OFB BAS Agreement R1.doc

Commercial Item Construction Contract Contract No. GS-09P-10-KS-C-0040 The Agreement

ARRA BAS REPLACEMENT, RONALD DELLUMS FEDERAL BUILDING

OAKLAND, CA

CIC101 06/09

Table of Contents

I.

Project Information

A.

Project Summary

B.

The Contract

C.

Period of Performance

D.

Work Conditions/Site Requirements

E.

Authorized Representatives

F.

American Recovery and Reinvestment Act of 2009

G.

Liquidated Damages

H.

Buy American Exceptions

I.

Statement of Work, Specifications, Drawings, Exhibits and Other Attachments

II.

Prices

Basis of Pricing

Contract Price Form

III.

Terms and Conditions

General Terms and Conditions

Commercial Item Contract Clauses

I.

Project Information

A.

Project Summary

This project consists of a replacement of the building automation system (BAS) at the Dellums Federal Building, 1301 Clay Street, Oakland, CA, as described in the Contract Documents.

B.

The Contract

1.

The Contract consists of the SF 1442, the Agreement, Specifications, Exhibits, and other Attachments identified herein (collectively, the Contract Documents). The Contract contains the entire agreement of the parties, and no prior written or oral agreement, express or implied, shall be admissible to contradict or modify any part of the Contract.

2.

The Contractor shall provide and pay for all labor, materials, equipment, tools, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution of the work described in and reasonably inferable from the Contract Documents (the Work), whether temporary or permanent. In consideration for, and upon condition of, the Contractor's completion of the Work, GSA shall pay the Contractor the price or prices established in Section II., subject to the terms and conditions set forth in this Contract.

C.

Period of Performance

The Contractor shall achieve Substantial Completion of the Work, as that term is defined in the Agreement, no later than 365 calendar days from issuance of Notice to Proceed (NTP).

This is a design-build project. The Contractor must complete construction documents, as defined in the Contract Documents, not later than 120 calendar days from award of this Contract. Submittals must be submitted to GSA electronically in PDF format, and four hardcopy (half-size drawings) sets for approval. A safety plan must be submitted with the submittals. The Contractor shall resubmit submittals as applicable within 10 working days of receipt of GSA comments with responses to comments. Resubmission must address all issues raised in GSA comments. Multiple rounds of comments and corrections may be required.

CAD files (.DWG files) are not required as submittals, but record documents must include CAD files constructed to current GSA CAD Standards (copy available on request).

Payment and performance bonds, and insurance documents must be submitted within 10 of the notice of award.

Notice to Proceed will be granted after (1) approval of submittals; (2) receipt of payment and performance bonds; (3) receipt of insurance documentation; (4) receipt of schedule of values.

D.

Work Conditions/Site Requirements

Contractor must secure a security clearance for each individual who will be working in the building.

Work shall be performed during ‘normal working hours’ (6:00am to 6:00pm) unless directed otherwise by the GSA. Contractor must request permission from GSA to work on the weekends.

HVAC and utility service must not be disrupted without prior permission from GSA.

If equipment is to be lowered through air shafts on sidewalk, the Contractor is responsible for scheduling in advance and obtaining any necessary local permits.

If equipment is to be brought in through the loading dock, the Contractor is responsible for advance scheduling and for use of a truck that will meet access limitations.

The Contractor is responsible for identifying a path that will permit equipment to be moved to the point of installation without damage to the building, and for all labor necessary to move equipment.

E.

Authorized Representatives

1.

This is a Contract is between the United States of America, acting by and through the Administrator of General Services (GSA), and the Contractor (the Parties). References in this Contract to "the Owner" or "the Government" shall be understood to refer to GSA. The following individuals are designated as the authorized GSA representatives under this Contract:

(a) Contracting Officer

(b) Contracting Officer's Representative

2.

Authorities and Limitations

(a) All rights, responsibilities and authorities of GSA under this Contract are vested in the Contracting Officer. The Contracting Officer may delegate these rights, responsibilities, and authorities to other GSA representatives. Such delegations shall be effective and binding only if communicated in writing to the Contractor, and subject to any limitations specified therein.

(b) The Contractor shall perform the Contract in accordance with any order (including but not limited to instruction, direction, interpretation, or determination) issued by the Contracting Officer or other representative to whom the Contracting Officer has delegated authority. The Contractor assumes all the risk and consequences of performing work in accordance with an order issued by a person lacking authority to issue such order.

F.

American Recovery and Reinvestment Act of 2009

1.

This Contract is funded in whole or in part by the American Recovery and Reinvestment Act of 2009 (ARRA).

