1.2 The Time Charterer Protection and Indemnity policy/entry with P&I War Risk coverage shall provide coverage of $500,000,000.00.

(9) Charterer shall not be obliged to declare to the insurer all ships chartered by it. Contractor will advise the insurer that the Charterer will not declare all ships chartered by it to the insurer, and shall obtain an endorsement on the policy stating, “the United States of America, as Charterer, is not required to declare to [insert insurer name] all ships chartered by it.”

(10) Contractor to Indemnify. If Contractor fails to name the United States as additional assured with waiver of subrogation on Contractor’s Hull and Machinery policy (and Increased Value policy if applicable), War Risk Hull and Machinery policy, or Second Seaman’s War Risk policy as required by Section (q)(5); or fails to obtain for the United States the P&I Insurance for Charterer’s Risks or Time Charterer P&I policy/entry with War Risks coverage required by Section (q)(8); the Contractor shall indemnify and hold harmless the Charterer for all liability, costs, or expenses involving covered risks and losses under the required insurance policies/coverage.

(11) Contractor shall not, through action or inaction (including but not limited to failing to meet all conditions of a policy, causing through action or inaction cessation of a policy, or violating any warranty of a policy), vitiate or void the coverage afforded by the Contractor’s Hull and Machinery policy (and Increased Value policy if applicable), War Risk Hull and Machinery policy, Second Seaman’s War Risk policy, or the coverage afforded by the Time Charterer Protection and Indemnity policy/entry with P&I War Risk coverage. If any such policy is vitiated or voided by Contractor’s action or inaction as described in this Section (q)(11), Contractor shall indemnify and hold harmless the Charterer for all liability, costs, or expenses which would have been covered by the policy had such policy or coverage remained in full force and effect.

(12) In the event Contractor fails to strike “other than owner” or “as owner” provisions per Section

(q)(6), fails to amend supplemental limiting provisions as described in Section (q)(6)(a), or fails to amend provisions limiting payment or coverage as described in Section (q)(7), Contractor shall indemnify and hold harmless the Charterer for all liability, costs, or expenses which would have been covered by Contractor’s Hull and Machinery policy (and Increased Value policy if applicable), War Risk Hull and Machinery policy, and Second Seaman’s War Risk policy had such provisions been stricken or amended as required

(r) WAR.

(1) Voyage Instructions. Operating limits of the Vessel subject to this Contract shall be worldwide. If the

Vessel is ordered under this Charter Party to any port, place, zone, or route involved in a state of war, warlike operations or hostilities, civil strife, or piracy (whether there be a declaration of war or not) where it might be reasonably expected to be subject to capture, seizure, arrest, or hostile act by a belligerent power (whether de facto or de jure), pirate, or terrorist, it shall be unreasonable for the Contractor not to prosecute said voyage if insurance against said risks is then available commercially or under a Government program, or if the Government offers the Contractor indemnification against said risks pursuant to Public Law 85‐804 (72 Stat. 972, August 28, 1958).

(2) The Contractor shall immediately notify the Charterer: (i) whenever any sailing orders will result in the

Vessel subject to this Contract being sent beyond the limits of the War Risk Trading Warranties of insurance policies required under this contract (to include entry into a war risk exclusion zone or when the Vessel will enter, sail for, or deviate towards the territorial waters of any of the Countries or places or any other waters described in the Lloyd’s Joint War Committee’s current Hull War, Strikes, Terrorism and Related Perils Listed Areas); (ii) if there are any changes to the War Risk Trading Warranties of insurance policies required under this contract (including changes to the exclusion zones or the Hull War, Strikes, Terrorism and Related Perils Listed Areas) or changes to War Risk premiums, charges, or deductibles; or (iii) whenever additional premium charges or costs will be incurred as a direct result of compliance with any sailing orders issued by the Charterer under this Contract. The Contractor shall ensure that the insurers provide it relevant information in a timely manner. If the Contractor has given this required notice to the Charterer, the Charterer will reimburse the Contractor for the increase in costs (if any) of insurance premiums, charges, or deductibles which arise from the Vessel sailing beyond the applicable War Risk Trading Warranties (including changes to the war risk exclusion zones) when entry into any exclusion zone or Hull War, Strikes, Terrorism and Related Perils Listed Areas under such insurance has been approved in advance by the Charterer. The issuance of sailing orders, by itself, does not constitute approval in advance by the Charterer. The Charterer may give the Contractor notice and instructions concerning suspension of commercial War Risk insurance coverage and substitution of Government indemnity or Government War Risk insurance as detailed in the section entitled “Government War Risk Insurance/Indemnity” below.

