Sample Subcontract CM-GC-SSM.pdf

Seismic Safety and Modernization (SSM) CM-GC - SAMPLE SUBCONTRACT

Signature Page Construction Subcontract Rev 06/18/20

CONSTRUCTION SUBCONTRACT

NO. 7######

The Regents of the University of California Lawrence Berkeley National Laboratory One Cyclotron Road Berkeley, CA 94720

Subcontractor:

[Subcontractor] Attention: [name] [Address] [City, State, Zip] Phone: ###-###-#### Fax: ###-###-#### E-Mail: [name]@ xxx.com

University Procurement Representative:

Name: Name Title: Principal Subcontracts Administrator Phone: 510-486-#### Fax: 510-486-4687 E-Mail: name@lbl.gov

Introduction

This is a Fixed Price Construction Subcontract (hereinafter "Subcontract") for Construction Management and (optional) General Contractor (CM-GC) Services for the Seismic Safety and Modernization (SSM) Construction Project (hereinafter “Project”) for the Lawrence Berkeley National Laboratory (hereinafter "LBNL"), as further described herein.

This Subcontract is between The Regents of the University of California, (hereinafter "The University") and the party identified above as the "Subcontractor".

This Subcontract is issued under Prime Contract No. DE-AC02-05CH11231 between the University and the U.S. Department of Energy (hereinafter "DOE") for the management and operation of the LBNL and the performance of research and related work.

Agreement

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

[SUBCONTRACTOR NAME] THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA

By: By:

Name: Name:

Title: Title:

Date: Date: Month dd, 20yy

Schedule of Articles Page 2 of 39 Construction Subcontract No. ####### Rev 06/18/20

SCHEDULE OF ARTICLES

ARTICLE 1 – SCOPE OF WORK

A. Description

The Subcontractor (also referred to herein as the CM-GC) shall perform all work to provide Phase 1 Construction Manager (Pre-construction) Services (Phase 1 CM Services) for the SSM Construction Project in accordance with this Subcontract and its Incorporated Documents. The services shall include all work that is required by the Subcontract and its Incorporated Documents, and other standards incorporated herein by reference. The full Scope of Work is provided in the incorporated CM-GC Scope of Work included in Article 23 – Incorporated Documents.

The SSM Construction Projects consists of three sub-projects. Phase 1 CM Services shall be provided for the following sub-projects, more specifically described in the Incorporated Documents:

a. Seismic Safety and Modernization (SSM)

b. Traffic Hub and Utility Project (THUP)

c. Demolition Package (Option)

The Subcontractor shall have a current and active California Contractors State License Board (CSLB) Class B Contractor’s License for the duration of this subcontract.

B. Required Documentation

1. The Subcontractor shall submit the following documents to the University Procurement Representative in accordance with the terms of the Subcontract no later than twenty (20) calendar days after the date of award of the Subcontract and before the University will issue a Notice To Proceed for the Phase 1.b and 1.c CM Services:

a. One original Subcontract counter-signed by the CM-GC, and

b. Certificates of Insurance and all required endorsements as specified in Article 13

c. Phase 1 Small Business Subcontracting Plan (SBSP) in accordance with FAR

Clause 52.219-9

2. The Subcontractor shall submit the following Reports, Plans, and Other Documents as required by this Subcontract, in accordance with the CM-GC Scope of Work – Seismic Safety Modernization (SSM) included in Article 23 – Incorporated Documents and as otherwise indicated, to the University Technical Representative, or as otherwise directed by the University Technical Representative:

a. Injury and Illness Prevention Program (IIPP) and Site Specific Safety Plan in accordance with Article 10, including but not limited to:

1. LBNL SSSP Base Form

2. Job Hazards Analysis (JHA) Documents

3. Project Specific Safety Programs or Plans

Schedule of Articles Page 3 of 39

4. Required training, qualification, and/or certification documentation

5. Hazard Communication Documentation (Safety Data Sheets)

6. Medical Surveillance Documentation

7. Any other regulatory driven documentation as required by the LBNL EH&S

Construction Safety Group

b. Quality Assurance Project Plan (QAPjP) and its Quality Assurance/Quality Control (QA/QC) procedures in conformance with the Quality Assurance Requirements for Capital Projects

c. Project Construction Cost Estimate Reports

d. Value Engineering Studies

e. Critical Path Method (CPM) Schedules

f. Constructability Review Reports

g. Incremental Funding Analysis

h. Site Investigation Report

i. Logistics Plan

j. Electrical Energization Plan

k. Temporary Access Plan

l. Lean Implementation Plan

m. Building Information Modeling (BIM) Coordination Plan and Structural-

Mechanical-Electrical-Plumbing Coordination and Clash Detection/Resolution Meeting Reports

n. Construction Waste Management Program

o. Storm Water Pollution Prevention Plan (SWPPP)

p. Bidding Plan including Bid Contingency Recommendation and Bid Package

Certification Reports, as specified herein

q. Request For Information (RFI) Log

r. Project Site Staff Plan

s. Office Support Staff Plan

t. Mechanical and Electrical Equipment Information

ARTICLE 2 – SCHEDULE

A. Time is of the essence for this Subcontract and definite and certain lengths of time have been fixed for performance. Work shall be prosecuted regularly, diligently, and uninterruptedly at such rate of progress as will insure achievement of Scheduled Progress and Completions Milestone Dates specified herein. The date of beginning, rate of progress, and time for completion are reasonable and essential conditions of this Subcontract. No act of forbearance by the University or extension by the University of the time for performance of this Subcontract shall in any way constitute or operate as a waiver of or excuse for any future default by the Subcontractor. No such action by the University shall constitute a waiver, release, or relinquishment of any of the rights or power herein conferred upon the University.

