Sample Subcontract.pdf

Sample Subcontract Page 1

SAMPLE SUBCONTRACT

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

Subcontractor:

TBD

Attention:

Address:

Phone:

Fax:

E-Mail:

University Procurement Representative:

Name: Emily Mastronardi Phone: (510) 486-6932 E-Mail: EMastronardi@lbl.gov

Introduction This is a Fixed Price Construction subcontract (hereinafter "Subcontract") for National Energy Research Scientific Computing Center (NERSC) Facility Upgrade II Project, as further described herein.

This Subcontract is between The Regents of the University of California, (hereinafter "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 United States Government (hereinafter "U.S. Government"), represented by the Department of Energy (hereinafter "DOE") for the management and operation of the Lawrence Berkeley National Laboratory (hereinafter "LBNL") and the performance of certain research and development 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.

TBD

THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA

By:

By:

Name:

Name:

Title:

Title:

Date:

Date:

mailto:EMastronardi@lbl.gov

Sample Subcontract Page 2

SCHEDULE OF ARTICLES

ARTICLE 1 - SCOPE OF WORK

A. Description

The Subcontractor must perform all work for construction of NERSC Facility Upgrade II Project, in accordance with this Subcontract and the Statement of Work entitled “NERSC Facility Upgrade II (NFU2) Construction,” dated 2/6/2024, Drawings entitled “Building 59 NERSC Facility Upgrade II,” dated 1/29/2024, and Specifications entitled “Building 59 NERSC Facility Upgrade II Project Manual,” dated 1/29/2024 incorporated by reference herein. The worksite is located at One Cyclotron Road, Berkeley CA.

The Subcontractor agrees to perform additional work arising from changes ordered by the University pursuant to the Changes clause of the General Provisions.

B. Required Documentation

1. The following documents must be submitted and accepted by the University Procurement Representative no later than 10 days after the date of award of the Subcontract. A Notice to Proceed must be issued before any work may commence at the worksite.

● Site Specific Safety Plan, Injury and Illness Prevention Program (IIPP), and Job Hazards Analysis(es) (JHAs) (as required by the LBNL (Environmental Health & Safety (EH&S) Operations Support Team)

● Statement and Acknowledgment Form (SF 1413)

● Insurance Certificate and Endorsements

● Performance Bond (per the Performance Bond clause of the General Provisions)

● Payment Bond (per the Payment Bond clause of the General Provisions)

2. The Subcontractor must complete and submit each of the following documents to the University as required by this Subcontract.

● Application for Payment

● Weekly Payroll Information

● Assignment and Release

3. The Subcontractor must submit other reports with respect to the Subcontractor's activities under this Subcontract, including reports on use of U.S. Environmental Protection Agency (EPA)-designated items and U.S. Government-owned property, as required by this Subcontract or as the University may require from time to time.

C. Construction Wage Rate Requirements (formerly known as the Davis-Bacon Act) and Related

Requirements

1. The construction work is subject to the Construction Wage Rate Requirements (formerly known as the Davis-Bacon Act) and related labor standard clauses identified in the General Provisions (Federal Acquisition Regulation (FAR) Clauses 52.222-6 through 52.222-15).

The Subcontractor must pay its employees at least the minimum wages established by the General Wage Determination of the U.S. Department of Labor which are identified in this

Sample Subcontract Page 3

Subcontract and must comply with all other related requirements. The Wage Determination and the Davis-Bacon Poster (WH-1321) must 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. Subcontractors are advised that any revisions to the Davis-Bacon Poster must render prior versions of the poster obsolete and thus the subcontractor must expeditiously replace older versions with the current. Davis-Bacon Poster instructions can be found at https://www.dol.gov/whd/regs/compliance/posters/davis.htm.

2. The Subcontractor must 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 must 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 Construction Wage (formerly known as the Davis-Bacon Act) prevailing wage rate for the work performed.

The Subcontractor must ensure that the final payroll entered for work subject to the Construction Wage Rate Requirements (formerly known as the Davis Bacon Act) performed under the Subcontract by Subcontractor and each lower-tier subcontractor is designated as "Final" in LCPTracker©. The required weekly payroll information must be submitted electronically utilizing LBNL's LCPtracker© System, which is available at https://prod-cdn.lcptracker.net/login/login, unless otherwise authorized to submit payroll records by the University Procurement Representative. Registration should be coordinated with the University Procurement Representative.