(3) Additional Wage Costs. The Charterer shall reimburse Contractor for the cost of provable additional master and crew wages (including all additional bonuses and payments required) to the extent that such additional costs arise directly from exposure of the Vessel, and/or Vessel’s master and crew, to the risks described in the paragraph entitled “Voyage Instructions” above. However, any of said wages or payments shall not exceed in amount that which would be payable, under applicable laws and regulations, to U.S. civil service mariners in the employ of the Military Sealift Command in a similar port, place, zone, or route. Contractor shall notify Charterer of all anticipated additional wage costs prior to entering any location which would trigger such additional costs; and no such costs shall be reimbursable unless Charterer, after notification of such costs, provides approval to enter such location.

(4) Government War Risk Insurance/Indemnity - General. Upon receipt of notice and instructions from the Contracting Officer, as specified in the last sentence of Section r-1.2 of the section entitled “War (r)” above, concerning suspension of commercial War Risk insurance coverage and substitution of Government indemnity or Government War Risk insurance, the Contractor shall, as soon as practicable, contact its insurance brokers or underwriters and arrange for the suspension of its commercial War Risk insurance upon entry of the vessel into, or extension of stay of the vessel in any area(s) excluded by the War Risk Trading Warranties, or when the vessel will enter, sail for, or deviate towards the territorial waters of any of the Countries or places, or any other waters described in the Lloyd’s Joint War Committee’s current Hull War, Strikes, Terrorism and Related Perils Listed Areas, as the case may be, subject to resumption of its commercial War Risk insurance upon exiting such area(s). In such instances, the Contractor shall accept the Government’s indemnity or Government War Risk insurance, whichever is applicable, in lieu of such commercial War Risk insurance. The Contractor shall ensure that the suspension of its commercial War Risk coverage is coincident with the time that any Government indemnity or Government War Risk insurance becomes effective, and shall likewise ensure that its commercial War Risk insurance is resumed at the time when any Government indemnity or Government War Risk insurance becomes ineffective. The Contractor shall retain the same risks, such as deductibles (if any), that it has under its commercial insurance.

(5) Government War Risk Insurance. Under the authority of 46 U.S.C. § 53905, the United States

Maritime Administration (MARAD), at the request of Commander, Military Sealift Command, may furnish the following war risk insurance coverage, which will be effective during the Vessel’s transit under this Contract in areas which are in war risk exclusion zones, or waters described in the current Lloyd’s Joint War Committee Hull War, Strikes, Terrorism and Related Perils Listed Areas, or otherwise excluded under the Contractor’s commercial marine War Risk trading warranties, and which are designated by notice from the Contracting Officer to the Contractor:

(a) War Risk Hull Coverage, insured at the vessel’s hull value, as determined by MARAD and subject to the limitations of 46 USC §53901 et seq.;

(b) War Risk Protection and Indemnity coverage, insured at a value of either (i) 150% of the hull value stated in Vessel's current commercial hull policy effective on Charter Party date or (ii) $50,000,000.00, whichever is greater but in no event exceeding that amount of commercial P&I cover which was in effect for the Vessel on Charter Party date;

(c) War Risk Second Seaman’s coverage, the principal sum of which shall be $200,000 per Master, Officer, or crew member (this is also the loss-of-life benefit);

(d) War Risk Loss-of-Hire coverage, if a commercial loss-of-hire policy was in effect on the Vessel on Charter Party date. The sum insured by this policy, including the amount of lost time that is covered, will be equivalent to the levels insured by the Vessel's commercial policy.

However, the amount insured by this policy will in no event exceed the hire rate(s) (that would have been in effect under this Charter Party during the period of time that the vessel was off-hire because of a covered War Risk), over a maximum duration of 90…