2.

The following items of work are funded by ARRA:

ALL WORK

G.

Contract Liquidated Damage Rate

In accordance with Paragraph III.A.14 of the Agreement, liquidated damages shall be calculated at the rate of $450 per calendar day.

H.

Buy American Exceptions

For the purpose of determining Buy American requirements set forth in the Buy American Clause of the Agreement, the following construction materials and components are excepted:

None I.

Statement of Work, Specifications, Drawings, Exhibits, and Other Attachments

The following documents are included in or incorporated by reference into this Contract to the extent of the express terms of reference and the order of precedence set forth at Paragraph III.B.1(s).

This Agreement

Schematic Drawings

Concept Design and Specifications

Clauses Incorporated by Reference

Buy American Clause

Wage Determination Standards referenced in specifications to the extent applicable

II.

Prices

A.

Basis of Pricing

1.

Contract Prices

All Contract prices set forth in this Section include all costs necessary to complete the Work for which the price is established (e.g., Base Contract, Unit Price, Options) in accordance with the Contract Documents, including, but not limited to, the cost of work performed by subcontractors and consultants, indirect costs, fees, expenses, taxes, and profit.

2.

Knowledge of Conditions Affecting Price

FAR 52.236-3, Site Investigations and Conditions Affecting the Work, is incorporated into this Contract. The Contractor shall be presumed to have established all prices with knowledge of general and local conditions that may affect the cost of Contract performance at the site where the Work is to be performed, to the extent that such information is reasonably obtainable.

3.

Unit Prices and Allowances

If any portion of the Work is to be performed on a unit price basis, the Unit Price shall include all costs of coordinating and incorporating the unit-priced portion of the Work into the Base Contract Work. The Contractor shall only be obligated to perform unit-priced work to the extent that an Allowance has been established in an amount sufficient to compensate the Contractor for such work at the established unit prices. The Contractor shall be obligated to perform such work in excess of a unit quantity for which an Allowance is sufficient only if directed by the Contracting Officer in writing. The Contractor shall be bound to the unit price or prices set forth herein in all equitable adjustments for changes including unit priced work, and no markups shall be applied to such unit prices.

4.

Options

If any portion of the Work is to be performed upon the timely exercise of an Option, the Option Price shall include all costs of coordinating and incorporating the Option-priced portion of the Work into the Base Contract Work. An adjustment to the Contract price for such additional work shall be computed solely on the basis of the Option price or prices set forth herein. Unless otherwise specified, all options may be exercised within 90 days of Contract award.

5.

Bid Rates

If this Contract includes Bid Rates to be used in determination of equitable adjustments (e.g., overhead, profit, daily rates for time-related costs), such rates shall be deemed to include all costs recoverable as components of an equitable adjustment consistent with the requirements, definitions, and exclusions applicable to equitable adjustments set forth in this Contract, and consistent with the Contractor's cost accounting practices. Unless otherwise specified, the bid rates shall be deemed to include only the Contractor's costs, and not the costs of any subcontractors.

B.

Contract Price Form

PRICE

(LOT)

Add Alternates (CLINs 2A, 2B, 2C, 3, 4, 5, 6) may be exercised by the Government at the Government's sole discretion any time within 120 days of contract award at the prices in the Contract Price Form. After that time they are subject to a negotiated escalation.

If the Add Alternates are exercised, the Contract is subject to a negotiated extension of up to 180 calendar days, proporional to amount of work ordered from the Add Alternates to allow reasonable time for such additional work.

III.

Terms and Conditions

A.

General Terms and Conditions

1.

Commencement, Prosecution, and Completion of Work

(a) The Contractor shall complete all Work described in the Contract Documents under the terms and conditions set forth herein. The Contractor shall not commence the Work until the Contracting Officer has issued NTP. The Contractor shall diligently prosecute the Work so as to achieve Substantial Completion of the Work within the time specified in Paragraph I.C. of the Agreement. If this Contract specifies different completion dates for different phases or portions of the Work, the Contractor shall diligently prosecute the Work so as to achieve Substantial Completion of such phases or portions of the Work within the times specified.

(b) Unless otherwise specified herein or directed by the Contracting Officer, the Contractor shall achieve Contract Completion within thirty calendar days of Substantial Completion.

2.

Contractor Responsibilities

(a) Unless otherwise specifically directed in the Contract, the Contractor shall be responsible for all means and methods employed in the performance of the Contract.

