2012-09-28_SP0600-10-R-0809_Amendment_0003.pdf

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

1. CONTRACT ID CODE

K

2. AMENDMENT/MODIFICATION NO.

3. EFFECTIVE DATE

See Block 16c

4. REQUISITION/PURCHASE REQ. NO.

5. PROJECT NO. (If applicable)

6. ISSUED BY CODE

DEFENSE LOGISTICS AGENCY ENERGY

SP0600 7. ADMINISTERED BY (If other than Item 6)

CODE

8725 JOHN J. KINGMAN ROAD, SUITE 3830

FT. BELVOIR, VA 22060-6222

OFFICER/SYMBOL: ANDREW URBEN/DLA ENERGY-FEEBB

PHONE: (703) 767-5182

FAX: (703) 767-2382 Email: andrew.urben@dla.mil P.P. 8.2

8. NAME AND ADDRESS OF CONTRACTOR (NO., street,city,county,State,and ZIP Code)

X

9a. AMENDMENT OF SOLICITATION NO.

SP0600-10-R-0809

9b. DATED (SEE ITEM 11) 4 March 2010

10a. MODIFICATION OF ONTRACT/ORDER NO.

10b. DATED (SEE ITEM 13)

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

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

Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods: (a) By completing Items 8 and 15, and returning __1__ copies of the amendment;(b) By acknowledging receipt of this amendment on each copy of the offer submitted; or(c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (If required)

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

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

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

CONTRACT ORDER NO. IN ITEM 10A. I2.05 CHANGES-FIXED PRICE (AUG 87)

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

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF: FAR 43.01 OTHER (Specify type of modification and authority)

E. IMPORTANT: Contractor [ ] is not, [ x ] is required to sign this document and return ____1__ copies to the issuing office.

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

See following pages.

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

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

16A. NAME OF CONTRACTING OFFICER

JOSE JIMENEZ

15B. NAME OF CONTRACTOR/OFFEROR

BY

(Signature of person authorized to sign)

15C.DATE

SIGNED

16B. UNITED STATES OF AMERICA

BY

(Signature of Contracting Officer)

16C.DATE SIGNED

September 28, 2012

NSN 7540-01-152-8070 30-105 STANDARD FORM 30 (REV. 10-83)

PREVIOUS EDITION UNUSABLE Prescribed by GSA

FAR (48 CFR) 53.243

mailto:andrew.urben@dla.mil

SP0600-10-R-0809 Amendment 0003 PAGE 2 OF 58

VANDENBERG, AFB

A. The purpose of this amendment is to incorporate the following changes into subject solicitation:

1. The requirement for privatization of the electric distribution system at Vandenberg AFB is withdrawn, and all references to the electric distribution system in Solicitation SP0600-10- R-0809 are removed.

2. Section B.2.3.1 is deleted in its entirety and replaced with the following:

The Government will only acquire utility services if the Armed Service responsible for the installation issues a decision to covey the utility system(s). The Service’s decision whether to convey will be made in accordance with 10 U.S.C. § 2688 and applicable Department of Defense-issued guidance. Award will only be made, if at all, by the duly authorized execution of the utility services contract which is contingent upon the actual conveyance of the system. If for any reason conveyance does not occur, the Government’s termination liability will be limited to transition costs.

3. Section B.2.3.2 is deleted in its entirety and replaced with the following:

The sale of the utility system(s) is not governed by the FAR, the Federal Property and Administrative Services Act of 1949, or any of their implementing regulations. The Government may choose to adopt and adapt for use in the sale the processes and methods typically utilized in those laws and regulations but, by doing so, are not thereby subjecting the sale to those laws and regulations. The purchase of utility service(s) is an acquisition and will be governed by the FAR and its applicable supplements.

4. Section B.2.3.3 is deleted in its entirety and replaced with the following:

If the offeror is awarded multiple systems, then a single contract will be awarded for the systems. Therefore, the number of awards may be less than the number of systems listed in the solicitation.

The Government reserves the right to make no award to any Offeror. If it does make award, the Government does not guarantee renewal of the utility services contract at the end of the contract period.

5. Section B.6.1.1 “Economic Price Adjustment – Price Index Utility Privatization (INT

B.19.40 OCT 2003) has been deleted in its entirety and replaced with the following:

B.6.1.1 ECONOMIC PRICE ADJUSTMENT – PRICE INDEX UTILITY SERVICES (DLA

ENERGY JAN 2012)

(a) The Contractor warrants that the contract prices do not include any amounts to protect against increases covered by this contract clause.

(b) DEFINITIONS. As used herein,—

(1) Base price means the price for the Monthly Utility Services Charge as identified in the contract Schedule. For the first Economic Price Adjustment, the Base price shall be the original awarded

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Monthly Utility Services Charge. For subsequent annual Economic Price Adjustments, the Base Price for each Adjustment shall be the Monthly Utility Services Charge in effect immediately prior to that adjustment.