ARTICLE 2 - WORK SCHEDULE

A. Schedule

The work described herein must commence upon signature of this Subcontract by both parties and must be completed on or before [date].

B. The Subcontractor may perform tasks not involving work at the worksite. The Subcontract must not commence any work at the Berkeley Lab worksite that is subject to the Berkeley Lab EH&S Construction Safety requirements until the University issues a Notice to Proceed (NTP).

C. The University will issue the NTP after the Subcontractor submits and the University reviews as adequate, the documents identified in Article 1.

D. It is agreed that time is of the essence for this Subcontract and definite and certain lengths of time have been fixed for performance. Work must be prosecuted regularly, diligently, and uninterruptedly at such rate of progress as will insure completion thereof within the time specified. The date of beginning, rate of progress, and time for completion are reasonable and essential conditions of this Subcontract. No act of forbearance by 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 http://www.dol.gov/whd/regs/compliance/posters/fedprojc.pdf https://www.dol.gov/whd/regs/compliance/posters/davis.htm https://prod-cdn.lcptracker.net/login/login

Sample Subcontract Page 4 by the University shall constitute a waiver, release, or relinquishment of any of the rights or power herein conferred upon the University.

E. Liquidated Damages

If the Subcontractor neglects, refuses or fails fully 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 time herein fixed for the completion, in the amount of $6,000.00 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 to complete the work within the time specified, and it is further agreed that said amount herein provided 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.

ARTICLE 3 - PRICE AND PAYMENT PROVISIONS

A. Fixed Prices

The University will pay the Subcontractor for the performance of this Subcontract a total fixed Subcontract price of $TBD.

The total fixed price includes a Safety Allowance of $TBD, which will be allocated, by mutual agreement of the University Technical Representative and the Subcontractor, to the workers as a direct incentive to safely perform the work.

This Subcontract price must constitute full payment for the work, materials, services and other items required for performance of this Subcontract, and includes all applicable federal, state, and local taxes, duties and all of the Subcontractor's other obligations related to such work.

Any machinery or equipment purchased hereunder are for resale and are not subject to California sales tax, per the University's California State Resale Permit No. SR-CH 021-835970, with title thereto passing to the U.S. Government per the Government Property clause of the General Provisions prior to its use.

The University of California State Resale Permit No. SR-CH 021-835970 for LBNL is available at: http://procurement.lbl.gov/supplier-forms/.

B. Allocated Funding Limit

1. The funding presently allocated for payment to the Subcontractor under this Subcontract is limited to $***** per the below funding schedule (To be added prior to award). The allocated funding amount will cover the completion of Deliverables *** through ***.

http://procurement.lbl.gov/supplier-forms/

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Deliverable # Task Funding

Amount 1 Mobilization TBD 2 Exterior Site Development at North TBD 3 Exterior Site Development at East TBD 4 Piping to New Mechanical Equipment at

North

TBD

5 New Electrical Switch Station and Transformers

TBD

6 Installation, Testing, Inspection, Commissioning of Mechanical Equipment

TBD

7 Installation, Testing, Inspection, Commissioning of Electrical Equipment

TBD

2. It is anticipated that the University will increase this allocated funding amount up to the total fixed price of this Subcontract as funding becomes available, excluding unexercised options; however, the University shall not be obligated to do so beyond the currently funded amount. The allocated funding amount may only be changed by a written unilateral modification to this Subcontract issued by the University Procurement Representative.

3. The allocated funding amount specified above must 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 authorized to proceed beyond the point where the amount payable by the University (the price of services the allotted funds cover) equals the amount of funds allocated. 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 must notify the University in writing at least five working days prior to stopping work to avoid exceeding the allocated funding amount.

4. If the University provides funding in accordance with the funding schedule, the subcontractor is required to perform and deliver the entire scope of work covered by each line item’s fixed price and the total fixed price of the funded deliverables, regardless of the rate at which the subcontractor progresses, incurs costs, or expects to experience profit or loss.