(b) The Contractor shall be responsible for providing professional design services in connection with performance of the Work or portions of the Work only if this responsibility is expressly specified and the Contract Documents provide the performance and design criteria that such services will be required to satisfy. In the performance of such work, the Contractor shall be responsible for retaining licensed design professionals, who shall sign and seal all drawings, calculations, specifications and other submittals that the licensed professional prepares. The Contractor shall be responsible for, and GSA shall be entitled to rely upon, the adequacy and completeness of all professional design services provided under this Contract.

(c) The Contractor shall be responsible for coordinating all activities of subcontractors. This responsibility includes coordination of: preparation of shop drawings produced by different subcontractors where their work interfaces or may potentially conflict or interfere, and the installation of such work; scheduling of work by subcontractors; and use of the Project site for staging and logistics.

(d) Where installation of separate Work components as shown in the Contract Documents will result in conflict or interference between such components or with existing conditions, including allowable tolerances, it is the Contractor's responsibility to bring such conflict or interference to the attention of the Contracting Officer and seek direction before fabrication, construction, or installation of any affected work. If the Contractor fabricates, constructs, or installs any work prior to receiving such direction, the Contractor shall be responsible for all cost and time incurred to resolve or mitigate such conflict or interference.

(e) Where drawings show work without specific routing, dimensions, locations, or position relative to other work or existing conditions, and such information is not specifically defined by reference to specifications or other information supplied in the Contract Documents, the Contractor is responsible for routing, dimensioning, and locating such work in coordination with other work or existing conditions in a manner consistent with Contract requirements.

(f) The Contractor shall secure and pay for all necessary permits and governmental fees, licenses, and inspections that are customarily secured after award of the Contract and which are legally required at the time of award. The Contractor shall provide a copy of the permits required for execution of the work to the Contracting Officer prior to commencement of any related work.

(g) The Contractor shall immediately bring to the Contracting Officer's attention any hazardous materials or conditions not disclosed in the Contract Documents encountered during the performance of the Contract

(h) In accordance with FAR 52.236-13, Accident Prevention (NOV 91) ALT I, the Contractor is responsible for safety on the Project site, and must submit a safety plan before commencing work.

(i) It is not the Contractor's responsibility to ensure that the Contract Documents comply with applicable laws, statutes, building codes and regulations. If it comes to the attention of the Contractor that any of the Contract Documents do not comply with such requirements, the Contractor shall promptly notify the Contracting Officer in writing. If the Contractor performs any of the Work prior to notifying and receiving direction from the Contracting Officer, the Contractor shall assume full responsibility for correction of such work, and any fees or penalties that may be assessed for non-compliance.

(j) The Contractor assumes the risk of, and shall be responsible for, any loss, damage, destruction, or theft of Government property upon its delivery to the Contractor as Government-furnished property. However, the Contractor is not responsible for reasonable wear and tear to Government property or for Government property properly consumed in performing this Contract.

3.

Contractor Management and Personnel

(a) The Contractor shall employ sufficient management and contract administration resources, including a project manager, general superintendent, and change order administration, estimating, coordination, inspection, and quality control personnel, to ensure the proper execution and timely completion of the Work. The Contractor shall designate a principal of the firm or other senior management official to provide executive oversight and problem resolution resources to the Project for the life of the Contract.

(b) The Contractor shall employ, and require its subcontractors to employ, qualified personnel to perform the Work. The Government reserves the right to exclude, or remove from the site or building, any personnel for reasons of incompetence, carelessness, or insubordination, who violate rules and regulations concerning conduct on federal property, or whose continued employment on the site is otherwise deemed by the Government to be contrary to the public interest.

(c) Repeated failure or excessive delay by the Contractor to provide qualified personnel shall be deemed a default for the purposes of the Termination for Default clause.

4.

Material and Workmanship

All equipment, material, and articles incorporated into the Work shall be new and of the most suitable grade for the purpose intended, unless otherwise specified in this Contract. References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number shall be regarded as establishing a standard of quality and performance and shall not be construed as limiting competition. Unless specifically directed by the Contracting Officer, the Contractor may use any equipment, material, article, or process that is equal to that named in the specifications, so long as it is of comparable quality and meets specified characteristics, or, if no such characteristics are specified, the relevant performance characteristics of the specified item.

5.

CPM Project Schedule

(a) The Contractor shall use GSA's ePM system (based on Meridian Proliance) to develop a Critical Path Method ("CPM") Project Schedule to plan, coordinate, and perform the Work, and for management of submittals. GSA will provide one training session on use of this application.

(b) The Project Schedule shall be a rational, reasonable and realistic plan for completing the Work, and conform to requirements specified in this clause and elsewhere in this Contract.