(2) Index means the Consumer Price Index for all Urban Consumers (CPI-U) reported in the publication, “Consumer Price Index – CPI,” as published by the Bureau of Labor Statistics (BLS), U.S.

Department of Labor for West urban; CUUR0400SA0, CUUS0400SA0 (CONSUMER PRICE INDEX – ALL

URBAN CONSUMERS; ALL ITEMS; NOT SEASONALLY ADJUSTED).

(3) Base index is a twelve month average of the CPI-U for West urban; CUUR0400SA0, CUUS0400SA0 (CONSUMER PRICE INDEX – ALL URBAN CONSUMERS; ALL ITEMS; NOT

SEASONALLY ADJUSTED), rounded to four decimal places, as follows:

(i) For the first Economic Price Adjustment, the Base Index will be the average of the twelve (12) most recent published monthly indices available at time of Final Proposal Revision (FPR).

(ii) For subsequent annual Economic Price Adjustments, the Base Index shall be the “Current Price Index” utilized in calculating the immediately preceding Economic Price Adjustment.

(4) Current index is a twelve month average of the CPI-U for West urban; CUUR0400SA0, CUUS0400SA0 (CONSUMER PRICE INDEX – ALL URBAN CONSUMERS; ALL ITEMS; NOT

SEASONALLY ADJUSTED), rounded to four decimal places, using the twelve (12) most recent published monthly indices available at time of the adjustment, with adjustments effective on the anniversary of the Contract Start Date.

(5) Adjustment amount shall be the product of the rate of change from the base index to the current index, multiplied by 100 percent of the base price.

(6) Adjusted price means the sum, rounded to two decimal places, of the base price plus the instant adjustment amount.

(c) It is hereby agreed that—

(1) The prices payable under this contract shall be subject to a prospective annual adjustment beginning on the first anniversary of the contract start date, which will be accomplished promptly following publication of the applicable index.

(2) Adjustments to the base price shall be determined by the percentage of change from the base index, as stated in paragraph (b)(3) of this contract clause, to the current index, as defined in paragraph (b)(4) of this contract clause. Adjustments to the base price shall not be compounded.

(3) Adjustment calculations under this contract clause are exemplified below.

Assume:

Index Northeast urban; CUUS0100SA0, CUUR0100SA0

(CONSUMER PRICE INDEX – ALL URBAN

CONSUMERS; ALL ITEMS; NOT SEASONALLY

ADJUSTED)

Final Proposal Revision due date August 31, 2010 Contract Start Date July 1, 2011 Base Price $10,000 per month Current Index 243.4495* Base Index 232.4904**

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* The Current Index was computed as follows:

2011 2012 JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR APR MAY Average

241.69 242.282 243.033 243.323 243.014 242.652 241.987 242.879 243.85 245.125 245.85 245.709 243.4495

Note the indices for June and July 2012 were not used in the computation of the current index. That is because indices are usually released 2 and 3 weeks into the following month. In this example, the adjustment is being performed on July 1, 20012, one year after the Contract Start Date. On that date, the June and July indices were not available. Those indices were published by the Bureau of Labor Statistics between the 2nd and 3rd week of July, for the month of June, and between the 2nd and 3rd week of August, for the month of July.

** The Base Index was computed as follows:

2009 2010

AUG SEP OCT NOV DEC JAN FEB MAR APR MAY JUN JUL Average

230.883 231.2 231.304 231.708 231.462 232.294 232.382 233.188 233.615 234.13 233.834 233.885 232.4904

Note the index for August 2010 was not used in the computation of the Base Index. Although this index is available at the moment of the adjustment, it was not available at the moment Final Proposal Revisions were submitted because indices are released 2 and 3 weeks into the following month. Please remember that for the first Economic Price Adjustment, the base index will be the average of the twelve (12) most recent published monthly indices available at time of Final Proposal Revisions (FPR).

Calculate rate of change, rounded to four decimal places, ((current index – base index) ÷ base index):

((243.4495 – 232.4904) ÷ 232.4904) = .0471 or 4.71%

Calculate the adjustment amount (rate of change x base price):

(.0471 × $10,000) = $471.00

Calculate the adjusted price (base price plus adjustment amount):

($10,000 + $471.00) = $10,471.00 per month

(d) The Contracting Officer shall obtain the current Price Index and calculate the adjusted price.

(e) Adjustments pursuant to this contract clause shall be made by contract modification showing the calculation of the adjusted contract unit price and specifying its effective date.

(f) No adjustments shall be made unless the total change in the contract amount for the Monthly Utility Services Charge exceeds $500.00.