B. The Subcontractor shall fully complete the Phase 1 CM Services by the date specified in the University's Notice To Proceed for commencement of Phase 1 CM Services. The University will issue the Notice to Proceed for commencement of Phase 1 CM Services upon acceptance of the documents identified in Paragraph B.1 of Article 1 - Scope of

Schedule of Articles Page 4 of 39

Work. Pending issuance of the Notice to Proceed, the Subcontractor shall perform other tasks not involving work at the worksite, as authorized or required by the Subcontract.

C. If the University exercises Options 2.a, 2.b and 2.c in Article 4, the Subcontractor shall achieve the following Progress and Completion Milestones no later than the dates specified below:

Scheduled Progress and Completion Milestone Dates

Milestones Dates

#1 - Commence Structural Steel installation tbd after award

#2 - Complete Structural Steel installation tbd after award

#3 - Dry-in building (building skin, roof, openings, penetrations) tbd after award

#4 - Approval by the University of the first EVAP (as defined by Section 013500) tbd after award

#5 - Complete Integrated System Commissioning (as defined by Section 019113) tbd after award

#6 - Achieve Substantial Completion (per Article 12.A) tbd prior to RFP

#7 - Achieve Final Completion and Acceptance (per Article 12.C) tbd prior to RFP

ARTICLE 3 – PRICE AND PAYMENT PROVISIONS

A. Fixed Subcontract Price

The Subcontractor shall perform this Subcontract for the total fixed subcontract price (Subcontract Price) as follows:

Phase 1.a - CM Services for SSM: $#.00 [to be competitively determined prior to award]

Phase 1.b - CM Services for THUP: $#.00 [to be competitively determined prior to award]

Total Phase 1 - CM Services for SSM and THUP: $#.00 [to be competitively determined prior to award]

This funding covers payment for Services through [date and/or milestone XXX in the Scope of Work].

Schedule of Articles Page 5 of 39

The Fixed Subcontract Price shall constitute full payment for the work, materials, services, and all other requirements for performance and completion of this Subcontract, and includes all applicable federal, state, and local taxes, duties and all of the Subcontractor’s other obligations related to such work, and includes all of the Subcontractor’s bonds and insurance required by this Subcontract, and all of the Subcontractor’s overhead and profit (OHP).

B. Fixed Mark-up Rates for Change Orders

For Change Order Work the Fixed Subcontract Price shall be adjusted in accordance with the Change Order Adjustment Clause in the incorporated General Provisions, as follows:

Performed by the Subcontractor: #.#%

Performed by lower-tier subcontractor(s): #.#%

For Bonds, on the increase in the total subcontract price: #.#%

C. Allocated Funding Limit

1. The funding presently allocated for payment to the Subcontractor under this

Subcontract is limited to $.00. [to be determined by the University prior to award] The funding will cover payment through [to be determined by the University prior to award].

2. It is anticipated that the University will increase this allocated funding amount up to Subcontract Price as funding becomes available; however, the University shall not be obligated to do so. The allocated funding amount may only be changed by a written Subcontract Modification issued by the University Procurement Representative.

3. The allocated funding amount specified above shall be the limit of the University's liability for all costs under this Subcontract, any other provision to the contrary notwithstanding. The Subcontractor is not obligated to continue performance under this Subcontract or otherwise incur cost or expenses in excess of the allocated funding amount. The Subcontractor shall notify the University in writing at least thirty (30) working days prior to stopping work to avoid exceeding the allocated funding amount.

D. Payments for Phase 1 CM Services

1. The Subcontractor shall email Applications for Payment (invoices) directly to the LBNL Accounts Payable Office at APInvoice@lbl.gov, on a monthly basis, based on estimated amounts commensurate with the progress of the work, as approved by the University. The “subject” line of the email shall state the Subcontractor’s name and the Subcontract number. If final invoices are not submitted within 180 days of completion, then any amounts paid by the University to that point will represent satisfaction in full by LBNL under this Subcontract and an Accord and Satisfaction.

mailto:APInvoice@lbl.gov

Schedule of Articles Page 6 of 39

This means that LBNL will not be obligated to make any further payments under this Subcontract.

2. Invoice(s) shall state the Subcontract number; the Subcontractor (including business heading or logo); bill to address (same address as above); invoice date; unique invoice number; and remittance address; and shall sufficiently identify the services being invoiced. Invoice(s) in a spreadsheet format are not acceptable, but a spreadsheet can be used to support an invoice. The Subcontractor shall maintain records which support all invoiced amounts, and provide them to the University Procurement Representative upon request.

3. Payment terms shall be Net 30 days, or 15 days if the Subcontractor is a small business, from LBNL receipt of a complete, correct, and properly submitted invoice.

For inquiries about the status of a progress payment, call LBNL Accounts Payable at

(510) 486-6954 or email aphelp@lbl.gov.