(c) The Contractor understands and acknowledges that the preparation and proper management of the Project Schedule is a material component of the Work, and that the Contract price includes all costs of compliance with Project Schedule requirements.

(d) The Project Schedule shall depict all activities necessary to complete the Work, including, as applicable, all submittal and submittal review activities, all procurement activities, and all field activities, including mobilization, construction, start-up, testing, balancing, commissioning, and punchlist. Activities shall be sufficiently detailed and limited in duration to enable proper planning and coordination of the Work, effective evaluation of the reasonableness and realism of the Project Schedule, accurate monitoring of progress, and reliable analysis of schedule impacts.

(e) Within thirty days of NTP, or such other time as may be specified herein, the Contractor shall submit its Project Schedule to the Contracting Officer, together with a written narrative describing the major work activities, activities on the critical path, and major constraints underlying the sequence and logic of the Project Schedule. The Contractor shall submit the Project Schedule in both electronic and hardcopy print format.

(f) The Contractor should anticipate that its initial submittal of the Project Schedule shall be subject to review and revision as contemplated by subparagraph (k) herein, and shall devote sufficient resources for meetings, revisions, and resubmissions of the Project Schedule to address exceptions taken by the Contracting Officer to the initial submittal. The Contractor understands and acknowledges that the purpose of the initial review and resolution of exceptions is to maximize the usefulness of the Project Schedule for the Parties during Contract performance.

(g) Activity durations shall be based upon reasonable and realistic allocation of the resources required to complete each activity, given physical and logistical constraints on the performance of the Work. All logic shall validly reflect physical or logistical constraints on relationships between activities. Except for the first and last activities in the Project Schedule, each activity shall have at least one predecessor and one successor relationship to form a logically connected network plan from NTP to the Contract completion date.

(h) The Project Schedule shall incorporate milestone events specified in the Contract, including, as applicable, NTP, Substantial Completion, and milestones related to specified work phases and site restrictions. The Project Schedule shall also include Contractor-defined milestones to identify target dates for critical events, based upon the Contractor's chosen sequence of work.

(i) Unless a shorter period for updates is specified elsewhere, the Contractor shall update the Project Schedule monthly to reflect its actual progress in completing the Work, and submit the updated Project Schedule to the Contracting Officer within five working days of the end of each month or other specified period.

(j) If the Contractor revises the Project Schedule after initial submission, the Contractor shall provide in writing to the Contracting Officer a narrative describing the substance of the revision, the rationale for the revision, and the impact of the revision on the projected Substantial Completion date and the available float for all activities. The Contractor shall only revise prospective activities, durations and logic, but addition of detail to prospective activities shall not be deemed a revision if the overall duration of the detailed activity does not change.

(k) If at any time the Contracting Officer finds that the Project Schedule does not comply with any Contract requirement, the Contractor shall, upon written notice of exceptions taken by the Contracting Officer, revise the Project Schedule, adjust activity progress, or provide sufficient information demonstrating compliance. Regardless of whether the Contracting Officer takes any such exception, the Contractor shall not be relieved of its responsibility for the rationality, reasonableness or realism of the Project Schedule, or its responsibility to achieve Substantial Completion within the time specified by this Contract.

(l) If the Contractor fails to sufficiently address the Contracting Officer's exceptions to the Project Schedule within thirty calendar days of written notice of same, the Contracting Officer may withhold retainage until the Project is Substantially Complete, or until such time as the Contractor has complied with Project Schedule requirements.

(m) The Contracting Officer shall be entitled, but not required, to rely upon the Project Schedule to evaluate the Contractor's progress, evaluate entitlement to extensions of time, and determine the criticality or float of any activities described in such Project Schedule.

6.

Extensions of Time

(a) If the Contractor requests an extension of the time by which this Contract requires Substantial Completion, the Contractor shall base its request on analysis of time impact using the Project Schedule as its baseline, and the new Substantial Completion date projected by the Project Schedule as revised to account for the impact. The Contractor's request must be submitted to the Contracting Officer in writing, and set forth facts and analysis in sufficient detail to enable the Contracting Officer to evaluate the Contractor's entitlement to an extension of time.

(b) The Contractor shall be entitled to an extension of time only if Substantial Completion of the Work is delayed necessarily by causes for which the Contractor is not responsible under this Contract, and only to the extent that the actual or projected Substantial Completion date is later than the date required by this Contract for Substantial Completion.

(c) The Contractor shall not be entitled to an extension of time if the Contractor has not updated the Project Schedule in accordance with this Contract.