(g) Notwithstanding any other conditions of this contract clause, no increase(s) in a contract unit price applicable to any annual period of contract performance shall cumulatively exceed the base price for such item by more than 10.00% (ten percent) of the base price for such item. There shall be no percentage limit on downward adjustments under this contract clause.

(h) In the event--

(1) Any applicable index is discontinued or its method of derivation is altered substantially; or

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(2) The Contracting Officer determines that an index consistently and substantially fails to reflect market conditions --the parties shall agree upon an appropriate substitute index and the Contracting Officer shall modify the contract to specify use of such substitute index for determining price adjustments hereunder. The contract shall be modified to reflect such substitute index, effective on the date the index specified in the contract begins to consistently and substantially fail to reflect market conditions. Failure to agree on an appropriate substitute or adjustment shall constitute a dispute under the DISPUTES clause of this contract.

(i) The Contractor shall include a statement on the final invoice that amounts invoiced under this contract reflect all applicable decreases required by the contract clause.

6. Section C “Description/Specifications/Work Statement” is deleted in its entirety and replaced with the following:

Description/Specifications/Work Statement C.1 Precedence In accordance with FAR 52.215-8, any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order: (a) The Schedule (excluding the specifications); (b) Representations and other instructions; (c) Contract clauses appearing in the solicitation or contract; (d) Contract clauses incorporated by reference; (e) Other documents, exhibits, and attachments; and (f) the specifications. Additionally, the terms and conditions of Sections A through K, including the Section J attachments, shall take precedence over any inconsistent provisions contained within portions of the Contractor’s proposal incorporated in or made exhibits to the Contract. Exceptions not specifically identified by the Contractor in its proposal in accordance with the requirements of Section L of the solicitation and expressly accepted by the Contracting Officer in writing shall not be deemed to be part of the Contract and shall not be binding on the Government.

C.2 Authority, Scope, and Purpose

C.2.1 General The Government is conveying the utility system(s) identified in this solicitation. Subsequent to the conveyance of the utility system(s), the Government will acquire the corresponding utility service(s) from the Contractor as the new owner of the system(s). The Government is requesting proposals for the purchase of the utility system(s) listed in Section B.1, the conveyance of the infrastructure, and the acquisition of the identified utility service(s). The conveyance of the utility system(s) and the acquisition of utility service(s) are both subject to the terms and conditions of this solicitation. The Government will consider the purchase of commodities with the privatization offer(s) on a case-by-case basis.

C.2.2 Authority Utilities privatization consists of two transactions: 1) the conveyance of the utility infrastructure via a Bill of Sale; and 2) the acquisition of utility services on the privatized system(s) via a utility services contract. The conveyance of the utility system(s) is a property disposal action, in accordance with 10 U.S.C. §2688, and is not covered under the FAR. The acquisition of utility services is a FAR Part 41 acquisition. The purchase of utility services is an acquisition and will be governed by the FAR and its applicable supplements.

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C.2.3 Scope The Government seeks a Contractor to assume ownership of the utility system(s) and infrastructure specified in Section B.1, Systems to be Privatized, (the “system(s)” or “utility system(s)”), and as the new owner, to operate and maintain the systems and provide utility services to the Government. Assumption of ownership and provision of utility services shall be performed in accordance with all terms, conditions, and special contract requirements, specifications, attachments, exhibits, and drawings contained in this solicitation or incorporated by reference.

Offerors are not required to offer on all of the utility systems specified in the Schedule unless otherwise specified in the Section J Attachments. Offers may be submitted on individual system(s) or on groups of systems on an all or none basis. However, for grouped proposals, the Government reserves the right to consider any efficiencies and/or cost savings that may be achieved by awarding multiple systems to a single offeror. For all offers, whether grouped or not, the offeror shall provide a separate price schedule for each utility system. Offers on grouped systems that do not include a separate price schedule for each utility system will not be considered for award. For purposes of the economic comparison required by 10 U.S.C. §2688, each system will be evaluated separately. Offerors are advised that if any individual system within a grouped offer does not satisfy the economic criteria for award that grouped offer will not be considered for award.

C.2.4 Program Goal The desired goal of the conveyance is to transfer all rights, title, and interest of the Government in and to the utility system(s) listed in the Schedule. Consequently, the Government will retain no reversionary interests in the utility system(s) sold, other than the terms regarding the repurchase option and rights of access. The transfer of title will be accomplished after contract award and full transfer is the intended and preferred consequence. The utility system(s) being sold includes equipment, fixtures, structures, and other improvements utilized in connection with the utility system(s), which will be more specifically described in the Bill of Sale. The divestiture will not include the real property upon, under, or around the utility system(s). The sale will be documented by a Bill of Sale, see sample at Reference JR1 to this RFP. In addition to the sale of the utility system identified in the Bill of Sale, the Government will also acquire utility services from the transferee.