ARTICLE 4 – OPTIONS

The University reserves the right to exercise any of the following options, under the stated fixed prices, rates, terms, and conditions of this Subcontract. The exercise of any option shall be by a written Subcontract Modification issued by the University Procurement Representative, and may be exercised at any time after the award of the Phase 1 CM services and within 240 calendar days after award of the Phase 1 CM services:

4.1 Phase 1 CM Services Option

A. Scope of Work

The Subcontractor shall perform the Phase 1 Construction Manager (CM) services described in the Incorporated Scope of Work and other Incorporated Documents included in Article 23 – Incorporated Documents.

1.c – Demolition Package

B. Required Documents

1. The Subcontractor shall submit the following documents to the University

Procurement Representative not more than twenty (20) calendar days after the modification issued by the University Procurement Representative exercising the Phase 1.c CM Services option, and before the University will issue a Notice To Proceed for the Phase 1.c CM Services option:

a. Certificates of Insurance and all required endorsements as specified in

Article 13

2. The Subcontractor shall submit the following Reports, Plans, and Other Documents as required by this Subcontract, in accordance with the CM-GC mailto:vendordesk@lbl.gov

Schedule of Articles Page 7 of 39

Scope of Work – Seismic Safety Modernization (SSM) included in Article 23 -- Incorporated Documents and as otherwise indicated, to the University Technical Representative, or as otherwise directed by the University Technical Representative:

a. Injury and Illness Prevention Program (IIPP) and Site Specific Safety Plan in accordance with Article 10, including at a minimum:

• LBNL SSSP Base Form

• Job Hazards Analysis (JHA) Documents

• Project Specific Safety Programs or Plans

• Required training, qualification, and/or certification documentation

• Hazard Communication Documentation (Safety Data Sheets)

• Medical Surveillance Documentation

• Any other regulatory driven documentation as required by the LBNL

EH&S Construction Safety Group

b. Quality Assurance Project Plan (QAPjP) and its Quality Assurance / Quality Control (QA/QC) procedures in conformance with the Quality Assurance Requirements for Capital Projects

c. Project Construction Cost Estimate Reports

d. Value Engineering Studies

e. Critical Path Method (CPM) Schedules, updated monthly through Final

Completion

f. Constructability Review Reports

g. Incremental Funding Analysis

h. Site Investigation Report

i. Logistics Plan

j. Electrical Energization Plan

k. Temporary Access Plan

l. Lean Implementation Plan

m. Building Information Modeling (BIM) Coordination Plan and Structural-

Mechanical-Electrical-Plumbing Coordination and Clash Detection/Resolution Meeting Reports

n. Construction Waste Management Program

o. Storm Water Pollution Prevention Plan (SWPPP)

p. Bidding Plan including Bid Contingency Recommendation and Bid Package

Certification Reports, as specified herein

q. Request For Information (RFI) Log

r. Project Site Staff Plan

s. Office Support Staff Plan

t. Mechanical and Electrical Equipment Information for Independent

Commissioning Authority (CxA) to develop Functional Performance Tests

4.2 Phase 2 GC Services Options

A. Scope of Work

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The Subcontractor shall perform the Phase 2 General Contractor (GC) services described in the Incorporated Scope of Work and other Incorporated Documents included in Article 23 – Incorporated Documents.

The Subcontractor shall require that all lower-tier subcontractors must have an active CSLB Contractor’s License as required for the work the lower-tier subcontractor is performing under this Subcontract.

2.a – Seismic Safety Modernization (SSM), generally described as follows:

• Main Building

• Utilities within 5 feet outside of exterior walls

• Site grading and Paving

• All associated General Requirements

2.b – Traffic Hub and Utilities Project (THUP), generally described as follows:

• Bus stop

• Utilities outside of 5 feet outside of exterior walls

• Landscaping

2.c – Demolition Package, generally described as follows:

• Demolition

• Earthwork

• New Retaining Walls

• Utilities relocation as required

B. Required Documents

1. The Subcontractor shall submit the following documents to the University Procurement Representative not more than twenty (20) calendar days after the modification issued by the University Procurement Representative exercising the Phase 2 GC Services option, and before the University will issue a Notice To Proceed for the Phase 2 GC Services:

a. Completed Statement and Acknowledgment form (SF 1413) included in Article 23 – Incorporated Documents, for the Subcontractor and all the lower-tier subcontractors,

b. Certificates of Insurance and all required endorsements as specified in Article 13,

c. Performance and Payment Bonds in accordance with the Payment Bond and Performance Bond clauses in the General Provisions included in Article 23 – Incorporated Documents, in amounts equal to the Total Current Subcontract Award, and

d. Detailed Construction Schedule acceptable to the University depicting activities for the first ninety (90) working days after Notice To Proceed for

Schedule of Articles Page 9 of 39 the Phase 2 GC Services, including a summary level of activities beyond the first ninety (90) working days for the duration of the Phase 2 GC Services

e. Phase 2 Small Business Subcontracting Plan (SBSP) in accordance with FAR Clause 52.219-9