(d) The Government shall not be liable for any costs to mitigate time impacts, regardless of responsibility for the impact, incurred by the Contractor prior to thirty calendar days after the date the Contractor submits a request for extension of time complying with this clause.

7.

Interpretation of Specifications and Drawings

(a) The specifications and drawings shall be interpreted to complement each other. Requirements set forth in the specifications and not shown on the drawings, or shown on the drawings and not set forth in the specifications, shall be of like effect as if shown or set forth in both.

(b) Different requirements within the Contract Documents shall be deemed inconsistent only if compliance with both cannot be achieved.

(c) If a requirement set forth in one location is more restrictive than that set forth elsewhere in the Contract Documents, requirements set forth in specifications shall govern over requirements set forth in drawings; otherwise, the more restrictive shall govern.

(d) In case of inconsistent requirements within the drawings, the following order of precedence shall apply:

(i) Requirements indicated in large-scale drawings shall govern over inconsistent requirements indicated in small-scale drawings.

(ii) Requirements indicated in schedules shall govern over inconsistent information shown in drawings.

(e) Unless otherwise noted, the drawings shall be interpreted to provide for a complete construction, assembly, or installation of the Work, without regard to the detail with which material components are shown in the drawings.

(f) If any inconsistency within the drawings or specifications cannot be reconciled by reference to this clause, the Contractor shall promptly request a determination from the Contracting Officer as to which requirement shall govern. Election by the Contractor to follow either requirement without a determination from the Contracting Officer shall be at the Contractor's risk; should the Contracting Officer subsequently determine that the requirement not followed by the Contractor governs, the Contractor shall be responsible for all cost and time required to comply with the Contracting Officer's determination.

8.

Submittals

(a) The Contractor shall prepare and submit to the Contracting Officer shop drawings, samples, calculations, product information, mockups, and other submittals (collectively, "submittals") demonstrating compliance with Contract requirements for each component of the Work. All submittals shall reference the Contract drawings and specifications pertaining to the component of the Work for which the submittal was prepared, and comply with any other requirements for submittals that may be specified elsewhere in this Contract.

(b) Prior to submission, the Contractor shall review all submittals for accuracy, completeness, compliance with Contract requirements, and coordination between different trades and subcontractors. The Contractor shall indicate its approval on all submittals as evidence of such review and coordination. Submittals submitted to the Contracting Officer without evidence of the Contractor’s approval may be rejected without further review.

(c) The Contractor shall not proceed with work or procure products or materials described or shown in submittals until the Contracting Officer has indicated approval of the submittal. If the Contracting Officer disapproves of a submittal, the Contractor shall be entitled to an explanation of the reasons for disapproval. Any work or activity undertaken prior to approval shall be at the Contractor’s risk; should the Contracting Officer subsequently determine that the work or activity does not comply with the Contract, the Contractor shall be responsible for all cost and time required to comply with the Contracting Officer's determination. The Contracting Officer shall have the right to order the Contractor to cease execution of work for which submittals have not been approved. The Government shall not be liable for any cost or delay incurred by the Contractor attributable to the proper exercise of this right.

(d) Approval by the Contracting Officer of any submittal required under this Contract shall not relieve the Contractor from responsibility for any errors or omissions in such submittals, or from responsibility for complying with the requirements of this Contract, except with respect to variations described and approved as changes in accordance with paragraph (e) of this clause.

(e) The Contractor shall be entitled to rely upon approval of submittals containing variations from the requirements of the Contract as a change to the Contract only if the Contractor separately requests approval of the variation at the time of submission and the Contracting Officer has approved the request for variation. Such requests shall fully describe the substance of the variation reflected in the Contractor's submittal. This provision shall not be interpreted as limiting the right of the Government to treat non-conforming work as a change where the Contractor has failed to request a variation in accordance with this clause.

(f) The Contractor shall be entitled to receive notice of action on submittals within a reasonable time, given the volume or complexity of the submittals, and the criticality of the affected activities to Substantial Completion. The Contractor shall not be entitled to receive notice of action on submittals containing variations from Contract requirements in less than twenty working days.

9.

Government’s Right to Stop Work for Non-Compliance

If the Contractor, after receiving written notice from the Contracting Officer of non-compliance with any requirement of this Contract, fails to promptly initiate action to achieve compliance within a reasonable time, the Contracting Officer shall have the right to order the Contractor to stop work under the Contract until the Contractor has complied. The Contractor shall not be entitled to any extension of Contract time or payment for any costs incurred as a result of being ordered to stop work for such cause. Possession of this right by the Contracting Officer shall not relieve the Contractor of its obligation to comply with the Contract, regardless of whether this right is exercised.