C.2.5 Utility Systems Attachments are included in Section J for the utility system(s) listed in Section B.1 and are herein referred to as “utility-specific attachments.” Each utility-specific attachment provides details specific to each Installation utility system and requirement. Upon contract award(s), the appropriate attachments will be included in the contract and the others will be removed.

C.2.5.1 The property being sold in this action will be as described in the utility-specific attachments of the solicitation. The system will be sold in an “as is, where is” condition without any warranties, representations, or obligation on the part of the Government to make any alterations, repairs, or improvements. Any proposal that offers an alternative description of the property being sold may be deemed technically unacceptable.

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C.3 Requirement

C.3.1 Utility Services Requirement Subject to the terms and conditions in this RFP, the Contractor (a.k.a. “System Owner”) shall furnish all necessary labor, management, supervision, permits, licenses, certifications, equipment, supplies, materials, transportation, and any other incidental items or services required for the complete ownership of and provision of utility services via these utility systems, including operation, maintenance, repair, upgrade, and improvement of the systems.

The Contractor shall provide reliable and dependable utility services to each Government or tenant connection within the service area (see Section C, Service Area) 24 hours each and every day. The Contractor shall be responsible for providing capital investments and all other resources required to own, maintain, and operate its utility system(s) in a safe and reliable condition, and to meet all the requirements listed herein.

Access to the utility system(s) will be as specified in Section C, Access to the Utility System.

C.3.2 Performance Standards The Contractor shall ensure adequate and dependable utility service(s) to all facilities and equipment served. Unless otherwise provided for in this contract, the Contractor shall provide utility service(s) in accordance with industry-standard construction, operations, maintenance, management, environmental, safety, and other relevant standards, that apply to similarly situated utility services providers serving customers whose service characteristics are comparable to the service characteristics of the Installation. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, and unusually severe weather. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

Services provided shall comply with all applicable Federal, state, and local laws/regulations and any Installation specific requirements set forth in the utility-specific attachments, as they may be amended from time to time, including those requirements relating to health, safety, and the environment. The Contractor shall modify its service practice as necessary to accomplish such compliance.

If a change in the service requirement necessitated by compliance with later imposed/modified laws and regulations or Installation requirements constitutes reasonable cause for an adjustment to the service charge, the charge will be adjusted in accordance with FAR 52.243-1, Changes -Fixed-Price-Alt 1 or FAR 52.241-7 Changes in Rates or Terms and Conditions of Service for Regulated Services as applicable.

C.3.3 Sub-Metering The Contractor shall be responsible for reading, maintaining, and calibrating all sub-meters on the privatized utility system(s), as identified in the utility-specific attachments. The Government

SP0600-10-R-0809 Amendment 0003 PAGE 8 OF 58 will use sub-meters for internal installation billing purposes, commodity management, and energy conservation purposes. Meter reading reports shall be submitted to the recipient identified in the utility-specific attachments.

All costs for providing, installing, reading, reporting, and maintaining the existing and additional meters shall be the responsibility of the Contractor.

C.3.3.1 Future Sub-Meters The Contractor shall provide, install, read, maintain, and calibrate sub-meters requested by the Government for any purpose throughout the contract period. Installation of and responsibility for future sub-meters (not on the system at the time of sale or identified for installation as part of the contract) may constitute reasonable cause for an initial installation charge and a utility service charge adjustment in accordance with Section G.

C.3.4 Energy and/or Water Efficiencies and Conservation and Renewable Energy Generation The Contractor shall strive to provide energy and/or water efficient systems. In addition, the Contractor will facilitate interconnection of new or existing renewable energy generation assets that are located on the installation, whether the Government or a third party is the owner/operator of any such generation assets. The Government has an established program for conducting and implementing energy and/or water savings, conservation projects, and renewable energy generation projects to reduce utility usage, costs, and to obtain other benefits including mandated levels of renewable energy usage and reduction of emissions. Some of these have resulted in the Government entering into long-term financing arrangements with non-Government entities. The utility-specific attachments identify any such energy and/or water savings projects that are currently in place for the specific utility system.

The Contractor agrees to take no action that will negatively impact these utility conservation projects without prior approval of the Contracting Officer. Additionally, the Government reserves the ability to enter into any future energy and/or water savings projects with the goal of reducing Government costs. Projects implemented by the Government that will require changes in the privatized system shall be coordinated between the parties prior to implementation.

If, after award, additional efficiency System Deficiency Corrections (SDCs)/Upgrades projects are identified by the Contractor, they shall be proposed to the Government in accordance with Section C, SDCs/Upgrades/Connections and Renewals and Replacements. The Government may consider cost-savings sharing and incentives either through utility services charge adjustments or lump-sum payments.