ARTICLE 4 - OPTIONS

A. The University reserves the right, in its sole discretion, to exercise any or all of the options listed below, under the stated pricing, terms, and conditions of this Subcontract. The exercise of any option may be by issuing a written modification by the University Procurement Representative. The modification may be executed at any point during the term of the Subcontract and/or any revisions or extensions to the term. The Subcontractor will be notified of the University's intent to extend the term by a written notice sent at least thirty

(30) days before the expiration date. However, the preliminary notice may not commit the University to extend the term of this Subcontract. The prices of the option(s) are firm fixed unit prices, and include all costs associated with each option, such as labor, materials, equipment, support functions, management, fees, G&A, and profit.

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B. The option prices listed below are expressed in United States dollars (USD). If exercised, options will be awarded in USD.

Option Title Additive/ Deductive Description Price

Replace VFD of

(E) Chilled Water General Pumps

(CWGP) CWGP-1,

CWGP-2

Additive

Replace/upgrade variable-frequency drive (VFD) of existing CWGP-1 and CWGP-2 pumps

Upgrade motor for Cooling Tower

(CT) CT-1, CT-2,

CT-4

Additive

Replace fan motors on Cooling Tower Fans CT- 1, CT-2 and CT-4 with enclosed units that have functional heaters

Replace VFD of

(E) Tower Water General Pumps

(TWGP) TWGP-1,

TWGP-2

Additive Replace/upgrade VFD of existing TWGP-1 and TWGP-2 pumps

Add first platform extension to accommodate six

(6) total ACHE Fan Array Bays;

add one (1) ACHE fan unit for a total of four (4) ACHE

Additive

Add first platform extension to accommodate six (6) total ACHE Fan Array Bays; add one (1) ACHE fan unit for a total of four

(4) ACHE units.

Architectural screening is scaled with pad extension.

Add second/final platform extension to accommodate nine (9) total ACHE Fan Array Bays; add two (2) ACHE fan units for a total of six (6)

ACHE

Additive

Add second/final platform extension to accommodate nine (9) total ACHE Fan Array Bays; add one (2) ACHE fan units for a total of six

(6) ACHE units.

Architectural screening is scaled with pad extension.

Add electrical switch station A8

(SW-A8)

Additive

Add new electrical switch station SW-A8, duct bank construction, conduits/conductors, connections to 12.47 kV substations in North Electrical Room.

Sample Subcontract Page 7

C. Option Allocated Funding Limit

The options, if exercised will be subject to the same allocated funding provisions set forth in Article 3, Paragraph B, above.

Deliverable

# Task Funding Amount

1 Replace VFD of (E) Chilled Water General Pumps (CWGP) CWGP-1, CWGP-2

TBD

2 Upgrade motor for Cooling Tower (CT)

CT-1, CT-2, CT-4

TBD

3 Replace VFD of (E) Tower Water General Pumps (TWGP) TWGP-1, TWGP-2

TBD

4 Add first platform extension to accommodate six (6) total ACHE Fan Array Bays; add one (1) ACHE fan unit for a total of four (4) ACHE

TBD

5 Add second/final platform extension to accommodate nine (9) total ACHE Fan Array Bays; add two (2) ACHE fan units for a total of six (6) ACHE

TBD

6 Add electrical switch station A8 (SW-A8) TBD D. Payments

1. Progress Payments

The University will make progress payments at the end of each calendar month or as soon thereafter as practicable, or at more frequent intervals, as determined by the University, based on estimates of the progress of the work prepared by the Subcontractor and approved by the University.

The Subcontractor must email a completed Application for Payment for the period directly to the LBNL Accounts Payable Office at APInvoice@lbl.gov, with copies to EMastronardi@lbl.gov and DTopete@lbl.gov. The "subject" line of the email must state the Subcontractor's name and the Subcontract number.

If requested, the Subcontractor must also submit receipts or other vouchers showing its payments for material and labor to its subcontractors. The Application for Payment must include all information required by the form. The Subcontractor's estimates must be reasonable and exclude all amounts for materials to which the 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 done. 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.

mailto:APInvoice@lbl.gov mailto:DTopete@lbl.gov

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2. Certification for Progress Payments Along with each request for a progress payment the Subcontractor must 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;

Payments to lower-tier subcontractors and suppliers 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 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."