10.

Other Contracts

The Government may enter into other contracts to be performed at the Project site including, but not limited to, construction management services. The Contractor shall not impede site access for these other contractors and shall notify GSA immediately if the activities of other contractors interfere with performance of the Contract.

11.

Substantial Completion and Contract Completion

(a) The Work shall be deemed "Substantially Complete" if and only if the Contractor has completed the Work and related Contract obligations in accordance with the Contract Documents, such that the Government may enjoy the intended access, occupancy, possession, and use of the entire Work without impairment due to incomplete or deficient work, and without interference from the Contractor's completion of remaining work or correction of deficiencies in completed work. In no event shall the Work be deemed Substantially Complete if all fire and life safety systems are not tested and accepted by the Authority Having Jurisdiction, where such acceptance is required under the Contract.

(b) At the appropriate time, the Contractor shall submit to the Contracting Officer a written notice specifying a proposed Substantial Completion date (Notice of Substantial Completion). The Contracting Officer shall conduct inspections and make a determination of substantial completion within a reasonable time. If the Contracting Officer takes exception to the Notice of Substantial Completion, the Contractor shall be entitled to a written notice of conditions precluding determination of Substantial Completion.

(c) The Contractor shall be entitled to an extension of time to address such conditions if, and to the extent that, the Contracting Officer provides notice of such conditions more than thirty calendar days from receipt of the Notice of Substantial Completion.

(d) Substantial Completion shall be established by the Contracting Officer's issuance of a written determination specifying the date upon which the Work is Substantially Complete.

(e) The Contract is complete (Contract Completion) if and only if the Contractor has completed all Work and related Contract obligations, corrected all deficiencies, and complied with all conditions for final payment.

(f) Unless otherwise specifically noted, or otherwise clear from context, all references in this Contract to "acceptance" shall refer to issuance of a written determination of Substantial Completion.

(g) The Contractor shall be entitled to neither final payment nor release of any retainage held by the Government until after Contract Completion. If the Contractor does not achieve Contract Completion within the time required by this Contract, the Government shall be entitled, after providing notice to the Contractor, to complete any work remaining unfinished. The Contractor shall be liable to the Government for all costs incurred by the Government to complete such work.

12.

Use and Possession Prior to Substantial Completion Upon notice by the Contracting Officer, the Government shall have the right to take possession of, use, or operate with Government employees or other contractors, any completed or partially completed part of the Work prior to Substantial Completion. Exercise of this right shall not relieve the Contractor of responsibility for completing any unfinished components of the Work, and shall not cause the commencement of any warranty period for any warranty required in this Contract.

13.

Finality of Contract Modifications

As set forth elsewhere in this Contract, the Contractor is entitled to additional consideration under certain conditions, including the issuance of change orders. It is the Contractor's duty to include in proposals for equitable adjustment or other consideration all compensation to which it may be entitled, including cost and time. Unless otherwise explicitly stated in a modification to the Contract providing such consideration, adjustments to the Contract price or time agreed upon therein shall constitute final settlement of the Contractor's entitlement to compensation on account of the change or other condition giving rise to the modification.

14.

Liquidated Damages

(a) The Contractor acknowledges that time is of the essence for the performance of the Work, and that determining actual damages from delay would be extremely difficult and impractical. If the Contractor fails to achieve Substantial Completion of the Work within the time specified in this Contract, the Contractor shall be liable to the Government for liquidated damages at the rate specified in Paragraph I.G. of the Agreement for each calendar day following the required completion date that the Work is not Substantially Complete.

(b) If the Government terminates the Contract for cause, the Contractor shall be liable for liquidated damages at the specified rate for each calendar day following the required completion date that the Work is not Substantially Complete, notwithstanding the fact that the Work may be completed by another entity. Entitlement to liquidated damages under such circumstances shall not limit any other remedy to which the Government is entitled for termination.

(c) If the Contract requires different completion dates for different phases or portions of the Work, the Contractor shall be liable for liquidated damages at the specified rate for each calendar day following the required completion date that the phase or portion of Work is not Substantially Complete. If a single rate is specified, the specified rate shall be apportioned between the different phases or portions of the Work.

(d) If the Government elects to accept any portion of the Work not specifically designated as a phase or portion of Work with its own required completion date, the liquidated damage rate shall be apportioned between accepted work and uncompleted work, and the Contractor's liability for liquidated damages shall be computed accordingly.

15.

Insurance Requirements

(a) The Contractor shall obtain, in addition to any insurance required by law, the following minimum kinds and amounts of insurance required pursuant to FAR clause 52.228-5, "Insurance – Work on a Government Installation."