C.3.5 Commodity Supply Natural gas, and water commodity supply is not included in this contract, even if any production facilities are included as part of the system to be conveyed. The Government retains the right to procure or supply any commodity that will be transported on the system(s) covered by this contract from any source, including the Contractor if the Contractor proposes to supply the commodity via an alternate proposal. In accordance with FAR 41.102, natural or manufactured gas cannot be procured under this solicitation.

Offerors may submit an alternate proposal that includes the supply of commodities (See Section L, Alternate Proposals and Exceptions to Terms and Conditions). Such offers will be considered

SP0600-10-R-0809 Amendment 0003 PAGE 9 OF 58 on a case-by-case basis. The Government will remain the customer of record and retain ownership of all commodities transported and distributed through the Contractor-owned systems unless otherwise provided in the contract.

C.3.6 Wastewater Effluent Disposal If, as a result of this transaction, the Contractor will be responsible for providing wastewater treatment services, whether by virtue of having taken conveyance of the Government’s wastewater treatment plant or pursuant to an obligation to subcontract for such services on behalf of the Government, then the Contractor shall own all wastewater upon its entry into the Contractor's system at the point of demarcation as identified in the utility-specific attachment through discharge from the point of permitted discharge.

If, as a result of this transaction, the Contractor will merely own and operate a wastewater collection system and the Government will continue to use its current source of wastewater treatment (whether on or off the installation), then the Government shall own the wastewater.

Regardless of the nature or scope of the conveyance or the resulting wastewater ownership arrangement, the Government shall retain the right to use any reclaimed water (i.e., treated wastewater) for any purpose at no additional cost to the Government. However, in all events where the Contractor is responsible for providing wastewater treatment services, the Contractor shall be responsible for treating the wastewater to land discharge standards.

C.4 Service Area The service area is defined as all areas within the Government installation boundaries and any other facilities and property boundaries under the control of the Installation. Within the service area and upon the Government’s request, the Contractor shall provide utility services to all existing and new customers. At any time, by written order, the Contracting Officer may designate any location within the service area where utility services under this contract shall commence or be discontinued. Any service charge adjustment as a result of these actions will be in accordance with Section G.

C.4.1 Use of Distribution Systems to Serve Areas Outside the Installation Service Area The Contractor may use the utility infrastructure on the Installation to serve or benefit areas or customers outside the service area(s) only with concurrence of the Government. Compensation to the Government will be negotiated. In no way shall service to off-installation customers degrade or hinder reliable service, or create unhealthy, unsafe, or unacceptable outages to the Government’s facilities.

C.4.2 Joint Use

C.4.2.1 Government Use The Government may have property and equipment installed on or attached to poles, conduits, pipes, duct banks, towers, buildings, and other portions of the utility systems to be transferred.

The Government reserves the right to continue to use the property to be transferred for this purpose, to enter on the transferred property to maintain, repair, operate, upgrade, and replace its property and equipment, and to install new Government equipment. Any upgrade or replacement of such installed or attached property shall be made only after coordinating with the Contractor. Any upgrade or replacement of such installed or attached property shall comply with all applicable safety regulations.

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Attachment fees shall not apply. However, costs of any make-ready work related to safety requirements may be recovered under the contract. All attachments will be coordinated with the Contractor prior to the attachment.

C.4.2.2 Commercial Use

C.4.2.2.1 The Contractor shall enter into joint use agreements with the Installation's telephone company, cable television company, and other service providers in accordance with applicable law and regulation.

C.4.2.2.2 Certain system components may have third party equipment attached pursuant to a lease or other contractual arrangement between the third party and the Installation. The Contractor will take ownership of these components subject to such lease(s), with any revenue continuing to accrue to the Installation until the lease(s) expire or are otherwise terminated at the discretion of the Installation. Any new lease(s), lease extensions, or other arrangements between the Contractor and any third party to permit attachment of third party equipment to system components must be approved by the Installation and may be subject to revenue sharing, all of which must be negotiated with the Installation under separate agreement. The Installation considers cellular telephone antennae to be mission-essential equipment and requests for permission by a third party to attach such equipment to the Contractor-owned components shall not be unreasonably withheld, or subjected to unreasonable fees.

C.5 Utility System Ownership, Personnel, and Security

C.5.1 Utility System Ownership

C.5.1.1 Transfer of Title A general description of the utility system(s) assets to be transferred is included in the utility-specific attachments. Prior to the transfer of title, such facilities shall continue to be owned by the Government. Transfer of title shall be accomplished by Bill of Sale, with access provided via the Right of Access granted in the Contract. The Bill of Sale shall provide the complete list of all assets to be sold.

The Contractor shall neither transfer nor assign its interests in the utility system(s) assets transferred by Bill of Sale without the prior written consent of the Government. No transfer or assignment of the Contractor’s interests in the utility system(s) assets transferred by Bill of Sale shall occur except in connection with the Government’s recognition of a successor in interest to this contract under FAR 42.1204.

An example of the Bill of Sale is provided in Section J, Attachment JR1. The parties shall prepare and execute such additional documents as may be necessary to implement the ownership transfer.

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C.5.1.2 Tools, Vehicles, and Equipment Unless listed in the final Bill of Sale, Government-owned tools, vehicles, and equipment used for system operations and maintenance that are not a physical part of the utility system will remain the property of the Government.

C.5.1.2.1 Radiation Causing Devices The Contractor shall provide the Government with notice that it has obtained all licenses required by Federal laws and regulations for all licensed or licensable radiation source or byproduct materials and provide the Government copies of the licenses. The Government may deny the use or storage of any radiation source or byproduct material on the Installation. The Contractor shall comply with the terms of the licenses and all applicable Federal laws and regulations when maintaining, storing, utilizing, and disposing of radiation source or byproduct materials.

C.5.1.3 Placement of Utility System The Contractor shall comply with requests from the Installation regarding the placement of new or renewal utility systems either overhead or underground, unless to do so would cause the Contractor to violate any applicable law or regulation or would be inconsistent with sound utility operational practices. Requests for placement that differ from normal utility practice may constitute a reasonable cause for an equitable adjustment in accordance with Section G.

C.5.1.4 Contractor Facilities The Contractor, at its expense, shall acquire, furnish, install, and operate and maintain all facilities required to provide the utility service(s) hereunder. The Contractor shall have title to all facilities it builds and equipment it installs under this contract, except as otherwise specifically provided. If available and at the Government’s sole discretion, the Contractor may be permitted to either build or lease office space, maintenance shops, materials storage/staging areas, or other facilities on the Installation.

The Contractor shall be responsible for acquiring all utilities, janitorial services, building maintenance, and ground maintenance for these facilities. The Government may, if its capabilities permit, consent to provide certain of these services to the Contractor on a reimbursable basis, as defined in the utility-specific attachments.

New construction or remodeling of existing facilities shall comply with the Installation’s architectural standards and be fully coordinated with the Installation prior to beginning construction (see utility-specific attachments for list of available facilities).

C.5.1.5 Record Drawings The Contractor shall maintain record drawings for all existing and new facilities installed by the Contractor within the service area. Upon reasonable request and with reasonable notice, the Government may use and copy such drawings. The Contractor shall provide available drawings to the Government in the electronic media formats using the latest release software compatible with Government systems at no cost to the Government. The Contractor will also provide information to allow for updates to the Installation Geographical Information System (GIS). The Contractor shall identify changes to and update utility system maps in both hard copy (full size) and electronic media formats to ensure delineation of all Contractor facilities within one year of the contract start date and annually thereafter as necessary in conjunction with submission of the Annual SDC/Upgrades/Connections and R&R Plan.

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C.5.1.6 Disposition of Removed or Salvaged Materials The removal and disposition of facilities and materials that are not used and useful for the purpose of providing utility service(s) shall be the responsibility of the Contractor. The Contractor shall notify the Contracting Officer or designated representative when removing hazardous substances in accordance with Section H., Hazardous Substances and the Specific Service Requirements outlined in the utility-specific attachments. Abandoned plant items not identified on existing maps but found during operations shall be documented on the drawings. In order to prevent hazardous conditions, the Contractor shall be responsible for ensuring that no interconnections exist between abandoned and utilized facilities.

C.5.1.7 Liens and Mortgages The Contractor shall not engage in any financing or other transaction creating any mortgage upon any Government property, place or suffer to be placed upon Government property any lien or other encumbrance, or suffer any levy or attachment to be made on the Contractor's interest in any easement or right of access to Government property. For the purposes of this clause, property shall include, but not be limited to: fee, lease, license, personal property, or any authorized Government use or interest in property.

C.5.2 Personnel For purposes of this contract, the term “personnel” or “employee(s)” refers to any person performing work related to this contract, including but not limited to, the Contractor’s employees, agents, representatives, or subcontractors. The Contractor shall not permit any personnel to work under this contract if such person is identified to the Contractor as a potential threat to the health, safety, security, general well-being, or operational mission of the Installation or population. All personnel will comply with Installation security, health, and safety conditions.

The Contractor will allow the Installation to review on a continuing basis a listing of all personnel engaged in providing utility services to the Installation. The listing will provide sufficient information on all personnel to allow precise Government identification of each individual.

C.5.2.1 Speaking, Reading, and Understanding English Where reading, understanding, and discussing environmental, health, and safety warnings are an integral part of an employee’s duties, that employee shall be able to understand, read, write, and speak the English language fluently. All personnel that interface with customers shall be able to speak and understand the English language fluently.

C.5.2.2 Personnel Appearance and Identification The Contractor’s personnel shall present a neat appearance and be readily recognized as Contractor personnel. As required by the Installation, the Contractor shall ensure each employee obtains from Security Forces an identification card that shall include at a minimum the employee’s name, photograph, and Contractor’s name. Each employee shall follow established Installation procedures for displaying their identification card while within the boundaries of the Installation.

C.5.2.3 Employee Certification The Contractor shall ensure that employees meet all applicable federal, state, local, and Installation certification, licensing, and medical requirements to perform all assigned tasks and functions as defined in this contract.

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C.5.2.4 Installation’s Rules Apply to the Contractor Rules, regulations, directions, and requirements issued by the Installation, or other command authorities, under their responsibility for good order, administration, and security, including Specific Service Requirements as outlined in the utility-specific attachments, apply to all personnel who enter the Installation or who travel by Government transportation.

C.5.2.5 Reserved

C.5.2.6 Controlled Access Areas The Contractor shall apply for personnel security clearances required for performance after the contract is awarded. Personnel requiring access to secured areas or restricted areas under the control of the Installation shall comply with applicable regulations. The Government reserves the right to terminate the entry of any employee upon disclosure of information that indicates the individual’s continued entry to the Installation is not in the best interests of national security.

Additionally, violation of, or deviation from, the established security procedures by the Contractor’s personnel may result in the confiscation of identification media and the denial of future entry to the Installation.

C.5.2.7 Conflict of Interest The Contractor shall not knowingly employ any person who is a U.S. Government employee if employing that person would create a conflict of interest. Additionally, the Contractor shall not knowingly employ any person who is an employee of the Government, either military or civilian, unless such person seeks and receives written approval according to DOD 5500.7-R, Joint Ethics Regulations (JER).

C.5.2.8 Employment of Military Personnel The Contractor is cautioned that off-duty active military personnel hired under this contract may be subject to permanent change of station, changing duty hours, or deployment. Military reservists and National Guard members may be subject to recall to active duty. The abrupt absence of these personnel could adversely affect the Contractor’s ability to perform. However, their absence at any time shall not constitute an excuse for nonperformance under this contract.

C.5.2.9 Employment of Quality Assurance Representative Personnel The Contractor is prohibited from employing Quality Assurance Representatives (QAR) whom the Contractor knows or should know are responsible for monitoring any contracts/subcontracts awarded to the Contractor.

C.5.3 Contractor Vehicles All Contractor vehicles shall be readily identifiable. Identification shall include displaying Contractor name in a clear and unobstructed location on the vehicle.

C.5.4 Contractor Communications Devices Prior to operating communications devices on the Installation, the Contractor shall obtain approval of the Installation Communication Group by requesting an available clear frequency.

The Contractor shall follow all Installation procedures for operating communications devices on the Installation in accordance with Department of Defense FAR Supplement (DFARS) 252.235- 7003, Frequency Authorization.

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C.5.5 Contractor Advertising The Contractor shall not place or display (nor permit a third party to place or display) advertising of any kind on Government property or on the Contractor’s property located on the Installation.

Reasonable markings on the Contractor’s property, including vehicles, for the purpose of identifying it as the Contractor’s property are permitted.

C.6 Access to the Utility System

C.6.1 General The Contractor and its agents, employees, Contractors, and subcontractors shall have reasonable access to the Installation (Premises) to accomplish its duties and responsibilities under the Contract. Such access is subject to the general supervision and control of the Installation’s commander and his duly authorized representatives. In accepting the rights, privileges, and obligations established hereunder, the Contractor recognizes that the Installation serves the national defense and that the Government will not permit the operation, construction, installation, repair, and maintenance of a utility system and the provision of utility services to interfere with the Installation's mission.

C.6.2 Right of Access This Installation is an operating military installation that is closed to the public and is subject to the provisions of the Internal Security Act of 1950, 50 U.S.C. § 797, and of 18 U.S.C. § 1382. Access to the Installation is subject to the control of its Installation Commander and is governed by such regulations and orders as have been lawfully promulgated or approved by the Secretary of Defense or by any designated military commander. Any access granted to the Contractor, its officers, employees, Contractors of any tier, agents, and invitees is subject to such regulations and orders. This Right of Access is subject to all regulations and orders currently promulgated or which may be promulgated by lawful authority as well as all other conditions contained herein. Such regulations and orders may, by way of example and not by way of limitation, include restrictions on who may enter, how many may enter at any one time, when they may enter, and what areas of the Installation they may visit, as well as requirements for background investigations, including those for security clearances, of those entering. The Contractor is responsible for the actions of its officers, employees, Contractors of any tier, agents, and invitees while on the Installation and acting under this Right of Access.

In the event all or any portion of the Premises shall be needed by the Government or in the event the presence of the Contractor’s property shall be considered detrimental to governmental activities, the Contractor shall, from time-to-time and upon notice to do so, and as often as so notified, remove or relocate its property to such other location or locations on the Premises as may be required by the contracting officer or authorized representative, and in the event the Contractor’s property shall not be removed or relocated within ninety (90) days after any aforesaid notice, the Government may cause the same to be done. Any removal or relocation of the Contractor’s property at the direction of the Government under Section C.6.2 shall be at the Government’s expense.

The Contractor further recognizes that the operation, construction, installation, repair, and maintenance of the utility system on the Installation may be subject to requirements and approvals not ordinarily imposed by civilian authorities, including, but not limited to, SP0600-10-R-0809 Amendment 0003 PAGE 15 OF 58 compliance with the National Environmental Policy Act of 1969, as implemented. The Contractor agrees to abide by all applicable regulations.

The Contractor shall neither transfer nor assign this Right of Access nor any interests or rights thereunder without the prior written consent of the Government. No transfer or assignment of the Contractor’s rights or interests under this Right of Access shall occur except in connection with the Government’s recognition of a successor in interest to this contract under FAR Subpart 42.14.

C.6.2.1 Condition of the Premises The Contractor is granted access to the Premises in an “as is, where is” condition without any warranty, representation by the Government concerning the condition of the Premises, or obligation on the part of the Government to make any alterations, repairs, improvements, or corrections to defects whether patent or latent. At such times and for such part of the Premises as the Installation Commander may determine, the Government and the Contractor, hereinafter referred to as the “Parties,” will prepare and sign a Physical Condition Report to reflect the condition of the Premises prior to the Premises being disturbed by the activities of the Contractor. Such Report shall be used by the Government upon the expiration or termination of this Contract to determine whether the Contractor has fulfilled its obligations to maintain and restore the Premises to the condition required by this Right of Access.

C.6.2.2 Alteration of Premises If the Contractor’s property located on the Premises intrudes into airspace subject to regulation under the Federal Aviation Regulations or their Air Force counterparts, such property shall be operated, constructed, installed, repaired, and maintained in conformance with such regulations.

C.6.2.3 Government Access Nothing in the Contractor’s Right-of-Access shall be interpreted as interfering with or otherwise limiting the right of the Government and its duly authorized officers, employees, Contractors of any tier, agents, and invitees to enter upon the Premises for any lawful purpose.

C.6.2.4 Other Grants of Access This Right of Access is subject to all outstanding easements, rights of way, leases, permits, licenses, and uses for any purpose with respect to the Premises. The Government shall have the right to grant additional easements, rights of way, leases, permits, and licenses, and make additional uses with respect to the Premises. Provided however, that the Government shall not grant any such additional easements, rights of way, leases, permits, licenses, or uses which will, as determined in the sole discretion of the Government, unreasonably interfere with the Contractor's use of the Premises under this Right of-Access.

C.6.2.5 Reserved

C.6.2.6 Liability for Damages Any interference with the use of or damage to any real or personal property under the control of the Government incident to the exercise of the rights and privileges granted to

SP0600-10-R-0809 Amendment 0003 PAGE 16 OF 58 the Contractor under this Right of Access shall be promptly corrected by the Contractor to the satisfaction of the Installation Commander. If the Contractor fails to promptly repair or replace any damaged property after being notified to do so by the Installation Commander, the Government may repair or replace such property and the Contractor shall be liable to the Government for the costs of such repair or replacement.

C.6.2.7 Fire Protection C.6.2.7.1 The Contractor shall enter into a Memorandum of Understanding (MOU) with the Base Fire Department for fire protection of all facilities included in the purchase of the utility system. The MOU shall be completed during the transition period and a copy provided to the Contracting Officer.

C.6.2.7.2 The Contractor shall abide by Base fire protection requirements. The utility system purchased by the Contractor includes facilities. These facilities may or may not include fire alarm systems. Where required by federal, state, or local regulation, the Contractor shall maintain in the fire alarm system for all facilities owned and operated by the Contractor. The Contractor shall permit Fire Department personnel access to their facilities to perform fire inspections and emergency response.

C.6.3 Restoration of Premises at Expiration or Termination On or before the date of expiration or termination of this Contract, the Contractor shall vacate the Premises, remove all of its equipment, fixtures, structure, property and improvements of whatever nature from the Premises deemed unnecessary by the Installation Commander for the continued provision of utility services, and restore the Premises to a condition satisfactory to the Installation Commander without additional expense to the Government. Such restoration shall include, if applicable, removal of contamination caused by the Contractor.