2. The Subcontractor shall complete and submit the following Reports, Plans, and

Other Documents as required by the Incorporated Scope of Work included in Article 23 – Incorporated Documents or as otherwise indicated:

a. Monthly Safety Report

b. Monthly updated current Critical Path Method (CPM) Schedules

c. Electrical Energization Plan, updated as directed by the University

Technical Representative

d. Commissioning Schedule, updated as directed by the University Technical

Representative

e. Temporary Access Plan, updated as directed by the University Technical

Representative

f. Building Information Modeling (BIM) Coordination Plan and Structural-

Mechanical-Electrical-Plumbing Coordination and Clash Detection/Resolution Meeting Reports, updated as directed by the University Technical Representative

g. Weekly-updated List of Proposed Substitutions

h. Weekly-updated Request For Information (RFI) Log

i. Weekly-updated Submittal Log

j. Weekly-updated Change Order Request Log

k. Weekly Certified Payroll Reports, in accordance with the requirements of

40 U.S.C. subchapter IV, Wage Rate Requirements (Construction) (hereinafter Davis-Bacon Act) and related requirements specified herein

l. Semi-annual Small Business Subcontracting Reports, in accordance with Part V of the approved Small Business Subcontracting Plan (SBSP) included in Article 23 – Incorporated Documents, for the six months reporting period ending March 31st and the twelve months reporting period ending September 30th, due no later 30 days after the close of each reporting period

m. Equal Opportunity and Affirmative Action Compliance Requirements Reports, in accordance with Article 11

n. EPA-Designated Items Reports, in accordance with Article 16

o. Punch List, in accordance with Article 12

p. As-Built Record Set of plans and specifications

C. 40 U.S.C. subchapter IV, Wage Rate Requirements (Construction) (hereinafter the

Davis-Bacon Act) and Related Requirements

1. The construction work associated with the Phase 2 GC Services is subject to Construction Labor Standards and related labor standard Federal Acquisition Regulation (FAR) clauses identified in the General Provisions (FAR Clauses 52.222-6 through 52.222-15). In these incorporated clauses, the term https://www.esrs.gov/

Schedule of Articles Page 10 of 39

“University Procurement Representative” is substituted for the term “Contracting Officer” and the term “Subcontractor” is substituted for “Prime Contractor”. The Subcontractor shall pay its employees at least the minimum wages established by the General Wage Determination of the U.S. Department of Labor identified in this Subcontract and shall comply with all other related requirements. The Wage Determination and the Davis-Bacon Poster (WH- 1321) shall be posted at all times by the Subcontractor and its subcontractors at the primary site of the work and the secondary site of the work, if any, in a prominent and accessible place where it can be easily seen by the workers.

The most current version of the Davis-Bacon Poster is available at:

http://www.dol.gov/whd/regs/compliance/posters/fedprojc.pdf.

2. The Subcontractor shall submit a completed and signed Statement and Acknowledgment Form (SF 1413) for itself and each lower tier subcontractor providing construction labor under this Subcontract.

3. The Subcontractor shall also furnish weekly a payroll statement for all laborers and mechanics performing work at the worksite during the preceding week, accompanied by a signed "Statement of Compliance" indicating that the payrolls are correct and complete and that each laborer or mechanic has been paid not less than the proper Davis-Bacon prevailing wage rate for the work performed. The required weekly payroll information shall be submitted electronically utilizing LBNL's LCPtracker© System, which is available at https://lcptracker.net/lcp/login.aspx, unless otherwise authorized by the University Procurement Representative. Registration should be coordinated with the University Procurement Representative. The Subcontractor shall ensure that the final payroll entered for work subject to the Davis-Bacon Act performed under the Subcontract by the Subcontractor and each lower-tier subcontractor is designated as “Final” in LCPTracker©.

D. Schedule

1. Liquidated Damages

If the Subcontractor neglects, refuses or fails to complete the work within the time specified, whether or not the Subcontractor’s right to proceed is terminated under the clause in the General Provisions entitled Default (Fixed Price Construction), subject to extensions of time duly granted in the manner and for the causes specified in said clause, the Subcontractor and its sureties shall be liable to the University for liquidated and ascertained damages for each calendar day that the work remains incomplete beyond the date specified herein for the Subcontractor to achieve Substantial Completion, in the amount of $7,500.00 USD per calendar day.

It is hereby expressly and mutually agreed that it would be impracticable and extremely difficult to fix the actual damage which would or will be suffered in the event that the Subcontractor should fail to fully complete the work within the time specified, and it is further agreed that said amount herein provided http://www.dol.gov/whd/regs/compliance/posters/fedprojc.pdf https://lcptracker.net/lcp/login.aspx

Schedule of Articles Page 11 of 39 for said liquidated and ascertained damages is reasonable and proper. The amount so charged may be deducted by the University from any amounts which otherwise become payable to the Subcontractor.

2. Delays and Suspensions

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

Adjustments will be made to the Scheduled Progress and Completion Milestone Dates for delays arising from unforeseeable causes beyond the control and without the fault or negligence of the Subcontractor, as described in the Default clause of the General Provisions (FAR 52.249-10), only under the following conditions:

a. The progress of the work is in accordance with the Subcontract work schedule at the commencement of the event giving rise to the delay, and

b. The event causing the delay causes a delay in completing the work beyond the completion date established herein.

Any adjustment of the fixed price of this Subcontract as the result of a suspension of work for the University's convenience, pursuant to the Suspension of Work clause of the General Provisions (FAR 52.242-14), shall include full compensation for the CM-GC and any of the CM-GC’s lower-tier subcontractors, shall be the total compensation owed by the University for the suspension of work for the University’s convenience, and shall not exceed $#.00 [to be competitively determined prior to award] per day for each day such compensation is payable.