(i) Workers' compensation insurance in the amount required by the jurisdiction in which the Contract is performed. The Contractor shall obtain Employers' liability coverage of at least $2,000,000. If occupational diseases are not covered by workers' compensation insurance, Employers' liability coverage shall include occupational diseases.

(ii) Broad form comprehensive commercial general liability insurance in the amount of at least $5,000,000 per occurrence. Such insurance shall include, but not be limited to, contractual liability, bodily injury and property damage.

(iii) Comprehensive automobile liability covering the operation of all automobiles used in connection with performing the Contract in the amount of at least $1,000,000 per person and $2,500,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage.

(b) The general and automobile liability policies shall name "The United States of America, acting by and through the General Services Administration," and the construction manager and architect-engineer as applicable, as additional insured with respect to performance of the Contract.

(c) The Contractor shall provide to the Contracting Officer proof that it is has obtained insurance required by the Contract in the form of certificates of insurance. The Contractor shall submit to the Contracting Officer all renewal certificates issued during the life of this Contract immediately upon issuance.

16.

Administrative Matters

(a) Project Meetings. The Contractor shall attend a preconstruction conference and shall participate in regularly scheduled Project meetings.

(b) Schedule of Values. The Contractor shall prepare and submit for approval a detailed cost breakdown of the Contract price, to be referred to as the Schedule of Values, assigning values to each component of the Work. Values must include all direct and indirect costs, although a separate value for bond costs may be established. The Schedule of Values must contain sufficient detail to enable the Contracting Officer to evaluate applications for payment. If this Contract requires that the Project Schedule be cost loaded, the Schedule of Values will be derived from the Project Schedule.

(c) Payments. FAR clause 52.232-5, Payments under Fixed-Price Construction Contracts, is supplemented as follows:

(i) Before submitting a request for payment, the Contractor shall attend pre‑invoice payment meetings each month, as scheduled, with the designated Government representative for the purpose of facilitating review and approval of payment requests. Payment meetings may be conducted in person or by telephone. The Contractor shall provide documentation to support the prospective payment request.

(ii) The Contractor shall submit its invoices to the representative designated in Paragraph I.E. of this Agreement. Separate payment requests shall be submitted for progress payments, payments of retainage, and partial or final payments.

(iii) If the invoice does not meet the requirements of FAR Clause 52.232‑27 (a)(2) and the requirements specified below in paragraphs (iv), (v) and (vi), the Contracting Officer may be return the invoice to the Contractor without payment for correction. If the Contracting Officer disputes the requested payment amount, the Government may pay the portion of the requested payment that is undisputed.

(iv) Invoices shall be submitted in an original and two (2) copies to the designated billing office specified in this Contract or in individual delivery/work orders.

(v) Invoices must include the Account Document Number (ADN) assigned at award.

(vi) The Contractor shall submit the following information or documentation with each invoice:

(A) GSA Form 184 - Construction Progress Report (Construction Phases Only) or AIA Form G702, including the updated Schedule of Values upon which the payment request is based.

(B) GSA Form 2419 - Certification of Progress Payments Under Fixed-Price Construction Contract

(C)The payment terms that apply for the particular services rendered.

(vii) GSA will not be obligated to issue final payment unless the Contractor has furnished to the Contracting Officer a release of claims against the Government relating to this Contract, and submitted all required product warranties, as-built drawings, operating manuals, and other items as specified in the Contract. The Contractor may reserve from the release specific claims only if such claims are explicitly identified with stated claim amounts. All release forms must bear the original signature of the signer and must be affixed with the Contractor’s corporate seal or the seal of a Notary Public.

(viii) If this Contract is funded wholly or in part by the American Recovery and Reinvestment Act of 2009(ARRA), all invoices for work components or Contract Line Items (CLINs) identified as ARRA-funded must cite the work component or CLIN to enable GSA to meet its reporting obligations under ARRA.

(d) Security Clearances. Contractor shall comply with the following requirements pertaining to security clearances.

(i) All personnel performing work under the Contract on the Project site must obtain an Enter on Duty (EOD) determination before they will be granted access to the site.

(ii) To obtain an EOD determination, Contractor shall submit for all such personnel fingerprints on Form FD258 and a completed Contractor Information Worksheet (CIW).

(iii) In addition, all such personnel who will be on site 6 months or longer must apply for and receive clearance in accordance with Homeland Security Presidential Directive 12 (HSPD-12).