3. Progress Payment Terms Payment terms for progress payments shall be Net 30 days, or 15 days if the Subcontractor is a small business. For inquiries about the status of a progress payment, call (510) 486- 6954 or email aphelp@lbl.gov.

4. Retention In making such progress payments, 10 percent thereof may be retained until final completion and acceptance of all 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 authorized deductions.

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.

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

ii. 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.

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

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 mailto:vendordesk@lbl.gov

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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 U.S. Government All materials and work covered by progress payments must thereupon become the property of the U.S. Government, but this provision must 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 U.S. Government to require the fulfillment of all of the terms of the Subcontract. The Subcontractor must take whatever action is necessary to protect and establish said U.S. 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 the Notice of Completion for the work under this Subcontract.

For inquiries about the status of the final payment, call (510) 486-6954 or aphelp@lbl.gov.

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 the Notice of Completion for the work;

c. Presentation of a properly executed voucher; and

d. Presentation of a completed Assignment and Release for the total fixed price of this

Subcontract, signed by the Subcontractor and any assignees, using the form incorporated as a part of this Subcontract.

ARTICLE 5 - 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. Certain changes to this subcontract may be made only by the University Procurement Representative without subcontractor agreement or negotiation prior to the change. Such changes may include: changes of an administrative nature, directed changes pursuant to the clause incorporated herein entitled: "CHANGES," unilateral modifications authorized by clauses other than the Changes clause, and termination notices. Apart from the University Procurement Representative's authority to issue unilateral changes, the parties may mutually agree to make changes in the work ordered, or modify any other term or condition of the subcontract, resulting in an amendment to the subcontract, but only by a writing signed by the authorized representatives of both parties.

mailto:vendordesk@lbl.gov

Sample Subcontract Page 10

The Subcontractor must 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 76-225 Berkeley, CA 94720

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

B. University Technical Representative David Topete is the University Technical Representative for this Subcontract (also called Project Manager). 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.

In instances where the University Technical Representative listed above is out of the office for an extended period of time or is otherwise unavailable, and an immediate need arises, you may contact TBD, the second University Technical Representative.

The University Technical Representative may also authorize changes or additional work by means of a Field Order with a value of $25,000 or less. If the cost will exceed this amount, changes or additional work can only be authorized by the University Procurement Representative by a Subcontract Modification.

C. Closeout The Subcontractor must, as a condition of full payment, assist the University in accomplishing the administrative closeout of this Subcontract after the completion of performance, including, as necessary or required, the furnishing of documentation and reports, the disposition of property, the disclosure of any inventions, the execution of any required documents, the performance of any audits, and the settlement of any interim or disallowed costs.

ARTICLE 6 - SAFETY-RELATED REQUIREMENTS

A. Notice to Proceed Work may not commence at the worksite until the Subcontractor submits and the University accepts a Site-Specific Safety Plan, IIPP, and Job Hazards Analysis(es) (JHAs), as required by the LBNL EH&S Construction Safety Group, and the University Procurement Representative issues a written Notice to Proceed. The Subcontractor may proceed with all other work authorized or required by the Subcontract in preparation for performance at the worksite.

B. General The Subcontractor must comply with DOE Acquisition Regulation 970.5223-1, Integration of Environment, Safety, and Health into Work Planning and Execution, and all environment, health, and safety requirements, training, and associated safety documents referenced, attached, or incorporated to this Subcontract, including any incorporated safety related documents submitted by the Subcontractor and reviewed and accepted by the University. The Subcontractor must also

Sample Subcontract Page 11 comply with, and assist the University and the DOE in complying with the environment, health, and safety requirements identified in, or applicable to, this Subcontract.

C. Safety Standards and Testing; Electrical Device Certification Requirement The materials, equipment, tools, and supplies furnished or used by the Subcontractor must meet nationally recognized safety standards or have been tested and found safe for use by the University in a manner specified by the Subcontractor. All electrical equipment, components and conductors and other items of the type requiring testing by a Nationally Recognized Testing Laboratory (NRTL) recognized by the Occupational Safety and Health Administration (OSHA), must be NRTL listed, labeled, or tested, in accordance with Title 29, Part 1910, General Industry Standards, of the Code of Federal Regulations (29 CFR 1910). The Subcontractor must notify the University Procurement Representative and the University Technical Representative, in writing, of any materials, equipment, tools, or supplies to be furnished or used that do not meet these requirements. The University reserves the right to reject any such items. Information on required NRTL testing is available at http://www.osha.gov/dts/otpca/nrtl/.

D. Worker Safety and Health Requirements The Subcontractor and its lower-tier subcontractors performing work at an LBNL worksite are subject to the DOE Worker Safety and Health Program regulation of Title 10, Part 851 of the U.S.

Code of Federal Regulations (10 CFR 851), as amended by the variance to 10 CFR part 851, Worker Safety and Health Program, approved by DOE in August of 2019. The approved variance allows the Subcontractor and lower tier subcontractors to follow applicable California Department of Labor Codes such as California Occupational Safety and Health Administration's (Cal-OSHA) safety and health regulations in Title 8, including an IIPP, in lieu of specified provisions in 10 CFR part 851, Subparts B and C, and Appendix A. The Department of Energy retains enforcement authority per 10 CFR part 851, subpart A.

The Subcontractor must also perform the work in compliance with the LBNL Health and Safety Manual, available at https://ehs.lbl.gov/resource/documents/esh-manual-pub-3000/, which implements the requirements of 10 CFR 851, as well as their Cal-OSHA mandated Injury and Illness Prevention Plan (IIPP) or equivalent and all other LBNL safety procedures and policies communicated to the Subcontractor.

As part of this requirement, the Subcontractor and its lower-tier subcontractors must inform their workers of their rights and responsibilities by appropriate means, including posting the DOE-designated 10 CFR 851 It's the Law Worker Protection Poster at its LBNL workplace where it is accessible to all workers.

The Subcontractor must ensure that workers requiring unescorted/unbadged access to an LBNL site complete the on-line General Employee Radiation Training (GERT), available at:

https://training.lbl.gov/ehs/training/webcourses/EHS0470/story_html5.html.

E. Experience Modification Rate (EMR) Requirements The Subcontractor and the Subcontractor's lower tier subcontractors that the Subcontractor hires during the performance of this Subcontract should have a Workers' Compensation Experience Modification Rate (EMR) of 1.0 or less for the past three years from the date of this Subcontract.

The Subcontractor is required to provide to the University Procurement Representative, and the University Technical Representative, information regarding the Subcontractor's own and all of the Subcontractor's lower tier subcontractor's safety records. The records include a communication http://www.osha.gov/dts/otpca/nrtl/ https://training.lbl.gov/ehs/training/webcourses/EHS0470/story_html5.html

Sample Subcontract Page 12 from its Workers' Compensation insurance carrier(s) identifying the EMR for the Subcontractor and each lower tier subcontractor's EMR for the past three years preceding the effective date of this Subcontract. The EMR information may be either state(s) or interstate information, but must be appropriate for the business unit(s) that will perform the work. The Subcontractor must not hire, or use the services of any lower tier subcontractor that has EMRs higher than 1.0 without prior written approval from the University Procurement Representative.

F. Subcontractor Response to Incidents The Subcontractor must respond to incidents in accordance with the LBNL Health and Safety Manual. The Subcontractor must notify the University Technical Representative and/or Requester within one hour of the occurrence of an incident including initial basic information on the known facts including: location, time of occurrence, initial incident description facts, and Subcontractor Point of Contact (name, number). The Subcontractor must provide follow-up information in a timely manner as requested by LBNL.

The Subcontractor and lower-tier subcontractor personnel must be made available to participate in timely LBNL incident review, fact finding, incident investigation, cause analysis, and corrective action development. Participation may include (but is not limited to) on-site or remote interviews subsequent to an incident.

ARTICLE 7 - ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS

A. Definition. As used in this Article -- United States or its outlying areas means:

1. The fifty States;

2. The District of Columbia;

3. The commonwealths of Puerto Rico and the Northern Mariana Islands;

4. The territories of American Samoa, Guam, and the United States Virgin Islands; and

5. The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

B. In accordance with FAR 52.223-99 ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (OCT 2021) (DEVIATION), this clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).

C. The Subcontractor must comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this Subcontract, for Subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.

D. The Subcontractor must include the substance of this Article, including this paragraph, in subcontracts at any tier that exceed the simplified acquisition threshold, as defined in FAR 2.101 on the date of lower-tier subcontract award and are for services, including construction, performed in whole or in part within the United States or its outlying areas.

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E. Enforcement of this FAR clause is currently enjoined by a federal court. Therefore, compliance with this clause is not currently required. However, should the federal injunction be lifted in the future, this clause will be applicable, and prompt compliance will be required.

ARTICLE 8 - NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE

EQUAL EMPLOYMENT OPPORTUNITY

A. The Subcontractor's attention is called to the Equal Opportunity and Affirmative Action

Compliance Requirements for Construction clauses of the General Provisions.

B. The goals for minority and female participation, expressed in percentage terms for the

Subcontractor's aggregate work force in each trade on all construction work in the covered area, are as follows.

Goal for Minority Participation for each trade

Goal for Female Participation for each trade

25.6% Alameda County 6.9% Alameda County

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

C. The Subcontractor's compliance with Executive Order 11246, as amended, and the regulations in 41 CFR Part 60-4 must be based on (1) its implementation of the Equal Opportunity clause, (2) specific affirmative action obligations required by the Affirmative Action Compliance Requirements for Construction clause, and (3) its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the Subcontract, and in each trade. The Subcontractor must make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the Subcontractor's goals must be a violation of this Subcontract, Executive Order 11246, as amended, and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed.

D. The Subcontractor must provide written notification to the Deputy Assistant Secretary for Federal

Contract Compliance, U.S. Department of Labor, within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under this Subcontract. The notification must list the name, address, and telephone number of the subcontractor, employer's identification number of the subcontractor, estimated dollar amount of the subcontract, estimated starting and completion dates of the subcontract, and the geographical area in which the subcontract will be performed.

F. As used in this clause, the "covered area" is that county in which the work will be performed.

Sample Subcontract Page 14

ARTICLE 9 - CHANGES TO THE WORK

A. Pursuant to the Changes clause of the General Provisions, the University may direct changes to the work, including the performance of extra work within the general scope of this Subcontract.

The University will direct changes through written change orders. Unless the change order expressly identifies the change as "extra work", the directed change must be performed by the Subcontractor at no additional cost, subject to the Subcontractor's right to request an equitable adjustment through a timely and properly submitted change order proposal.

B. Change order proposals must be submitted in writing to the University Procurement and Technical

Representatives. Change order proposals will be considered only if submitted within 30 days after the Subcontractor receives the written change order or notifies the University Procurement and Technical Representatives, in writing that it considers any direction, instruction, interpretation, determination, or other order by the University to be a change within the general scope of the Subcontract for which it is entitled to an equitable adjustment. The University Procurement Representative may grant an extension of this time period if the change involved a lower tier subcontractor and an extension is requested within the 30-day time period.

C. See the Change Order Adjustment and Change Order Procedure clauses of the General Provisions for allowable markups and related requirements. Change order proposals requesting an adjustment to the Subcontract price must comprise a complete cost proposal, or a partial cost proposal and a declaration of the required information not then known to the Subcontractor. If the Subcontractor submits a partial cost proposal, the Subcontractor must submit a complete cost proposal within the 30-day period or extension thereof described in paragraph B, above.

D. The direct costs for change order work must consist of those for labor (including payroll taxes and other fringe benefits), materials, supplies, sales taxes, applicable insurance, transportation of materials, and any related bond costs incurred in the direct performance of the work. The direct costs must not include any of the following: labor costs for superintendents, assistant superintendents, project engineers, project managers, schedulers, estimators or drafting; small tools; office expenses including staff, materials and supplies; on-site or off-site trailer and storage rental and expenses; utilities; data processing personnel and equipment; Federal, state or local business income and franchise taxes. Markup for indirect costs and profit are limited as described in the Change Order Adjustments clause in the incorporated General Provisions.

E. Change orders will be converted into subcontract modifications, representing the complete and final resolution of all issues related to the change orders. The Subcontractor agrees to keep adequate documentation to permit the full and complete resolution of all change order issues.

ARTICLE 10 - COMPLETION OF CONSTRUCTION

A. Substantial Completion

1. Substantial completion means the stage in the progress of the construction work, as determined by the University Technical Representative, when the work is complete and in accordance with the terms of the Subcontract except only for completion of minor items which do not impair the University's ability to occupy and fully utilize the building for its intended purpose.

2. Upon notification by the Subcontractor that the construction work is substantially complete the University Technical Representative or designee will inspect the work and provide the Subcontractor with a comprehensive list of items to be completed or corrected before

Sample Subcontract Page 15 establishing substantial completion. Subcontractor must proceed promptly to complete and correct items on the list. The University Technical Representative or designee will then re-inspect the work to determine whether all items have been completed and corrected. Failure to include any item on the list does not alter the Subcontractor's responsibility to complete all work in accordance with the Subcontract.

3. When the University Technical Representative determines that the work is substantially complete, and following any necessary inspection by other University officials to determine that the building is safe for occupancy, the Technical Representative will notify the Subcontractor in writing that the Construction Work is substantially complete. The notification will establish the date of substantial completion and the responsibilities of the University and the Subcontractor for security, maintenance, utilities, insurance and damage to the construction work.

B. Beneficial Occupancy

The University reserves the right to occupy or otherwise make use of any part of the construction work at any time prior to substantial completion or final completion, herein referred to as "Beneficial Occupancy," upon 10 days written notice to the Subcontractor. Such beneficial occupancy must be at no additional costs to the University, except as provided in this Article, and must be subject to the following conditions:

1. The University Technical Representative or designee will inspect the portion of the work to be beneficially occupied and prepare a list of items to be completed or corrected prior to final completion. The Technical Representative will notify the Subcontractor in writing of the University's intent to beneficially occupy a portion of the Work.

2. Beneficial occupancy must not be construed by Subcontractor as an acceptance by the University of that portion of the construction work that is to be occupied, and must not constitute a waiver of existing claims of either the University or the Subcontractor against each other.

3. Subcontractor must provide as required, in the areas beneficially occupied, utility services, heating, and cooling for systems which are in operable condition at the time of beneficial occupancy. All responsibility for the operation and maintenance of equipment must remain with Subcontractor while the equipment is so operated.

4. The University will pay all normal operating and maintenance costs resulting from its use of equipment in areas beneficially occupied and all utility costs which arise out of the beneficial occupancy, and will use its best efforts to prevent its beneficial occupancy from interfering with the conduct of Subcontractor's remaining work.

5. The Warranty period, as described in the Warranty of Construction Clause (FAR 52.246-21) of the General Provisions will commence upon the first date of actual occupancy or use of the portions of the construction work actually occupied and equipment or systems fully utilized. Equipment or systems must not be considered fully utilized until all parts of the construction work served by the equipment or systems are actually occupied and used.

6. The Subcontractor shall not be responsible for providing security in areas beneficially occupied or required to repair damage caused by the University in its beneficial

Sample Subcontract Page 16 occupancy, but must continue to maintain all insurance required by this Subcontract in full force and effect during the University's beneficial occupancy.

C. Final Completion

1. Upon receipt of notice from Subcontractor that the construction work is ready for final inspection, the University Technical Representative or designee will make such inspection. Final completion must be when the University Technical Representative determines that the construction work is fully complete and in accordance with the Subcontract, including without limitation satisfaction of all "punch list" items.

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

a. The final Application for Payment and all required submittals.

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

ARTICLE 11 - INSURANCE

A. University Requirements.

1. Types of Coverage.

The Subcontractor must at its expense obtain, keep in force, and maintain insurance to cover its performance under this Subcontract of the types and in the amounts set forth below. Such insurance must be maintained in full force and effect during the performance of the Services required by this Subcontract. The stipulation of required coverage and limits of insurance must not in any way limit the liability of the Subcontractor.

a. Commercial General Liability Insurance Minimum Limit

● Per Occurrence $ 7,000,000

● Products/Completed Operations Aggregate $ 9,000,000

● Personal and Advertising Injury $ 7,000,000

● General Aggregate $ 9,000,000

b. Business Automobile Liability Insurance Minimum Limit

● Per Occurrence $ 10,000,000

The automobile liability insurance must cover liability to third parties related to the Subcontractor's use of any autos, including the Subcontractor's use of, any resulting loss or destruction of, or damage to, any University-furnished U.S. Government owned vehicles.

c. Workers' Compensation As required under California or other applicable State law for any work not performed in California, and Employer's Liability Insurance with a minimum limit of $1,000,000 per accident and employee.

d. Builders All Risk Insurance

This insurance must be provided as required by the General Provisions, under Clause 7, and must be revised as necessary due to subsequent changes to the work in order to maintain the insurance for the full value of the work in progress and all materials and supplies.

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i. Coverage Requirements

The Subcontractor must, at its own expense, provide and maintain builders all-risk insurance, insuring the full value of all work performed and materials supplied under this Subcontract against all risks of physical loss or damage until final completion and University's acceptance of all the work, including but not limited to earthquake, flood or fire and associated perils, vandalism and malicious mischief, and other causes. The University must be named as the Loss Payee.

ii. University May Insure for Subcontractor In case of the breach of any provision of this clause, the University may, at its option, take out and maintain such builders all-risk insurance in the name of the Subcontractor or any subcontractor, as the University may deem appropriate, and may deduct the cost of obtaining and maintaining such insurance from any sums which may be found or become due the Subcontractor under this Subcontract.

2. Insurance Certificate Requirements

a. Waiver of Subrogation Endorsement

The general and auto liability insurance must include a waiver of subrogation in favor of the University and the U.S. Government. Statements on the certificate will not suffice. Submit a copy of the policy with the blanket coverage, or provide an endorsement to the policy providing the required coverage, or an endorsement that provides a waiver of subrogation where required by contract or agreement.

b. Additional Insured Endorsement

The general and auto liability insurance must provide additional insured coverage. Submit a copy of the policy with the blanket coverage, or provide an endorsement to the policy that designates "The Regents of the University of California and the U.S. Government" as additional insureds, or an endorsement that designates additional insured coverage where required by contract or agreement. An endorsement naming additional insureds, as shown above, is required for umbrella policies when the underlying liability policies do not meet the stated requirements listed above.

However, if the umbrella policy expressly states it is "follow form" of the underlying policies, an additional insured endorsement for the umbrella policy is not required if the certificate states the umbrella policy is follow form. Statements on the certificate will not suffice. Submit a copy of the policy with the blanket coverage, or provide an endorsement to the policy providing the required coverage.

c. Completed Operations Endorsements The general liability insurance, by a valid endorsement, must include an endorsement for both ongoing operations and an endorsement for completed operations.

d. Primary and Noncontributory Endorsement

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The general liability insurance coverage, must be primary and noncontributory and must not participate with or be in excess over any other valid collectible insurance or program of self-insurance of the University or the U.S. Government. Statements on the certificate will not suffice.

Submit a copy of the policy with the blanket coverage, or provide an endorsement to the policy providing the required coverage, or an endorsement that states that the subcontractor's insurance will be primary where required by contract or agreement.

e. Cancellation and Material Changes The policies evidencing required insurance must contain an statement or endorsement, or a statement on the certificate to the effect that any cancellation or any material change adversely affecting the University or U.S. Government's interest must not be effective (1) for such period as the laws of the State in which his Subcontract is to be performed prescribe, or (2) until 30 days after the insurer or the Subcontractor gives written notice to the University, whichever period is longer.

f. Certificate Holder The Certificate Holder must be listed as follows.

The Regents of the University of California and the U.S Government Lawrence Berkeley National Laboratory One Cyclotron Road Berkeley, CA 94720

g. Rating The required insurance must be obtained from insurance companies authorized to do business in California that have an A.M. Best rating of A: VII or better, or an equivalent Standard & Poor's rating of AA or better or Moody's rating of Aa or better; or that are acceptable to the University.

h. Deductible The certificate must state the deductible for the General Liability and Automobile Liability policies.

i. Builder's Risk Deductible

If Builders Risk Insurance is required, deductibles must not exceed 5% of the insurable value. In the event of an insured loss or damage, the Subcontractor agrees to pay to the University, upon demand, an amount equal to the deductible amount.

j. Self-Insurance Retention/Deductible The insurance must not be subject to a self-insurance retention (SIR) or deductible of $250,000 or more without the written…