E. Fixed Subcontract Price and Fixed Mark-up Rates

The Subcontractor shall perform the Phase 1 CM Services for the following fixed prices:

1.c Demolition Package: $#.00

The Subcontractor shall perform the Phase 2 GC Services for the following fixed prices:

2.a Seismic Safety Modernization – General Requirements: $#.00

2.b Traffic Hub and Utilities Project – General Requirements: $#.00

2.c Demolition Package – General Requirements: $#.00

Schedule of Articles Page 12 of 39

The Fixed Subcontract Price for Phase 2 GC Services – General Requirements shall exclude:

• Phase 1 CM Services

• OHP on lower-tier subcontractors Bid Packages (to be included in the fixed mark-up for Phase 2 GC Services –lower-tier subcontractors Bid Packages)

• Insurance and bonds on lower-tier subcontractors Bid Packages (to be included in the fixed mark-up for Phase 2 GC Services –lower-tier subcontractors Bid Packages)

The Fixed Subcontract Price for Phase 2 GC Services – Lower-tier subcontractors Bid Packages shall include:

• Subcontractor-certified / LBNL-consented Bid Packages

• Subcontractor’s mark-up on Phase 2 GC Services – Lower-tier subcontractors Bid Packages for insurance and bonds at a fixed rate of ##.#% [to be competitively determined prior to award] of the Phase 2 GC Services – Lower-tier subcontractors Bid Package price

• Subcontractor’s mark-up on Phase 2 GC Services – Lower-tier subcontractors Bid Packages for overhead, profit, and other allowable allocable indirect costs at a fixed rate of ##.#% [to be competitively determined prior to award] of the Phase 2 GC Services – Lower-tier subcontractors Bid Package price

F. Payments for Phase 2 GC Services

The University will make payments to the Subcontractor in accordance with:

a) FAR 52.232-5 sections (d), (i), and (j) incorporated in the General Provisions, and

b) Additional requirements set forth herein under Payments for Phase 2 GC Services

1. Progress Payments

The University will make monthly progress payments for work which meets the standards of quality established under this Subcontract and based on amounts commensurate with the progress of the work, prepared and submitted by the Subcontractor, clearly supported by the Construction Progress Schedule, and approved by the University.

On a monthly basis, the Subcontractor shall email a completed Application for Payment for the progress period, with content, detail, and format acceptable to the University, directly to the LBNL Accounts Payable Office at APInvoice@lbl.gov, with copies to [Procurement Representative]@lbl.gov and [Technical Representative]@lbl.gov. The "subject" line of the email shall state the Subcontractor's name and the Subcontract number.

mailto:APInvoice@lbl.gov

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The Subcontractor’s Application For Payment shall include the following substantiation:

i. An itemization of the amounts requested, related to the various elements of work required by the contract covered by the payment requested.

ii. A listing of the amount included for work performed by each subcontractor under the contract.

iii. A listing of the total amount of each subcontract under the contract.

iv. A listing of the amounts previously paid to each such subcontractor under the contract.

v. Additional supporting data in a form and detail required by the

Contracting Officer.

If requested, the Subcontractor shall also submit receipts or other vouchers showing its payments for material and labor to its lower-tier subcontractors and suppliers. The Application for Payment shall include all information required by the Incorporated Document. The Subcontractor's requested amount must be commensurate with the progress of the work and shall exclude all amounts for materials to which Subcontractor has not acquired title.

As part of a progress payment, the University may authorize payment for material delivered on the site and preparatory work completed. Payment for material delivered to the Subcontractor at locations other than the site may also be allowed if:

a. Material is delivered to a remote location which is specifically authorized by this Subcontract; and

b. The Subcontractor furnishes satisfactory evidence that it has acquired title to such material and that the material will be used to perform this Subcontract.

c. LBNL authorization is granted in writing and in advance of the deliveries.

2. Certification for Progress Payments

Along with the first request for a progress payment the Subcontractor shall furnish the following certification, or payment will not be made:

"I hereby certify, to the best of my knowledge and belief, that:

The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the Subcontract;

Timely payments will be made from the proceeds of the payment covered by this certification, in accordance with the lower-tier subcontracts; and

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This request for progress payments does not include any amounts which will be withheld or retained from a lower-tier subcontractor or supplier in accordance with the terms and conditions of the lower-tier subcontract.

This certification is not to be construed as final acceptance of the Subcontractor’s performance or final acceptance of any lower-tier subcontractor’s or supplier’s performance.

(Name)

(Title)

(Date)”

Along with each subsequent request for a progress payment the Subcontractor shall furnish the following certification, or payment will not be made:

"I hereby certify, to the best of my knowledge and belief, that:

The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the Subcontract;

All payments due to lower-tier subcontractors and suppliers from previous payments to the Subcontractor received under this Subcontract have been made from previous payments received under the Subcontract, and timely payments will be made from the proceeds of the payment covered by this certification, in accordance with the lower-tier subcontracts and the requirements of Chapter 39 of Title 31, United States Code; and

This request for progress payments does not include any amounts which will be withheld or retained from a lower-tier subcontractor or supplier in accordance with the terms and conditions of the lower-tier subcontract.

This certification is not to be construed as final acceptance of the Subcontractor’s performance or final acceptance of any lower-tier subcontractor’s or supplier’s performance.

(Name)

(Title)

(Date)”

3. Payment Terms

Payment terms shall be Net 30 days, or 15 days if the Subcontractor is a small business, from LBNL receipt of a complete, correct, and properly submitted

Schedule of Articles Page 15 of 39

Application For Payment, and receipt and acceptance by the LBNL of an updated Construction Progress Schedule in accordance with General Requirements Section 013216 – Construction Progress Schedule. For inquiries about the status of a progress payment, call LBNL Accounts Payable at (510) 486-6954 or email aphelp@lbl.gov.

The Subcontractor will pay its lower-tier subcontractors and suppliers the appropriate share of any payment received from LBNL not later than the 10th day after the date such payment is received by the Subcontractor. The foregoing requirement does not apply to any payment withheld because of a bona fide dispute between the Subcontractor and a lower-tier subcontractor or supplier.

4. Retention

In making such progress payments, ten percent (10%) thereof may be retained until final completion and acceptance of all Phase 2 GC Services work covered by the Subcontract. On completion and acceptance of any separate building, public work, or other division of the Subcontract on which the price is stated separately in the Subcontract, payment may be made in full, including retained percentages thereon, less deductions or withholdings authorized by this Subcontract.

5. Withholding of Payment

The University may withhold progress payment to the Subcontractor to the extent necessary to protect the University upon the occurrence of any one or more of the following events.

a. Any failure of the Subcontractor to comply fully with any requirement of this Subcontract including, but not limited to, the following.

1. Failure to submit to the University a Construction Progress Schedule in accordance with General Requirements Section 013216 – Construction Progress Schedule, that is updated as of the current Application For Payment period and is acceptable to the University Technical Representative.

2. Failure to adhere to, or recover to, the proposed construction schedule.

3. Failure to furnish Payment and Performance Bonds in an amount equal to the Subcontract Price.

4. Failure to make prompt payment to lower tier subcontractors for labor, materials, or services related to the work for which the Subcontractor has been paid by the University.

5. Failure to rectify defective, omitted, non-conforming, or unauthorized work.

6. Failure to timely submit required semi-annual Small Business Subcontracting Plan Reports.

mailto:vendordesk@lbl.gov

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b. The filing, delivery, or recording of any claim, lien, stop notice, or similar action against the University or the work.

c. Any damage caused to a third party by the Subcontractor by reason of negligent acts of the Subcontractor where such acts are related to the work under this Subcontract.

The University reserves the right to determine the amount and degree of withholding, provided that the withholding shall not be unreasonable. The University will pay withheld amounts promptly upon removal of the grounds for such withholding.

When the work is substantially complete, the University may retain from previously withheld amounts or future payments an amount the University considers adequate for protection of the University until final payment is made under this Subcontract, and will release to the Subcontractor all the remaining withheld funds.

6. Transfer of Title to the Government; Liability; and Reservation of Rights

All materials and work covered by progress payments shall thereupon become the property of the Government, but this provision shall not be construed as relieving the Subcontractor from the sole responsibility for all materials and work upon which payments have been made, or the restoration of payments for any lost, stolen, damaged or destroyed work, or work otherwise not accepted under this Subcontract, or as a waiver of the right of the University or the Government to require the fulfillment of all of the terms of the Subcontract. The Subcontractor shall take whatever action is necessary to protect and establish said Government title to all materials and work covered by progress payments made hereunder.

7. Final Payment

Subject to the terms hereof, final payment shall be made 35 calendar days after the recording by the County of Alameda of the Notice of Completion for the work under this Subcontract. For inquiries about the status of the final payment, call LBNL Accounts Payable at (510) 486-6954. The University will make the final payment under this Subcontract, including any retention or withhold, after:

a. Final completion and acceptance of all work;

b. The recording by the County of Alameda of the Notice of Completion for the work;

c. Submittal of a complete, correct, and properly submitted Application For

Payment;

d. Entry by Subcontractor and all lower tier subcontractors performing work on the jobsite of all weekly certified payroll in LCPTracker, and designation of its last payroll period as “Final” by Subcontractor and all lower-tier subcontractors performing work on the jobsite, Schedule of Articles Page 17 of 39

e. The University’s receipt of a Payment Bond and Performance Bond in the amount of the Subcontract Price at Final Completion, and

f. Presentation of a completed Assignment and Release of all claims against the DOE and/or the University arising by virtue of this Subcontract, for the Subcontract Price at Final Completion, signed by a properly authorized representative of the Subcontractor and any assignees, using the form included in Article 23 – Incorporated Documents. A release may also be required of any assignee if the Subcontractor’s claim to amounts payable under this Subcontract has been assigned under the Assignment of Claims Act of 1940 (United States Code (U.S.C.) 31 U.S.C.3727 and 41 U.S.C.6305).

ARTICLE 5 – QUALITY ASSURANCE REQUIREMENTS

A. Work may not commence at the worksite until the Subcontractor submits a Quality Assurance Project Plan (QAPjP) and its Quality Assurance/Quality Control (QA/QC) procedures in conformance with the Quality Assurance Requirements for Capital Projects included in Article 23 -- Incorporated Documents, that demonstrate how the QAPjP will be implemented for the Subcontract’s duration and the University Procurement Representative issues a written Notice to Proceed.

In some instances, the Subcontractor may be able to use its Corporate Quality Management System or QA Program and QA/QC procedures that were reviewed by LBNL’s Office of Institutional Assurance & Integrity (OIAI) as part of the bid process in lieu of developing a project-specific QAPjP and QA/QC procedures depending on the type of and location where work will be performed. This determination will be made by

OIAI.

The Subcontractor may proceed with all other work authorized or required by the Subcontract in preparation for performance at the worksite.

B. This Subcontract is subject to the requirements in Attachment 1 (Contractor

Requirements Document) and Attachment 3 (Suspect/Counterfeit Item Prevention) in Department of Energy Order (DOE O) 414.1D, Quality Assurance, in the incorporated General Provisions. It applies to all work performed for the University by its Subcontractors. Provisions implementing the requirements must be flowed down to lower-tier subcontractors. A copy of the Order is available at the following website:

https://www.directives.doe.gov/directives-browse#c11=Order&c11=Manual&c11=Policy&c11=Notice&c11=Cancellation+Notice& c11=Certification+Memo&c8-operator=or&b_start=0.

C. Implementation and Revisions. The Subcontractor must establish and maintain an adequate Quality Management System or Quality Assurance (QA) Program. Upon system approval by the University Procurement Representative, the Subcontractor shall fully implement the Quality Management System or QA Program. If the Subcontractor’s corporate leadership structure and/or organization changes; Quality Management System or QA Program is revised; and/or any 3rd party accreditations are received and/or discontinued during performance of this Subcontract, the Subcontractor shall https://www.directives.doe.gov/directives-browse#c11=Order&c11=Manual&c11=Policy&c11=Notice&c11=Cancellation+Notice&c11=Certification+Memo&c8-operator=or&b_start=0 https://www.directives.doe.gov/directives-browse#c11=Order&c11=Manual&c11=Policy&c11=Notice&c11=Cancellation+Notice&c11=Certification+Memo&c8-operator=or&b_start=0 https://www.directives.doe.gov/directives-browse#c11=Order&c11=Manual&c11=Policy&c11=Notice&c11=Cancellation+Notice&c11=Certification+Memo&c8-operator=or&b_start=0

Schedule of Articles Page 18 of 39 notify the University Technical Representative of such changes in writing and shall submit any revised Quality management system or QA Program for review by LBNL's OIAI and approved by the University Procurement Representative.

D. Rights of Access. The Subcontractor agrees to allow the University, or its designee, access to the Subcontractor’s facilities and records for additional compliance reviews after Subcontractor award to assess whether the Subcontractor is operating the Quality Management System or QA Program efficiently and producing accurate data.

ARTICLE 6 – SUBCONTRACT PERFORMANCE INCENTIVE REWARD PROGRAM

(Applicable if the University exercises the Phase 2 GC Options in Article 4)

A. At the completion of the Phase 1 CM Services, the University may elect to add to the

Subcontract a Subcontract Performance Incentive Reward (SPIR) Program that is intended to reward and compensate the Subcontractor to the degree its performance and execution of the CM-GC Services achieves results desirable to the University with respect to the following:

1. Schedule (earned if the University determines the Subcontractor has achieved Progress and Completion Milestones earlier than as specified herein)

2. Safety Allowance (based on a Safety Program to be proposed by the Subcontractor and approved by the University during Phase 1 CM Services)

B. Maximum Subcontract Value

1. The Maximum Subcontract Value is the sum of the Subcontract Price and the maximum potential amount of a SPIR the Subcontractor may earn at the University’s sole discretion for achieving performance objectives as determined by the University.

The Subcontract Price shall be determined by the University after completion of the Phase 1 CM Services – Lower-tier subcontractors Bid Package Services.

2. The Maximum Subcontract Value can only be changed by a written Subcontract Modification issued by the University Procurement Representative.

3. The Maximum Subcontract Value shall not be increased for work that was included in the design prepared by the A-E during Phase 1 CM Services if the work was discoverable or foreseeable during Phase 1 CM Services, nor for circumstances which the Subcontractor, performing the services with reasonable professional due diligence could have prevented or mitigated.

4. The Maximum Subcontract Value may be decreased for amounts deducted by the

University from amounts otherwise payable to the Subcontractor as provided herein.

5. The maximum potential amount of the SPIR shall not be greater than the amount by which the Maximum Subcontract Value exceeds the Subcontract Price after the modification issued by the University incorporating all work contained in all Bid

Schedule of Articles Page 19 of 39

Packages after the Subcontractor has completed the Bid Package Services. No SPIR compensation shall be earnable by the Subcontractor if the Fixed Price after the modification issued by the University incorporating all work contained in the Bid Packages exceeds the Maximum Subcontract Value determined by the University:

Maximum Subcontract Value $#.00

Less Fixed Price after completion of the Bid Package Services $#.00

Maximum Potential Subcontractor Performance Incentive Reward $#.00

C. SPIR Allocation

1. The Maximum Potential SPIR shall be allocated as follows:

Schedule Performance Incentive Reward (SchPIR) $#.00

Safety Program $#.00

2. The SchPIR shall be allocated as follows:

Milestones Allocation

#1 - Commence Structural steel installation $#.00

#2 - Complete Structural steel installation $#.00

#3 - Dry-in building (building skin, roof, openings, penetrations) $#.00 #4 - Approval by the University of the first EVAP (as defined by Section 013500) $#.00 #5 - Complete Integrated System Commissioning (as defined by Section 019113) $#.00

#6 - Achieve Substantial Completion (per Article 12.A) $#.00

#7 - Achieve Final Completion and Acceptance (per Article 12.C) $#.00

[All amounts to be determined by the University after completion of the Bid Package Services.]

3. A SchPIR allocation shall be earned by the Subcontractor if the University determines the Subcontractor has achieved the Milestone earlier than the Milestone dates specified in the Scheduled Progress and Completion Milestone Dates. An earned allocation shall be included in the Subcontract Price by a written Subcontract Modification issued by the University Procurement Representative.

Schedule of Articles Page 20 of 39

4. Safety Program Allowance. The details of the Subcontractor’s Safety Program are described in Paragraph 1.4 of Section 013529 [Environmental, Safety, and Health Procedures] listed in Article 23, D.11 – Incorporated Documents. The Subcontractor’s compensation for the Subcontractor Safety Program, after approved by the University, shall be included in the Subcontract Price by a written Subcontract Modification issued by the University Procurement Representative.

ARTICLE 7 – BID PACKAGE SERVICES AND SUBCONTRACTING WITH LOWER-TIER

SUBCONTRACTORS (Applicable if the University exercises the Phase 2 GC Options in Article 4)

A. All lower tier subcontracts shall be in writing. The Subcontractor shall incorporate all relevant clauses of this Subcontract into its lower tier subcontracts to ensure full and consistent compliance with the Subcontract, and shall include all relevant FAR and DEAR requirements, including but not limited to the requirements of FAR 52.222-1, Notice to the Government of Labor Disputes.

B. The Subcontractor shall allow 30 calendar days for the University’s review of all proposed awards of Bid Packages to lower tier subcontractors after certification and submittal of Bid Packages to the University. The Subcontractor will not be entitled to an extension of the Subcontract Time or compensation for delay if the Subcontract Modification incorporating the Bid Packages is issued on or before the duration of the 30 calendar day review period, or if there are unresolved issues attributable to the Subcontractor’s failure to conduct the bid process in accordance with this Subcontract, the Subcontractor’s approved Bidding Plan and/or written direction from the University with respect to the subject Bid Package.

ARTICLE 8 – PARTNERING

A. In order to most effectively accomplish this Subcontract, the University intends to participate in partnering activities at the LBNL site with the Subcontractor and its lower tier subcontractors and the A-E and its subconsultants, to ensure timely, cost-effective, safe, and quality completion of the Subcontract. This partnership would strive to draw upon the strength of each organization in an effort to achieve a quality project performed safely, right the first time, within budget, and on schedule. It would include, but not be limited to, consideration of each other's interests and requirements; fostering clear, objective communication among all persons who are involved; development of mutual goals and objectives and strategies for implementation; and periodic objective evaluation to assure these goals and objectives are being met.

B. The initial step towards this end will be a one day workshop (with the potential of a two day) during the beginning of the Phase 1 CM Services. Attendees at the workshop would include key personnel of the University, the A-E, and the CM-GC. Subsequent workshop(s) during Phase 2 GC Services would include key personnel of lower tier subcontractors. Key personnel may include a principal of the firm(s), the Project Manager, Assistant Project Manager, and Superintendent. The Workshop will be conducted by a professional facilitator mutually acceptable to the University, the A-E, and the Subcontractor.

Schedule of Articles Page 21 of 39

C. The Subcontractor may participate in follow-on partnering activities on a periodic basis over the duration of the Subcontract, upon mutual agreement of the Subcontractor and the University.

D. The expense of the initial workshop during Phase 1 CM Services, subsequent workshop(s) during Phase 2 GC Services, and any additional partnering activities, shall be shared equally between the A-E, the CM-GC, and the University, under a separate agreement. Costs associated with the partnering activities will not be included in this Subcontract.

ARTICLE 9 – SUBCONTRACT ADMINISTRATION

A. University Procurement Representative

The designated University Procurement Representative for this Subcontract is the person authorized to make changes in the requirements of this Subcontract or make modifications to this Subcontract, including changes or modifications to the work. The Subcontractor shall submit all documents, notices, and requests for approval required by this Subcontract to the University Procurement Representative at the email address indicated on the signature page or at the following mail address:

Lawrence Berkeley National Laboratory One Cyclotron Road M/S 971-PROC Berkeley, CA 94720

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

B. University Technical Representative

[Technical Representative Name] is the University Technical Representative for this Subcontract (also called Project Manager).

In instances where the University Technical Representative designated above is out of the office for an extended period of time or is otherwise unavailable, and an immediate need arises, [Technical Representative Name] shall be the University Technical Representative.

The University Technical Representative is the person designated to monitor the Subcontract work and to interpret and clarify the technical requirements, but may not modify the terms of this Subcontract. The University Technical Representative may also issue Field Directed Changes to the Subcontractor’s authorized field representative for the purpose of making changes within the general subcontract scope of work as necessary to change (as defined in the subcontract) and/or to clarify or supplement specifications or other related technical documents, provided that the Field Directed Change is authorized in writing and the price is estimated at or below $25,000.

If the cost will exceed this amount, changes or additional work can only be authorized by the University Procurement Representative by a Subcontract Modification. The final

Schedule of Articles Page 22 of 39 price, schedule, and other subcontract adjustments resulting from a Field Directed Change must be authorized by the University Procurement Representative by a Subcontract Modification.

The University Technical Representative is authorized, without limitation, to:

1. Represent LBNL, as required, at all design or construction management meetings, and communicating LBNL requirements, as…