(iv) Information concerning these requirements can be found at:

http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=25562&noc=T

(e) Sensitive But Unclassified (SBU) Building Information. The following requirements apply to information contained in this Contract that has been designated as Sensitive But Unclassified (SBU) building information:

(i) The Contractor shall submit to GSA all Contractor-generated documents that may contain SBU building information before the original or any copies are disseminated to any other parties. If GSA identifies SBU content in such documents, the Contracting Officer may direct the Contractor to imprint or affix SBU document markings to the original documents and all copies prior to dissemination.

(ii) The Contractor shall protect SBU building information by strictly limiting access to those individuals having a need to know such information acting on behalf of Federal, State, and local government entities, nongovernment entities engaged in the conduct of business on behalf of or with GSA, and firms currently registered as “active” in the Central Contractor Registration (CCR) database at www.ccr.gov. If a subcontractor is not registered in the CCR and has a need to possess SBU building information, the subcontractor shall provide to the Contractor its DUNS number or its tax ID number and a copy of its business license. This clause shall not be construed to encumber the dissemination of SBU building information to public safety entities.

(iii) The Contractor shall use session or file encryption when transmitting SBU building information electronically outside of the GSA firewall and network. The Contractor shall encrypt sessions or files with an approved NIST algorithm, such as Advanced Encryption Standard (AES) or Triple Data Encryption Standard (3DES), in accordance with Federal Information Processing Standards Publication (FIPS PUB) 140-2, Security Requirements for Cryptographic Modules. Encryption tools that meet FIPS 140-2 are referenced on the NIST web page found at the following URL:

http://csrc.nist.gov/groups/STM/cmvp/documents/140-1/1401vend.htm

All encryption products used to satisfy the FIPS 140-2 requirement should have a validation certificate that can be verified at the following URL:

http://csrc.nist.gov/groups/STM/cmvp/validation.html#02

(Note that not all vendors of security products that claim conformance with FIPS 140-2 have validation certificates.)

(iv) When transmitting SBU building information contained in any physical media, including hardcopy and portable electronic data storage devices, the Contractor shall only use methods of shipping that provide services for monitoring receipt such as track and confirm, proof of delivery, signature confirmation, or return receipt. Portable electronic data storage devices include but are not limited to CDs, DVDs, and USB drives.

(v) The Contractor shall maintain a list of the entities and the firms to which it has disseminated SBU building information. This list must include at a minimum (1) the name of the entity or firm; (2) the name and contact information of the individual at the entity or firm who is responsible for protecting the SBU building information; and (3) a description of the SBU building information provided. Upon completion of the Work, the Contractor shall collect all lists maintained in accordance with this clause, including those maintained by any subcontractors and/or suppliers, and submit them to the Contracting Officer. The Contracting Officer may withhold final payment until the lists are received.

(vi) This Contract requires that the Contractor retain beyond the period of performance certain records that may contain SBU building information. With the exception of such records, upon completion of the Work, the Contractor shall either destroy all records containing SBU building information or return them to the Contracting Officer, as directed by the Contracting Officer. The Contractor shall destroy electronically stored SBU building information by deleting it or otherwise rendering it unreadable and incapable of being restored, in accordance with guidelines provided for media sanitization within Appendix A of NIST Special Publication 800-88, Guidelines for Media Sanitization, available at http://csrc.nist.gov/publications/nistpubs/800-88/NISTSP800-88_rev1.pdf. Examples of acceptable destruction methods for SBU building information are: burning or shredding hardcopies; physically destroying portable electronic storage devices; deleting and removing files from electronic recycling bins; and removing material from computer and hard drives using a permanent-erase utility such as bit-wiping software or disk crushers.

(vii) The Contractor shall verify to the Contracting Officer in writing that SBU building information has been disposed of as required in subparagraph (vi). The Contracting Officer may withhold final payment until written verification is received.

(viii) The Contractor shall immediately report to the Contracting Officer all improper disclosures of SBU building information. If the Contractor fails to comply with any provision of this clause, the Contracting Officer may withhold approval of progress payments until the Contractor provides a corrective action plan explaining how it will rectify any noncompliance and prevent future improper disclosures of SBU building information.

(ix) The Contractor shall insert the substance of this clause in all subcontracts.

Commercial Item Construction Clauses 1.

FAR 52.212-4. Contract Terms and Conditions—Commercial Items (OCT 08) (Deviation APR 09)

(a) Inspection/Acceptance. The clause at FAR 52.246-12, Inspection of Construction, is incorporated herein by reference.

(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. The clause at FAR 52.243-4, Changes, is incorporated herein by reference.

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

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers.