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MURIEL BOWSER
MAYOR
January 24, 2025
The Honorable Phil Mendelson
Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Pursuant to section 451 of the District of Columbia Home Rule Act (D.C. Official Code § 1-
204.51) and section 202 of the Procurement Practices Reform Act of2010 (D.C. Official Code§
2-352.02), enclosed for consideration and approval by the Council of the District of Columbia is
proposed Modification No. 1 to Contract No. DCAM-24-CS-RFP-0001 with Chiaramonte
Construction Company, increasing the not-to-exceed amount by $1,420,400.57, from $1,930,985
to $3,351,385.57. The increase in the not-to-exceed amount is an early release of funds for an
additional initial phase of the HVAC Upgrades of Meyer Elementary School.
As part of the additional initial phase of the project, Chiaramonte Construction Company will
provide design-build services, including HV AC and Electrical (Gear and Panels), while the
District and Chiaramonte Construction Company finalize the full scope and guaranteed maximum
price for the project.
My administration is available to discuss any questions you may have regarding the proposed
modification. In order to facilitate a response to any questions you may have, please contact Delano
Hunter, Director, Department of General Services ("DGS"), or have your staff contact Eric Njonjo,
Deputy Chief Procurement Officer, DGS, at (202) 727-2800.
I look forward to the Council's favorable consideration of this contract modification.
1
GOVERNMENT OF THE DISTRICT OF COLUMBIA
Office of Contracting and Procurement
Pursuant to section 202(c) of the Procurement Practices Reform Act of 2010, as amended, D.C.
Official Code § 2-352.02(c), the following contract summary is provided:
COUNCIL CONTRACT SUMMARY
(Standard, tipping, retroactive without changes, and multiyear)
Modification No. 1 to Design-Build Agreement for Meyer Elementary School HVAC Upgrades
(A) Contract Number: DCAM-24-CS-RFP-0001
Modification No.1
Proposed Contractor: Chiaramonte Construction Company
Proposed Increased Amount $1,420,400.57
Via Modification No. 1:
Total Contract’s Not-to-Exceed (“NTE”) Amount: $3,351,385.57
Unit and Method of Compensation: Progress payments on a monthly basis
Term of Contract: June 25, 2024 (date of execution of the
Contract by the Department of General
Services (the “Department” or “DGS”)
through August 17, 2026 (“Substantial
Completion Date”) with an Administrative
Term of December 30, 2027.
Type of Contract: Cost Plus Fixed Fee with a Guaranteed
Maximum Price (“GMP”)
Source Selection Method: Competitive Request for Proposals
(B) For a contract containing option periods, the contract amount for the base period and for each
option period. If the contract amount for one or more of the option periods differs from the
amount for the base period, provide an explanation of the reason for the difference:
Not applicable.
2
(C) The goods or services to be provided, the methods of delivering goods or services, and any
significant program changes reflected in the proposed contract:
The Department engaged Chiaramonte Construction Company (the “Contractor”) to provide design-
build services for HVAC upgrades of Meyer Elementary School . The Project includes HVAC
replacement, electrical heavy -up, new ceilings, and lights. The Project shall be designed to
incorporate at a minimum LEED for Schools—Gold principles and achieve net zero strategies.
The underlying Contract was deemed approved by the Council on June 24, 2024, as CA25-837 with
an NTE amount of $1,930,985.
The Department now seeks Council approval to execute proposed Modification No. 1. If approved,
Modification No. 1 will increase the Contract’s NTE amount by $1,420,400.57, from $1,930,985 to
$3,351,385.57. Modification No. 1 will authorize the release of necessary Project funding for an
additional initial phase of the Project. As the proposed modification would increase the Contract
value by more than $1 million, Council approval is required for this contract action.
(D) The selection process, including the number of offerors, the evaluation criteria, and the
evaluation results, including price, technical or quality, and past performance components:
The underlying Contract was competitively bid and previously submitted to and approved by the
Council (CA25-837) on June 24, 2024.
(E) A description of any bid protest related to the award of the Contract, including whether the
protest was resolved through litigation, withdrawal of the protest by the protestor, or
voluntary corrective action by the District. Include the identity of the protestor, the grounds
alleged in the protest, and any deficiencies identified by the District as a result of the protest:
The award of the Contract was not protested.
(F) A description of any other contracts the proposed contractor is currently seeking or holds
with the District:
The Contractor is currently involved in several District projects and is in pursuit of many other
District projects. The list of projects is provided as Exhibit A.
(G) The background and qualifications of the proposed contractor, including its o rganization,
financial stability, personnel, and performance on past or current government or private
sector contracts with requirements similar to those of the proposed contract:
The Contractor is based in Washington, DC, and is a Certified Business Enterprise (“CBE”)
specializing in new construction and remodeling of commercial and government buildings in the
DC. The Contractor provides a range of services including general construction, construction
management, and procurement services.
The Contractor has successfully completed the following projects for DGS and other organizations:
1. The Smothers Elementary School Renovation in Washington, DC;
3
2. Amidon-Bowen Elementary School Overcrowded Child Development Center Project in
Washington, DC;
3. Ballou High School Modernization Project in Washington, DC; and
4. Ward 5 – Short-Term Family Housing Project in Washington, DC.
The Contractor possesses the financial stability to successfully perform the Project and has provided
a staffing plan for the Project, which has been reviewed and approved by the Department. The
Contractor has been determined responsible in accordance with 27 DCMR § 4706.1.
(H) A summary of the subcontracting plan required under section 2346 of the Small, Local, and
Disadvantaged Business Enterprise Development and Assistance Act of 2005, as amended,
D.C. Official Code § 2-218.01 et seq. (“Act”), including a certification that the subcontracting
plan meets the minimum requirements of the Act and the dollar volume of the portion of the
contract to be subcontracted, expressed both in total dollars and as a percentage of the total
contract amount:
The Contractor is a certified business enterprise in accordance with the Act (CBE Number:
LSZX29212122027). Pursuant to D.C. Code § 2-218.46 (d-1), the Contractor shall submit a detailed
subcontracting plan to DSLBD that meets the requirements of D.C. Code § 2 -218.46(d), before
entering into a guaranteed maximum price.
Contract’s NTE Dollar Value: $3,351,385.57
Subcontracting Requirement %: 35% of subcontracting amount
Subcontracting Plan Required Dollar Value: $668,601.42
Subcontracting Plan Actual Dollar Value: $1,335,569.90
(I) Performance standards and the expected outcome of the proposed contract:
The Contractor is required to provide all design, preconstruction, and construction services, as well
as all other services necessary to substantially complete the Project no later than August 17, 2026.
In general, the Contractor must perform the requirements contained in the Contract and meet or
exceed the performance standards therein. The Contractor is subject to liquidated damages of $2,500
per day of delay for failure to timely achieve substantial completion of the Project. The Contract also
provides a disincentive fee of $25,000 for the replacement of key personnel without the Department’s
prior approval and not as a penalty, to reimburse the Department for its administrative costs arising
from the Contractor’s failure to provide the key personnel.
(J) The amount and date of any expenditure of funds by the District pursuant to the contract
prior to its submission to the Council for approval:
Not applicable.
(K) A certification that the proposed modification to the contract is within the appropriated budget
authority for the agency for the fiscal year and is consistent with the financial plan and budget
adopted in accordance with D.C. Official Code §§ 47-392.01 and 47-392.02:
4
The Office of the Chief Financial Officer has certified that the proposed modification’s NTE amount
is consistent with the Department’s budget and that adequate funds are available in the Department’s
budget in accordance with §§47- 392.01 and 47- 392.02. T he applicable Fiscal Sufficiency
certification accompanies this Council Package.
(L) A certification that the contract is legally sufficient, including whether the proposed
contractor has any pending legal claims against the District:
The proposed Contract Modification No. 1 has been deemed legally sufficient by the Department’s
Office of the General Counsel and the Contractor does not appear to have any currently pending
legal claims against the District.
(M) A certification that the Citywide Clean Hands database indicates that the proposed contractor
is current with its District taxes. If the Citywide Clean Hands Database indicates that the
proposed contractor is not current with its District taxes, either: (1) a certification that the
contractor has worked out and is current with a payment schedule approved by the District;
or (2) a certification that the contractor will be current with its District taxes after the District
recovers any outstanding debt as provided under D.C. Official Code § 2-353.01(b):
The Citywide Clean Hands database indicates that the Contractor is in compliance with the
Government of the District of Columbia ’s tax laws and regulations. The applicable Clean Hands
certification for the Contractor accompanies this Council Package.
(N) A certification from the proposed contractor that it is current with its federal taxes, or has
worked out and is current with a payment schedule approved by the federal government:
The Contractor has certified that it is current with its federal taxes
(O) The status of the proposed contractor as a certified local, small, or disadvantaged business
enterprise as defined in the Small, Local, and Disadvantaged Business Enterprise Development
and Assistance Act of 2005, as amended, D.C. Official Code § 2-218.01 et seq.:
According to the DSLBD website, the Contractor is a certified Local Business Enterprise and
Resident Owned Business. The Contractor’s CBE Number is LSZX29212122027, with an expiration
date of December 31, 2027.
(P) Other aspects of the proposed contract that the Chief Procurement Officer considers
significant:
Not applicable
(Q) A statement indicating whether the proposed contractor is currently debarred from
providing services or goods to the District or federal government, the dates of the debarment,
and the reasons for debarment:
The Contractor is not debarred from providing services to the Government of the District of
Columbia or the Federal Government according to the Office of Contracts & Procurement’s
Excluded Parties List and the Federal Government’s Excluded Parties List.
5
(R) Any determination and findings issues relating to the contract’s formation, including any
determination and findings made under D.C. Official Code § 2-352.05 (privatization
contracts):
Not applicable.
(S) Where the Contract, and any amendments or modifications, if executed, will be made
available online:
Contract award information is available on the Department’s website. Copies of contract
documents will be made available upon request.
(T) Where the original solicitation, and any amendments or modifications, will be made available
online:
The original solicitation and any amendments have been posted on the Department’s website.
(U) (1) A certification that the proposed contractor has been determined not to be in violation of
section 334a of the Board of Ethics and Government Accountability Establishment and
Comprehensive Ethics Reform Amendment Act of 2011, D.C. Official Code § 1-1163.34a; and
(2) A certification from the proposed contractor that it currently is n ot and will not be in
violation of section 334a of the Board of Ethics and Government Accountability Establishment
and Comprehensive Ethics Reform Amendment Act of 2011, D.C. Official Code § 1-1163.34a:
Based upon a certification from the Contractor, the Contractor has been determined not to be in
violation of D.C. Official Code § 1-1163.34a; and will not be in violation of D.C. Official Code § 1-
1163.34a.
6
Exhibit A
Projects Chiaramonte Construction Company Is Currently holding With District Agencies (not
only DGS):
1. Contract Number Project Caption
Project Value
2. DCAM-21-CS-RFP-0015 Anacostia Recreation Center $8,000,000
3. DCAM-22-CS-RFP-0005 ADA Upgrades PKG1- 4 DPR Facility $1,800,000
4. DCAM-20-CS-RFQ-0001 Hill East Steam Pipe Relo $14,783,270
5. CS-24-C001
CCPCS-Charter School 2024 Capital
Improvement $237,399
6. CS-23-C002 CCOCS-Science Center Charter School $8,991,810.18
7. DCAM-22-CS-RFQ-0001 Oak Hill Infrastructure Upgrade $497,737
8. DCAM-24-CS-RFP-0001 Meyer ES HVAC Upgrades $1,935,985
9. DCAM-22-CS-RFP-0009 Stoddert Elementary School $18,000,000
10. DCAM-22-CS-RFP-0007 ADA Upgrade PKG3-3DPR Facility $1,000,000
11. DCAM-22-CS-RFP-0006 ADA Upgrade PKG2- 4 DPR Facility $1,200,000
12. DCAM-20-CS-RFQ-0001 CTF/DOC Window Wall Restore $3,500,000
13. DCAM-20-CS-RFQ-0001 Davis ES HVAC Upgrades $10,000,000
14. DCAM-21-CS-RFP-0006 Fort Greble Urban Nature Center $4,600,000
15. DCAM-22-CS-RFP-0022 Jefferson Turf Field $1,200,000
16. DCAM-20-CS-RFQ-0001 OSSE EV Charging Stations $450,000
17. DCAM-23-CS-RFP-0014 Hillcrest Aquatic Center $999,000
18. DCAM-22-CS-RFQ-0001 MPD 4D N Sec Upgrade $623,675
19. DCAM-23-CS-RFP-0009 JO Wilson Modernization $79,000,000
20. DCAM-22-CS-RFQ-0001 President Stands $8,500,000
21. RFP CA-X1-2023 DCHA-Lincoln Road Residences $808,519.25
22. RFP CA-X1-2023 DCHA-Richardson Dwellings $1,941,746.62
23. PPAB 10897566 KIPP DC Summer Capital Improvement $469,689
24. DCPL-2024-R-0009 DCPL-Petworth Library $463,204
25. WMATA RFP-9541 WMATA Bike and Storage $1,850,000
7
Projects Chiaramonte Construction Company Is Currently Seeking With District Agencies (not
only DGS):
Contract Number Project Caption Project Value
DCAM-24-CS-RFP-0030 DB Euclid MS Modernization $98,000,000
DCAM-24-CS-IFB-0015 DPW Ft Totten Solid Waste
Resurfacing $1,200,000
DCAM-25-CS-RFP-0006
DB Advanced Tech Center $14,600,000
RFTOP-CS-0119
DB MLK ES Swing Space $4,500,000
RFTOP-CS-0120
DB Brent ES Swing Space $3,500,000
RFTOP-CS-0121 CS Anacostia HS and Reed HS
Field Replacement $1,600,000
B45-122
IFB Fairland Recreational Park $1,800,000
DCAM-25-CS-RFP-0001
DB KC Lewis Swing Space $14,000,000
DCAM-24-CS-RFP-0031 CMAR for the Rosedale Pool
Replacement $6,000,000
DCAM-24-CS-RFP-0035
DB Burville ES Modernization $76,000,000
DCAM-24-CS-RFP-0014
DB Langdon Community Center $29,000,000
2024-R-2047 CS for HVAC Upgrades for
three Libraries $3,000,000
1101 4th Street, SW
Washington, DC 20024
Date of Notice: December 31, 2024 L0012961085Notice Number:
FEIN: **-***6336
Case ID: 18396588
Government of the District of Columbia
Office of the Chief Financial Officer
Office of Tax and Revenue
CHIARAMONTE CONSTRUCTION COMPANY
2260 MINNESOTA AVE SE
WASHINGTON DC 20020-5324
Branch Chief, Collection and Enforcement Administration
Authorized By Melinda Jenkins
To validate this certificate, please visit MyTax.DC.gov. On the MyTax DC homepage, click the
“Validate a Certificate of Clean Hands” hyperlink under the Clean Hands section.
CERTIFICATE OF CLEAN HANDS
As reported in the Clean Hands system, the above referenced individual/entity has no outstanding
liability with the District of Columbia Office of Tax and Revenue or the Department of Employment
Services. As of the date above, the individual/entity has complied with DC Code § 47-2862, therefore
this Certificate of Clean Hands is issued.
TITLE 47. TAXATION, LICENSING, PERMITS, ASSESSMENTS, AND FEES
CHAPTER 28 GENERAL LICENSE
SUBCHAPTER II. CLEAN HANDS BEFORE RECEIVING A LICENSE OR PERMIT
D.C. CODE § 47-2862 (2006)
§ 47-2862 PROHIBITION AGAINST ISSUANCE OF LICENSE OR PERMIT
1101 4th Street SW, Suite W270, Washington, DC 20024/Phone: (202) 724-5045/MyTax.DC.gov
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Memorandum
To: Delano Hunter
Director
From: Antoinette Hudson - Beckham
Agency Fiscal Officer
Reference: Proposed Modification No. 1 to Contract No. DCAM-24-CS-RFP-0001
Design-Build Services for Meyer Elementary School HVAC Upgrades
Date: January 13, 2025
Subject: Fiscal Sufficiency Review
In my capacity as the Agency Fiscal Officer of the Department of General Services (the “Department”),
I hereby state that Modification No. 1 (Early Start Agreement 2) to the Agreement for Design-Build
Services for Meyer Elementary School HVAC Upgrades (DCAM-24-CS-RFP-0001), with
Chiaramonte Construction Company , in the amount of $1,420,400.57, is consistent with the
Department’s current budget and that adequate funds are available in the budget for the expenditure.
Per the Department of General Services Contracts & Procurement (“C&P”) team, the underlying
Contract was deemed approved by the Council on June 24, 2024, as (CA25-0837), with an initial Not-
to-Exceed amount of $1,930,985.00 (as the Early Start Agreement #1 amount).
Per C&P, if approved the proposed Modification No. 1, in the amount of $1,420,400.57 will increase
the Contract’s NTE amount to $3,351,385.57 ($1, 930,985.00 + $1,420,400.57).
The Department of General Services (DGS – Implementing AGY) has $3,351,385.57 in the District
of Columbia Public Schools ( DCPS – Owner AGY) cumulative capital current/proposed budget
authority balance.
The SOAR/PASS information is attached/below.
________________________________
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Service
Project Name Project
Number
Fund
Detail AY Imp
AGY
Owner
AGY RQ/PO Amount Comments
GM102.GM102.BOILER
REPAIR.FIRE AND
LIFE/SAFETY
100063 3030300
N/A AM0 GA0 PO709586 $1,930,985.00 ESA #1
GM102.GM102.BOILER
REPAIR.FIRE AND
LIFE/SAFETY
100063 3030300 N/A AM0 GA0 RK296509 $873,198.25
Proposed Mod #1
(HVAC Part of
$1,420,400.57)
GM102.GM102.BOILER
REPAIR.FIRE AND
LIFE/SAFETY
100063 3030300 N/A AM0 GA0 RK296510 $547,202.32
Proposed Mod #1
(Life Safety Part of
$1,420,400.57)
TOTAL $3,351,385.57
for AHB
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
3924 Minnesota Avenue NE, 6th Floor Washington, DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
OFFICE OF THE GENERAL COUNSEL
MEMORANDUM
TO: Tomás Talamante
Director, Office of Policy and Legislative Affairs
FROM: Kristen Walp
Senior Assistant General Counsel
SUBJECT: Legal Sufficiency Certification
Modification No. 1 to Design-Build Agreement f or Meyer Elementary School
HVAC Upgrades
Contract Number: DCAM-24-CS-RFP-0001
Contractor: Chiaramonte Construction Company
DATE: January 15, 2025
_____________________________________________________________________________
This is to certify that this Office has reviewed the above-referenced proposed Modification No. 1
and has found it to be legally sufficient, subject to submission of : (i) any required materials to
Council for approval; (ii) Council’s approval of the same; and (iii) a Fiscal Certification issued by
the Department of General Services’ Agency Fiscal Officer.
Please feel free to contact me at (202) 727-2800 with any questions.
_______________________
____________________________
Kristen Walp
Senior Assistant General Counsel
F-Conraetarbor PogoofPeaceMODIFICATIONOFCONTRACT scasecsseeeot1 naPoaee
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TITHISITEMONLYAPPLIESTOANENOMENTSOFSOLICITATIONS
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ScopeofWork.TheContractor'sscopeofworkremainsunchanged.ThisModificationNo.1is@secondEaryStartAgreementthatincreasestheNot-o-ExceedAmounttoreleaseadditonalProjectfunding.ModificationNo.1isforthereleaseoffunds‘necessaryforanadditionalinitalphaseoftheproject.
2 Not-to-ExceedAmount.TheContract'sNTEamountisherebyincreasedby$1,420,400.57,from$1,930,986.00to'$3,351,385.57.Theamountof§3,351,385.57Includesthepreviouslyreleasedcontractamountof$1,930,985.00asfurtherdescribedinExhibitA,
13 Release:ItsmutuallyagreedthatinexchangeforthisModificationandotherconsiderations,theContractorherebyreleases,Waives,settles,andholdstheDepartmentharmlessfromanyandallactualorpotentialclaimsordemandsfordelays,disruptions,additionalwork,addtionaltime,additionalcost,contractextensions,compensationsorlabilityunderanytheory,whetherknownorunknown,thattheContractormayhavenoworinthefutureagainsttheDepartmentarisingfromoroutof,a8a‘consequenceorresultof,relatingtoorinanymannerconnectedwiththisModification,theabove-referencedProject,andtheContractWork,
J Terms&Conditions:AllotherTermsandConditionsremainunchanged.
TSA,NameandTieofSigner(Typeorpant FA.NameofContactingOffearFrankChiaramonte,President JPeterHenryLyonga58,ChiaramonteConstructionCompany FSC,DateSigned|168,DistrictofColumbia [166.DateSigned
nL a 15Jan2025
‘Soneponoutes200 (sereneonc
(Continuation)
ContractNumber ModificationNo. PageofPages
DCAM-24-CS-RFP-0001 ModificationNo.1-DCAM-24-CS-RFP-0001 2of2
5.ContractRecap:
Contract(ESA1) Executed:June25,2024 $ —1,930,985.00
$— 1,420,400.57‘ModificationNo.1(ESA2)
TotalPrice
J,
CE
\
MEYERHVACRENOVATION
chiaramonteCONSTRUCTIONCOMPANY
CHIARAMONTE CONSTRUCTION COMPANY -2260MINNESOTA AVE SE,WASHINGTON, DC 20020
ESA Set:Schamtic Desgin Set
CS. ESA2
01000 ___|GeneralRequirements 3 z
22000& 23000[H.V.AC $846,952.4426000 __|Electrical(GearandPanels) $_ 530,755.00TOTAL HARD COST $ 1,377,707.44
[GeneralConditions $ =
Design-BuildFee(Pre-confee15%ofdesginfee) $ 5
DesignFees $ =
BuildingPermit-Allowance $ =Utility-Allowance $ 5
[DesignContingency $ 5
[ConstructionContingency $ p
Owner Controlled Allowance $ °
insurance 2% $28,462.09
[Payment& PerformanceBond he $14,231.04
TOTALSOFTCOST $42,693.13,TOTAL COST $_1,420,400.57
CCCchiaramonteCONSTRUCTIONCOMPANY May1,2024
Re:DCAM-24-CS-RFP-0001,DBSforMeyerElementarySchoolHVACUpgrades-FeesBreakoutR1.
Item DescriptionofWorkforESA1 ‘ScheduledValue
DesignFeeandbreakout.
1 | Conceptdesign $9,562.002 | Schematicdesign $150,136.00'3_|SchematicdesignCostestimating $0.004 [DesignDevelopment ‘$23,906.00,
5__|DesignDevelopmentCostEstimating $0.006__|Permitset $210,620.00
7 | ConstructionDocument ‘$21,755.00,8 | BiddingandCAServices ‘$87,021.00
GeneralConditionandbreakout9 | Costofconstructionstaff $598,485.0010| StaffCostAssociatedwithObtainingPermits, $9,000.0014__|Outofhouseconsultant ‘$20,000.00
12| Others(Printing/drawings/Delivery/FirstAid/OfficeSupply/SiteSecurity) ‘$13,000.00,13 | Insuranceandbondforthisphase ‘$37,500.00
DesignBuilFeeBreakout14 | DesignBuildfeeforPreconstructionPhase(15%) ‘$60,000.00.15 | DesignBuildfeeforConstructionphase(85%) $340,000.00
ProvidedAllowances16_|DGSPermitallowance ‘$45,000.00.17_|DGSUtilityAllowance ‘$50,000.00
18| DGSOwnerAllowance $255,000.00
Total $1,930,985.00
FrankChiaramontePresident
2260MinnesotaAve.SE,Washington,DC20032|Phone202.562.0027|www.ce-builder.comDCDSLBDCBE#LSZX95366032025
-1-
DESIGN-BUILD AGREEMENT
FOR
MEYER ELEMENTARY SCHOOL HVAC UPGRADES
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
CHIARAMONTE CONSTRUCTION COMPANY
CONTRACT NUMBER: DCAM-24-CS-RFP-0001
-2-
PROJECT INFORMATION
A. PROJECT SUMMARY
1. Project Name:
Design-Build Services for Meyer Elementary
School HVAC Upgrades
2. Project Address: 2501 11th Street NW, Washington, DC 20001
3. Agreement Type: Design-Build with Guaranteed Maximum
Price
4. Client Agency: District of Columbia Public Schools
(“DCPS” or “Client Agency”)
5. Design-Builder: Chiaramonte Construction Company
6. Agreement Amounts:
i. Initial NTE: $1,930,985.00
ii. Project Budget: $11,500,000.00
7. Design-Builder Compensation:
i. Design Fee (including
Construction Administration): $503,000.00
ii. Design-Build Fee: $400,000.00
iii. Lump Sum General Conditions
Cost: $677,985.00
iv. Allowances:
- Permit Allowance, $45,000.00;
- Utility Allowance (PEPCO), $50,000; and
- Owner’s Directed Allowance, $255,000.00.
v. Preconstruction Fee (15 % of
the Design-Build Fee) $60,000.00
vi. Contingency: To be determined at GMP
8. Liquidated Damages: $2,500.00 per day
9. Disincentive Fee for Failure to
Timely Submit Deliverables:
$7,500.00 plus $500.00 per day, per
deliverable
10. GMP Basis Project Documents
Submission Date (Exhibit M): July 20, 2024
11. Substantial Completion Date: August 17, 2026
-3-
12. Final Completion Date: June 15, 2027
13. Administrative Term Expiration
Date: December 30, 2027
14. Letter Contract (if applicable):
Period of Performance
From the date of the execution of the
Contract through July 17, 2026 (Substantial
Completion Date).
NTE Amount: $1,930,985.00
15. GMP Basis Project Documents Design Development Documents
16. Key Personnel Replacement: $25,000.00 per replacement
Page 4 of 121
DESIGN-BUILD AGREEMENT
EMERY SCHOOL RENOVATION
DCAM-24-CS-RFP-0001
THIS AGREEMENT (“Agreement” or “Contract”) is made by and between the
DISTRICT OF COLUMBIA GOVERNMENT (the “District”), acting by and through its
DEPARTMENT OF GENERAL SERVICES (the “Department” or “DGS”), and
CHIARAMONTE CONSTRUCTION COMPANY, a company duly organized under the
laws of the District of Columbia and with a place of business at 2260 Minnesota Avenue SE,
Washington, DC 20020 (the “Design -Builder” or “Contractor” and collectively, with the
Department, the “Parties”).
RECITALS
WHEREAS, the Department issued a R equest for Proposals dated January 16, 2024
(the “RFP”) to engage a design -builder to prepare a design for and to construct and complete
the work at Meyer Elementary School located at 2501 11th Street NW, Washington, DC 20001
(the “Project”);
WHEREAS, the Department intends to implement the Project through a design-build
approach. The scope of work for the Project will be divided into two phases: (i) the design and
preconstruction phase; and (ii) the construction phase;
WHEREAS, t he Department requires that the Project be completed no later than
August 17, 2026 (“Substantial Completion Date”);
WHEREAS, the Design-Builder submitted a proposal entitled “Design-Build Services
for Meyer Elementary School – heating ventilation, and air conditioning (“HVAC”) Upgrades
- DCAM-24-CS-RFP-0001,” dated February 7, 2024, to provide design-build services for the
Project;
WHEREAS, the Department retained the Design -Builder to provide design-build
services for the Project , which is to include design, preconstruction, construction, and
construction administration services for Meyer Elementary School HVAC Upgrades;
WHEREAS, the Design-Builder will provide the architectural, engineering,
construction, and related services necessary to complete the Project, subject to the terms and
conditions set forth in this Agreement;
WHEREAS, the Department has retained the services of a program manager (the
“Program Manager”) to advise it concerning the Project;
WHEREAS, the Department has established a budget and the Design- Builder will
conduct its work in accordance with an underlying budget for the Project, which includes but
is not limited to all design fees, hard and soft construction costs, fees, general conditions of the
Design-Builder Final Completion (such budget, the “Project Budget”); and
WHEREAS, the Department and the Design -Builder entered into letter contract dated
[Date] (the “Letter Contract”) pursuant to which the Design-Builder was authorized to proceed
with certain design, preconstruction, abatement, and demolition services in furtherance of the
Page 5 of 121
Project.
NOW, THEREFORE, the Department and Design -Builder, for the consideration set
forth herein, mutually agree as follows.
Page 6 of 121
DEFINITIONS
Section 1.1. Administrative Term.
The Agreement shall have an administrative term (the “Administrative Term”) that runs from
the effective date of the notice to proceed to the Administrative Term Date set forth in the
Project Information section above. In addition, within this time the Design -Builder shall
execute and submit a Final Release of Liens and Claims in a form and format required by a
Contracting Officer (“CO” or “Contracting Officer ), inclusive of providing the Department
with a complete set of any product manuals ( “O&M”) and training videos, if applicable . The
Administrative Term is established for the sole purpose of permitting the Department’s Office
of the Chief Financial Officer to process payments in the event any payments become
due. Notwithstanding the foregoing, nothing herein shall be construed to extend the Substantial
Completion Date, extend the Final Completion Date, or, limit the Department’s ability to assess
liquidated damages thereon.
Section 1.2. Agreement.
The terms “Agreement” or “Contract” shall mean this entire, integrated agreement between the
Department and the Design -Builder with respect to the Project, consisting of this document
and the Exhibits thereto, including but not limited to the Standard Contract Provisions
(Construction Contracts and Architectural/Engineering Services Contracts), the construction
documents released for the Design-Builder’s use and any change orders, contract modifications
or change directives that have been executed by the Department.
Section 1.3. Client Agency.
The governmental or quasi-governmental entity, represented by the Department, requesting the
Project.
Section 1.4. Construction Documents.
The final Drawings and Specifications, as prepared, sealed by the Design -Builder’s architect
in accordance with the law, and issued by the Design-Builder for the purpose of obtaining bids
from potential trade subcontractors and material suppliers for use in constructing the Project.
Section 1.5. Construction Phase Services.
Services provided throughout the construction phase during which the Design- Builder shall
carry out the bulk of the construction and manage the completion of the design for the Project,
including construction administration services.
Section 1.6. Cost of General Conditions.
The Cost of General Conditions shall mean the lump sum amount the Design-Builder is e ntitled
to recover for general conditions and is further described in Section 8.2 of this Agreement.
Section 1.7. Contract Documents.
The term “Contract Project Doc ume nt(s)” refers to one or more components of the Project
documents that comprise the Agreement between the Department and the Design-Builder,
including any modifications or changes thereof, the drawings and specifications (Exhibit A),
and any addenda to the RFP issued thereto.
Section 1.8. Des ign and Preconstruction Phase Services.
The services to be provided under Article 3 constitute the design & preconstruction phase
services to be performed by the Design-Builder.
Page 7 of 121
Section 1.9. Drawings.
The drawings are the graphic and pictorial portions of the Contract Project Documents ,
wherever located and wherever issued, showing the design, locations , and dimensions of the
Work, generally including plans, elevations, sections, details, schedule, and diagrams.
Section 1.10. Final Completion.
The point at which Substantial Completion has been achieved, all punchlist items noted at
Substantial Completion have been completed and all Project documents the Design-Builder is
required to deliver to the Department as a condition to receive final payment have been
delivered.
Section 1.11. Final Completion Date.
The date established in the Agreement by which the Design- Builder shall achieve Final
Completion. The Final Completion Date may be modified only by Change Order or Change
Directive in accordance with the Agreement.
Section 1.12. Fully Complete.
To undertake all of the Work necessary to fully construct and complete the Project and execute
all tasks necessary to obtain the final certificate of occupancy for the Project from the District
of Columbia; submit final lien releases from the Design-Builder and Subcontractors and
material suppliers; complete all punchlist items to the Department’s approval and sign-off; and
cause all representations, warranties, and guarantees to be honored and otherwise fulfill all of
the requirements set forth in the Agreement.
Section 1.13. Guaranteed Maximum Price or GMP.
The maximum amount, including, but not limited to, the design- build fee and the Cost of the
Work that will be paid to the Design-Builder to Fully Complete the Project as set forth in
Article 4. The Guaranteed Maximum Price (“GMP”) may be modified only by Change Order,
Contract Modification, or Change Directive in accordance with the Agreement. The GMP shall
be established in the GMP Amendment.
Section 1.14. Hazardous Material.
Hazardous Material includes but is not limited to, a ny toxic substance or hazardous chemical
defined or regulated pursuant to federal, state , or local laws relating to pollution, treatment,
storage, or disposal of waste, or protection of human health or the environment. Such laws
include, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, the Resource Conservation and Recovery Act, the Clean Water Act, the Clean
Air Act, and laws relating to emissions, spills, leaks, discharges, releases or threatened releases
of toxic material. The term Hazardous Materials shall also include petroleum and petroleum
bi-products.
Section 1.15. Notice to Proceed.
A written notice to proceed, signed by the Department’s Contracting Officer , directing the
Design-Builder to proceed with the Project or any portion of the Project (“Notice to Proceed”
or “NTP”).
Section 1.16. Project Schedule.
The schedule for the Project (“Project Schedule”) agreed upon by the Department and the
Design-Builder. Such schedule shall include a baseline schedule as updated periodically by
the Design-Builder, approved by the Department. The Project Schedule shall not be changed
except by a Contract Modification, Change Order or Change Directive issued by the
Department’s CO or Contracting Officer. The Project Schedule shall be in a form and contain
Page 8 of 121
such detail as may be agreed upon by the Parties.
Section 1.17. Self-Performed Work.
The parties hereby agree that “Self -Performed Work” means and shall encompass trade work
performed by employees of: (1) the Design-Builder; (2) any entity that is a partner or member
of the entity comprising the Design-Builder; (3) any entity that controls, is controlled by, or is
under common control with the Design- Builder; or (4) any entity that controls, is control led
by, or is under common control with any entity that is part of the Design- Builder. Self -
Performed Work is distinguished from trade work performed by subcontractors unaffiliated
with the Design-Builder or the entities of which the Design-Builder is comprised.
Section 1.18. Services.
The services to be provided pursuant to the Agreement which shall include the Design &
Preconstruction Phase Services and the Construction Phase Services necessary to deliver the
Project.
Section 1.19. Specifications.
The Specifications are that portion of the Contract Project documents consisting of the written
requirements for materials, equipment, construction systems, standards and workmanship for
the Work, and performance of related services.
Section 1.20. Standard Contract Provisions.
The District of Columbia Department of General Services Standard Contract Provisions,
Ge
neral Provisions (Construction Contract s and Architectural/Engineering Services
Contracts), as amended, is attached hereto as Exhibit J and incorporated herein.
Section 1.21. Subcontractor.
Any person, natural or legal, to whom the Design- Builder delegates the performance of any
portion of the Work required by the Agreement. The term “ Subcontractor,” used without a
qualifier, shall mean a subcontractor in direct contractual privity with the Design -Builder.
“Subcontractors at all tiers” shall mean not only those Subcontractors in direct contractual
privity with the Design -Builder and not the Department, but also those performing Work
pursuant to sub- subcontracts, and so on. “ Subcontractors” shall include both those who are
retained to perform labor only and those who are retained both to perform labor and to supply
material or equipment. “Subcontractors” shall also include design professionals who are not
the Design -Builder’s employees and to whom the Design- Builder delegates any part of its
responsibilities under the Agreement, except that references to “trade Subcontractors ” shall
exclude design professionals.
Section 1.22. Substantial Completion.
Substantial Completion shall mean that all of the following have occurred: (1) the construction
and installation work have been completed with only minor punchlist items remaining to be
completed; (2) a temporary certificate of occupancy and all other required permits or approvals
have been obtained; (3) all O&M have been finalized, submitted, and approved; and must be
submitted to the Department six months prior to Substantial Completion; (4) required trainings
per Turnover Manual have been scheduled within thirty (30) days of the Substantial
Completion Date; the Design-Builder shall provide final videotaped recordings within thirty
(30) days of the Substantial Completion Date ; (5) Draft Warranties have been submitted and
approved; (6) all clean-up required by the Agreement has been completed; (7) the Project has
obtained DC Department of Health approval of the kitchen and health suite; (8) the Project site
has been deep cleaned and cleared of any debris; (9) the Project is ready for the Department
and Client Agency to use it for its intended purpose; (10) all equipment, supplies, materials and
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items to be installed have been installed in accordance with the manufacturer’s specifications
and industry standards and have undergone and passed the requisite testing and inspections ;
and (11) commissioning is complete, and a final punchlist is documented with completion dates
established. “Minor punchlist items” are defined for this purpose as items that, in the aggregate,
can be completed within thirty (30) days without interfering with the Department or Client
Agency’s normal use of the Project.
Section 1.23. Substantial Completion Date.
The date established herein by which the Design-Builder shall achieve Substantial Completion.
The Substantial Completion Date may be modified only by Change Order, Contract
Modification, or Change Directive in accordance with the Agreement.
Section 1.24. Work.
The term “Work” refers to any and all work done in the performance of the services
necessary, at any and all phases of the Agreement, to Fully Complete the Project.
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GENERAL PROVISIONS
Section 2.1. Letter Contract
If a Letter Contract was executed, t he Parties acknowledge that certain of the investigation,
design, and preconstruction activities described in Article 3 of this Agreement were performed
pursuant to the Letter Contract between the Parties dated [DATE]. Pursuant to the terms of the
Letter Contract, upon execution of this Agreement by the Department (the “Agreement
Effective Date”), the Letter Contract shall be incorporated into and shall merge into this
Agreement. The Parties agree that any services provided or work performed pursuant to the
merged Letter Contract, and prior to the Agreement effective Date, shall be governed by the
terms and conditions of this Agreement.
Section 2.2. Term and Termination
The period of performance under this Agreement shall commence from the date of execution
of the Contract by the Department, unless the Department executes a Letter Contract, in which
case the period of performance shall commence from the date of execution of the Letter
Contract, and shall terminate upon the expiration of the Administrative Term or upon
termination by the Department pursuant to Articles 5 and 6 of the Standard Contract Provisions
(Construction Contracts) and Article 8 of the Standard Contrac t Provisions (Architectural &
Engineering Services Contracts).
Section 2.3. Relationship of Parties.
The Design -Builder accepts the relationship of trust and confidence established with the
Department by this Agreement, and covenants with the Department to furnish the Design-
Builder’s reasonable skill and judgment and to cooperate with the Program Manager in
furthering the interests of the Department. The Design- Builder shall use its best efforts to
perform the Work and complete the Project in an expeditious and economical manner
consistent with the interests of the Department. The Department shall endeavor to promote
harmony and cooperation among the Department, Design- Builder, Program Manager, and
other persons or entities employed by the Department for the Project. In performing its duties
under this Agreement, the Design-Builder shall at all times use the standard of care used by
Design-Builders that construct projects similar to the Project in type, size , and scope in large,
urban areas. Whenever the term “competent” is used herein to describe the Design -Builder’s
actions or duties, that term shall re fer to the level of competence customarily possessed by
those Design-Builders that construct projects similar to the Project in type, size , and scope in
large, urban areas.
Section 2.4. Confidentiality of Information
The Design-Builder shall assure and keep all information and data obtained throughout the
performance of the Project whether related to the Agreement, the Work in all of its aspects, the
Department, and the Department’s employees confidential, during and following the term of
the Agreement and shall not use the information in connection with any other matters; nor shall
it disclose any such information to any other person, firm or corporation, unless disclosure is
required pursuant to a court order, subpoena or other regulatory authority. The Design-Builder
shall not be divulged of confidential information without the individual’s and the Department’s
written consent and only in accordance with the District’s or Federal government’s laws, codes
and regulations. The Design -Builder and any subcontractors who utilize, access, or store
personally identifiable information as part of the performance of this Agreement are required
to safeguard this information and immediately notify the Department of any breach or
suspected breach in the security of such information. The Design-Builder and all subcontractors
Page 11 of 121
shall allow the Department to both participate in the investigation of incidents and exercise
control over decisions regarding external reporting. The Design -Builder, Subcontractor, and
their respective employees working on this Project may be required to sign a confidentiality
statement.
Section 2.5. Project Description.
The Project includes full design and construction services for upgrades to the existing school
while the school is occupied. The upgrades shall include HVAC replacement, electrical
heavy-up, new ceilings, and lights.
This Project shall consider the DC Building Energy Performance Standards (“BEPS”) program
and the Carbon Free DC 2050 initiative. The goal of these programs is to make the District
carbon-neutral by 2050. The net -zero emissions ( “NZE”) requirement and the overarching
quest toward electrification shall be factored into the design. The newly installed systems and
accouterments are expected to be maintained and incorporated into the modernized building.
It is anticipated that the HVAC systems in the modernized building will be a geothermal system
utilizing a well field located at the adjacent athletic field. The systems designed under this
project should be designed to be converted to ground-source systems in the future.
DGS anticipates the construction portion of the Project to span over two or three summers.
However, the Contractor shall anticipate that some work shall be performed during the school
year while the building is occupied. As such, the Project shall be designed and scheduled to be
implemented in phases based on spaces available to perform work, equipment availability, and
task duration. Stop-gap measures will be required to improve occupant comfort, including
installing controls on the existing steam system to operate based on the outdoor temperature
(outdoor temperature reset). The new HVAC systems should be hydronic with a central plant
designed to accommodate a chiller, boiler, heat exchanger, well field manifold, pumps, etc., as
required. Forced-air terminal units shall be ducted to architectural air devices and diffusers.
Ventilation shall be provided by Dedicated Outdoor Air Systems ( “DOAS”) specified with
energy recovery and designed with ducted or plenum returns. The big- box spaces shall be
served by dedicated, variable volume ERUs and AHUs. In addition, conditioning of ancillary
areas like restrooms, stairwells, and MDF/IDF rooms shall conform to DCPS standards
Generally, the Design -Builder’s responsibilities shall include, but will not be limited to, the
following:
a) To confirm the design and construction of the Project in accordance with the RFP
Documents, including all applicable attachments.
b) To provide all design, construction, and construction management services necessary
to implement the goals of the Project inclusive of, but not limited to, the following: (i)
civil, architectural, electrical, structural, and mechanical design services as required for
the Project; and (ii) construction management services inclusive of budgeting, value
engineering (“Value Engineering”), scheduling, Project phasing, Project
administration, management, and coordination of subcontractors.
c) To furnish and provide all materials, management, personnel, equipment, hazardous
material abatement, supervision, labor and other services necessary to complete the
Project.
d) To provide the necessary design, consultants and documentation for all permitting
approvals.
e) To provide move coordination and logistics support for the Project.
Page 12 of 121
Project Goals
The Project has the following goals:
a) Design and install new, fully functional, high-performance, reliable, low-maintenance
HVAC systems throughout the facility, including all occupied, common, assembly,
and kitchen spaces.
b) Design with considerations of the District’s pledge to reach net-zero carbon emissions
by improving building efficiency and eliminating the use of fossil fuels for heating and
cooking.
c) Design systems that comply with USGBC LEED BD+C: Schools v4, Energy &
Atmosphere, and Indoor Environmental Quality goals for energy, acoustics, and IAQ.
d) The Design -Builder shall submit at least three system concepts for evaluation.
Concepts shall include an analysis of the first cost, life -cycle costs, constructability,
maintainability, occupant environmental comfort, IAQ, and contribution to net zero
energy goals. The Design- Builder shall demonstrate how each system complies with
ASHRAE 90.1, 55, and 62.1.
e) Work with the Department’s commissioning agent to complete the commissioning
process in compliance with the DC Green Construction Code. The commissioning
agent will be on board during the design phase and shall review the design documents
along with DGS/DCPS.
f) Install a new integrated BACnet BAS system combined with the Delta Controls
enteliWEB, or equal, platform for remote monitoring and control. Connect all new and
existing HVAC equipment, exhaust fans, lighting controls, water, gas, and electrical
meters to BAS system.
g) Design and install a new switchboard including but not limited to a sufficient number
of compartments to allow removal and replacement of the outdated 3-disconnect
switches and for additional compartment spaces for the new HVAC systems and future
growth.
Performance Criteria
The scope of the Project generally includes, and the Contractor shall:
HVAC
a) Visit the site and familiarize themselves with the P roject, site conditions, working
conditions, and considerations that will affect both the construction and post -
construction operation and maintenance of the school. The Contractor is encouraged to
highlight any elements noted during the site visit and note them in their proposal.
Contractor is encouraged to submit questions for clarifications during the procurement
stage.
b) Be responsible for providing full-service architectural and engineering design services
sufficient to describe the work, gain approval from DGS and DCPS, and obtain building
and trade permits. All design documents shall be prepared by the Contractor’s duly
licensed architects and engineers. Contractor will be provided CAD backgrounds based
on the 2011 Phase 1 Modernization project.
c) The Contractor’s design team lead must be a firm specializing in architecture with
structural, M/E/P, and other disciplines hired as sub-consultants.
d) Provide such preconstruction services as are necessary to advance the project properly.
These services shall include but are not necessarily limited to scheduling, estimating,
and ordering long-lead materials.
Page 13 of 121
e) A detailed phasing plan shall be developed and included in the contract documents to
ensure the work is executed per the DGS agreed plan. The plan shall consist of all
phases of construction and testing, adjusting, balancing, and commissioning. The
design for required temporary cooling, heating, and ventilation shall be included with
the contract documents.
f) Minimize new equipment interference with existing solar panel installations. Any
panels shaded by new equipment must be relocated to maintain overall system capacity.
g) Work with the Department’s commissioning agent to complete the commissioning
process in compliance with the DC Green Construction Code. The commissioning
agent will be on board during the design phase and shall review the design documents
along with DGS/DCPS.
h) Be responsible for initial startup of all equipment, providing an overview of operation
to DGS personnel responsible for maintaining the new equipment, and providing
Operations and Maintenance manuals for the Contractor-furnished equipment.
i) Install a new integrated BACnet BAS system combined with the Delta Controls
enteliWEB, or equal, platform for remote monitoring and control. Connect all new and
existing HVAC equipment, exhaust fans, lighting controls, water, gas, and electrical
meters to BAS system.
j) Remove and replace ceiling tile, ceiling grids, light fixtures, low voltage devices,
cameras, and other accouterments located near the ceiling place to the extent necessary
to execute the work. Replace with matching material.
ELECTRICAL SERVICE
a) Survey all the existing electrical systems and equipment.
b) Design and install a new switchboard including but not limited to a sufficient number
of compartments to allow removal and replacement of the outdated 3- 3-disconnect
switches and for additional compartment spaces for the new HVAC systems and future
growth.
c) Furnish and install wire troughs, pull boxes, feeder wiring, branch wiring, and
connections for the above -listed new replacement equipment in order to complete the
electrical upgrade and fully energize the new replacement equipment.
d) The Contractor shall design permittable, construction- ready electrical replacement
design documents, and construct the electrical replacement work in accordance with
the performance criteria, drawings, specifications, and e xhibits set forth herein. The
Contractor shall develop design and permit documents in order to obtain any required
permits and be able to complete the scope of work which is described herein. Once the
electrical designs have been substantially completed, the Contractor is responsible for
a thorough review of the developed d rawings and s pecifications (“Drawing and
Specifications”) to identify P roject-critical design omissions that can reasonably be
inferred by a qualified electrical installer and include those items in the drawings.
e) The Contractor shall arrange and pay for P EPCO to temporarily shut down the main
incoming service in order to safely execute the electrical work. Contractor shall submit
written advance notice to DGS and confirm DGS’ approval of the temporary outage so
that DGS is able to effectively and efficiently communicate and coordinate with DCPS.
Contractor shall minimize the duration of the electrical outage to the greatest extent
possible. The Contractor shall include in their proposal the cost of all after-hours work
in order to execute the outage.
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The Design -Builder shall provide the Department with a GMP based on the Design
Development Documents. The District anticipates an e arly start agreement (“ESA”) and
subsequent one GMP package. The process by which the GMP will be formed is more fully
described in this Agreement. Construction and construction administration services for early
authorized work may also occur.
During the Construction Phase, the Design-Builder shall construct the Project and provide
construction administration services. During the Construction Phase, the Design-Builder shall
be required to cause the Work to be completed in a manner consistent with the design
documents and phasing plan approved by the Department and shall provide all labor, materials,
insurance, bonds, and equipment necessary to fully complete the Project in accordance with
the drawings, specifications, Project S chedule, and Project B udget that are issued for the
Project. The Design- Builder shall be responsible for paying for and obtaining all necessary
permits and to pay all necessary fees for utility connections and the like.
Section 2.6. Program Manager.
The Department has engaged a Program Manager to provide certain program management
func
tions. Such Program Manager shall, at all times, be acting solely for the benefit of the
Department, not the Design-Builder. The Design-Builder hereby acknowledges and agrees
that only a duly authorized and designated Contracting Officer shall have the authority
to issue Change Orders , Contract Modifications , or Change Directives on the
Department’s behalf. As of the date that this Agreement is executed, the Department’s
duly authorizing Contracting Officers are set forth in Exhibit I.
Section 2.7. General Description of Design-Builder’s Duties.
Generally, the Design -Builder shall perform the S ervices in a professional workmanlike
manner. The Design-Builder shall supply and furnish at the location where the Work is to be
performed all design service, labor, materials, equipment, tools, services, and supervision, and
shall bear all items of expense, necessary to complete and satisfactorily perform this
Agreement, except such items that the Department, in this Agreement, specifically agrees to
supply or furnish to or for the use of Design-Builder. Any labor, materials, equipment, tools,
services, or supervision not specifically described in this Agreement, but which may be fairly
implied as required thereby or necessary to properly complete the Work, shall be deemed
within the Scope of the Work and shall be provided by the Design-Builder at Design-Builder’s
sole expense.
The Design-Bui lder will be required to work with the Department and the Project stakeholders
through a collaborative design process to advance the drawings and specifications (Exhibit A)
to a fully realized Project in accordance with the available Project budget. The Design-Builder
will be required to engage in extensive pre-design and preconstruction efforts to ensure that the
design is developed in a manner consistent with the Department’s goals for the Project (e.g.,
programmatic, budgetary, schedule and quality), to develop a comprehensive Project phasing;
to solicit competitive trade bids for the construction work and to develop an acceptable GMP
and corresponding scope and schedule for the work, and to implement the requisite
construction and other work necessary no later than the Substantial Completion Date. The
Design-Builder will be required to provide move coordination and logistics support. The
Design-Builder shall be responsible for all items of cost except for those items set forth in
Section 9.7 of this Agreement and will be required to provide a “turn- key” Project ready for
occupancy by DCPS.
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Section 2.8. Warranties and Representations
1. All disclosures, representations, warranties, and certifications the Design -Builder
makes in its proposal in response to the RFP shall remain binding and in effect
throughout the term of the Agreement. The Design- Builder reaffirms that all such
disclosures, representations, warranties, and certifications are true and correct.
2. If any disclosure, representation, warranty or certification the Design-Builder has made
or makes pursuant to the RFP or the Agreement, including, without limitation,
representations concerning the Design-Builder’s construction or design experience and
qualifications, claims or litigation history or financial condition, is materially
inaccurate, that shall constitute a material breach of the Agreement, entitling the
Department to any and all available remedies.
3. The terms and conditions of this Section 2.8 s hall apply during both the Design &
Preconstruction and Construction Phases.
Section 2.9. Re sponsibility for Agents and Contractors.
At all times and during both the Design & Preconstruction and Construction Phases, the
Design-Builder shall be responsible to the Department for any and all acts and omissions of
the Design -Builder’s agents, employees, subcontractors , sub-subcontractors, material
suppliers, and laborers, and the agents and employees of the subcontractors, sub-
subcontractors, material suppliers, and laborers performing or supplying Work in connection
with the Project.
Section 2.10 Bu ilding Information Modeling. Building Information Modeling (“ BIM”) is
required to be used throughout the lifecycle of the Project, including all Project phases from
Project planning and concept design through construction, as -built, and into facilities
management. The BIM requirements are provided as Exhibit S. It is expected by the
Department that all team members are to be committed to the use of BIM in the Project, share
their ideas of BIM expertise with the team, provide BIM data as requested by other team
members, look for cost savings and schedule improvements during the entire Project duration,
and endeavor to leave as a legacy a fully updated, as-built, facility management ready building
information model.
Page 16 of 121
DESIGN-BUILDER’S DESIGN & PRECONSTRUCTION SERVICES
Section 3.1. Preconstruction Services.
During the design and preconstruction phase, the Design- Builder, in consultation with the
Department, shall: (i) develop conceptual plan and cost estimates; (ii) develop a draft final
conceptual site plan/response and cost estimate; (iii) prepare and submit soft and hard copies
of the complete set of 35% Schematic Design Documents; (i v) prepare and submit soft and
hard copies of the complete set of 60% Design Development Documents, Specifications and
Design-Builder’s cost estimate and schedule; (v) prepare soft and hard copies of the complete
set of 95% Construction Documents, Specifications and Design- Builder’s cost estimate and
schedule; (vi) review existing condition a ssessment and recommendation; and (vii) obtain all
necessary building permits to support the Project Schedule.
Without limiting the generality of the foregoing, during the Preconstruction Phase, the Design-
Builder shall: (i) work with its Architect and any design consultants to advance the design for
the Project in consultation with the Client Agency, the Department, and its Program Manager;
(ii) obtain bids from trade subcontractors to perform the work described in the Design
Development Documents and provide bid tabulations to the Department; (iii) engage in any
Value Engineering and scoping exercises necessary to return the cost of the work to the Project
Budget; (iv) engage in preconstruction activities, including identifying any long-lead items; (v)
develop a GMP proposal for the Project; and (vi) enter into a GMP for the Project. Throughout
the Design & Preconstruction Phase, the Design-Builder shall schedule and attend regular
meetings with the Department, the Program Manager, and the Design- Builder’s
Architect/Engineer.
Section 3.1.1. (Reserved).
Section 3.1.2. Baseline Schedule. Within ten (10) days after the Preconstruction NTP
is issued, the Design- Builder shall prepare and submit a Baseline Schedule for the
Project (the “Baseline Schedule”). The Baseline Schedule shall be subject to review
and approval by the Department , and the Design- Builder shall incorporate such
adjustments to the Baseline Schedule as may be requested by the Department. The
Baseline Schedule shall be prepared in a critical path method (“CPM”) in a sufficient
level of detail to permit the Department and the Design-Builder and any other affected
parties to properly plan the Project. The Baseline Schedule shall show: (i) key design
milestones and bid packages; (ii) release dates for long-lead items; (iii) release dates
for key subcontractors; and (iv) Substantial and Final Completion Dates. The Baseline
Schedule shall include durations and logic ties for all relevant Project activities. The
Baseline Schedule must also be submitted in Primavera 6 native format and shall be
updated by the Design-Builder, at a minimum, on a bi-weekly basis. In addition to the
bi-weekly Project schedule, a weekly 3-week look ahead schedule shall be required.
The P roject schedule is attached hereto as Exhibit B .
Section 3. 1.3 Concept Design . No later than twelve (12) weeks after the
Preconstruction NTP is issued, the Design-Builder shall prepare and submit a proposed
concept design. As part of the concept design phase, the Department requests three (3)
concept options or alternatives. Each of the concept designs shall contain at least the
level of detail contemplated in industry best practices for a concept design. The design
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submittal shall specifically identify any deviations from the Educational Specifications
and shall explain the rationale and cost implications associated with such deviation. The
Department shall have the right to disapprove the concept design submittal for any
reason. Following review of the concept design submissions by DCPS and the
Department, the Department shall approve a final concept design. The Design-Builder
shall revise the concept design submission as necessary to incorporate comments,
feedback and other direction provided by DCPS and the Department. The Design-
Builder’s pricing shall assume that such revisions will be required, and such revisions
shall not entitle the Design-Builder to additional compensation.
Section 3.1.4 Preliminary Budget Estimate. Concurrently with the delivery of the
concept design, the Design-Builder shall submit a detailed cost estimate of the proposed
design (such estimate, the “ Preliminary Budget Estimate ”). With regard to building
systems (i.e. roofs, doors, HVAC, security, IT, etc.), the Preliminary Budget Estimate
shall be prepared on a “system” basis that identifies the key building systems or
functions and allocates an estimated cost for each such system. The Design-Build Fee,
the cost of general conditions, and contingencies shall be broken out into separate line
items. The primary purpose of the Preliminary Budget Estimate is to aid the Department
and the Client Agency in understanding the costs associated with key elements of the
Project to better prioritize and manage the use of the funding allocated to this Project.
All estimates shall be broken out into three categories: renovation, new construction,
and site work, where applicable.
Section 3.1.5 Baseline Budget and Program. The Department shall provide the
Design-Builder with a baseline budget and program and comments on the concept
design. Such approval shall be provided (or signed by) the Department’s Deputy
Director for Capital Construction (the “Deputy Director”). In the event the Design-
Builder does not receive such approval within fourteen (14) days after submitting the
Preliminary Budget Estimate, it shall so advise the Program Manager (“PM”), the
Deputy Director, and the Contracting Officer in writing of such failure and request
direction. If the Design-Builder fails to provide such notice, the Design-Builder will be
proceeding at its own risk and will be responsible for any redesign costs associated with
budget revisions.
Section 3.1.6 Construction Management Plan. The Design -Builder shall submit a
draft of its construction management and project phasing plan (“Construction
Management Plan”) twenty-eight (28) days after the Preconstruction NTP is issued to
include, but is not limited to, noise control, hours for construction and deliveries, truck
routes, trash and debris removal plan, traffic and parking control, communications
procedures, emergency procedures, quality control procedures, dust control, public
street cleaning and repair, planned occupancy of public ways, erosion control, tree
protection plan, vibration monitoring, existing and adjacent building surveys plan,
temporary fire protection measures, Project signage, pest control, construction staging
plan, and construction logistics plan.
Section 3.1.7 Di sincentive Fee for Failure to Timely Provide Deliverables . The
Design-Builder acknowledges that the Department is engaging the Design- Builder to
provide an extensive level of preconstruction support services to minimize the potential
for cost overruns, schedule delays, or the need for extensive Value Engineering/re -
design late in the Project and that the deliverables required under this Section 3.1 are
key to identify the value of such services. In the event the Design- Builder fails to
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deliver any of the deliverables required in Section 3.1 (a nd unless such failure is the
result of any event of Force Majeure), the Design- Builder shall be subject to a
disincentive fee in the amount of Seven Thousand Five Hundred Dollars ($7,500.00)
plus Five Hundred Dollars ($500) per day after receiving written notice from the CO
of failure to submit such deliverables.
Section 3.1.8 Additional Preconstruction Services. In a ddition to those items
enumerated above, the Design- Builder shall provide such preconstruction services as
are necessary to properly advance the Project. These services shall include, but are not
limited to, scheduling, estimating, shop-drawings, the ordering of long-lead materials,
condition assessments, conservator studies, archeological studies, recommended
testing, additional geotechnical testing, and monitoring of historic assets.
Section 3.1.9 (Reserved)
Section 3.1.10 Des ign Services; Design Reviews . The Design-Builder shall meet with the
representatives of the Department and Client Agency throughout the Design & Preconstruction
Phase as the design progresses in order that these representatives and other stakeholders can
have input in and approve the design direction at appropriate times. The Design-Builder shall
ensure that the design is developed in a manner consistent with the Project budget, i.e.,
designed-to-budget, as well as the programmatic requirements and the Department’s other
requirements Project set forth and attached as Exhibit A. The Project shall be designed in such
a way so as to achieve, at a minimum, LEED for SCHOOLS – GOLD principles. All Design
Documents shall be prepared by the Design -Builder’s duly licensed architects and engineers.
The GMP basis documents and all interim design submissions shall be subject to review and
approval by the Department, and the Design-Builder shall be required to revise these Project
documents to address concerns raised by the Department and/or other Project stakeholders and
such revisions shall not entitle the Design-Builder to an increase in the Design Fee.
Sect
ion 3.1.10.1 Design Management. During the Design and Preconstruction Phase,
the Design-Builder, in consultation with the Department, shall: (i) develop conceptual
plan and cost estimates; (ii) develop a draft final conceptual site plan/response and cost
estimate; (iii) prepare and submit soft and hard copies of the complete set of 35%
Schematic Design Documents; (iv) prepare and submit soft copies of the 50% Design
Development Documents and budget, approximately half way through the Design
Development phase as a progress set to the Department; (v) prepare and submit soft
and hard copies of the complete set of 60% Design Development Documents,
Specifications and Design-Builder’s cost estimate and schedule; (vi) prepare soft and
hard copies of the complete set of 95% Construction Documents, Specifications and
Design-Builder’s cost estimate and schedule; (vii) review existing condition assessment
and recommendation, and (viii) obtain all necessary building permits to support the
Project Schedule. Without limiting the generality of the foregoing, during the
Preconstruction Phase, the Design-Builder shall: (i) work with its Architect and any
design consultants to advance the design for the Project in consultation with the Client
Agency, the Department, and its Program Manager; (ii) obtain bids from trade
subcontractors to perform the work described in the Design Development Documents
and provide bid tabulations to the Department; (iii) engage in any Value Engineering
and scoping exercises necessary to return the cost of the work to the Project Budget;
(iv) engage in preconstruction activities, including identifying any long-lead items; (v)
develop a GMP proposal for the Project; and (vi) enter into a GMP for the Project.
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Throughout the Design & Preconstruction Phase, the Design-Builder shall schedule and
attend regular meetings with the Department, the Program Manager, and the Design-
Builder’s Architect.
Between the time the Preconstruction NTP is issued and the time the GMP is accepted
by the Department, the Design-Builder shall use commercially reasonable best efforts
to ensure that: (i) the design evolves in a manner that is consistent with the
Department’s budget and programmatic requirements, as the same were defined and
established by the Department at the end of the concept design; (ii) the design work is
properly coordinated; and (iii) the required design deliverables are produced on or
before the dates contemplated in the Project Schedule. As part of this undertaking, the
Design-Builder shall provide the following:
Section 3.1.10.2 Schematic Design . The Design -Builder shall prepare a schematic
design that is a logical development of the approved concept design and is consistent
with the Project Schedule, Project B udget, and programmatic requirements. The
schematic design shall contain at least the level of detail contemplated in a schematic
design under industry best practices. The design submittal shall specifically identify
any deviations from the approved concept design and shall explain the rationale, cost ,
and time implications associated with such deviation. The Department shall have the
right to disapprove the schematic design submittal for any reason. Following a review
of the schematic design submission by DCPS and the Department, the Design-Builder
shall make revisions to the schematic design submission as necessary to incorporate
comments, feedback, and other directions provided by DCPS and the Department. The
Design-Builder’s pricing shall assume that such revisions will be required, and such
revisions shall not entitle the Design -Builder to additional compensation. The
requirements and tasks for the Schematic Design are referenced in Exhibit A.
Section 3.1.10.3 Schematic Budget Update. Concurrent with the submission of the
schematic design, the Design-Builder shall submit a budget update. The budget update
shall be submitted in the same format as the preliminary budget estimate and shall show
variations from the preliminary budget estimate. The Design- Builder shall include a
cost estimate and value engineering analysis and detailed recommendations for project
savings (even if the project is not over budget). To the extent the budget update shows
an overrun from the approved budget, the Design-Builder shall submit value
engineering (not scope reductions, but true value engineering that allows the design to
meet all Project requirements within budget) suggestions that would return the Project
to budget. Only the Department shall have the authority to increase the Project budget,
and absent such direction, the Deign-Builder shall proceed on the assumption that the
budget remains as originally directed by the Department.
Section 3.1.10.4 Constructability/Sole Source/Long-Lead Time Memorandum.
Concurrently with the Schematic Design Budget Estimate, the Design- Builder shall
prepare a memorandum identifying key construction concerns related to the Project.
Such memorandum shall: (i) assess the constructability issues related to the Project,
including site logistics; (ii) identify any items where the design is predicated on a
single manufacturer and, if so, identify at least two (2) comparable products; and
(iii) identify any long-lead delivery items that could adversely affect the sched ule
contemplated in this RFP. To the extent any such long- lead items are identified, the
memorandum shall make recommendations for addressing such items.
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Section 3.1.10.5 Entitlements. The Design-Builder shall prepare, as part of the design
and pre-construction phase, such materials and make such presentations as are
necessary to obtain the required land use and entitlement approvals. Approvals may be
required from but not limited to: (i) the Office of Zoning, (ii) Office of Planning (“OP”),
and (iii) the Commission of Fine Arts (“CFA”).
Section 3.1.11 Design Development Phase & Early Release Packages.
The Design -Bui lder shall prepare a set of design development documents (“Design
Development Documents”) that is a logical development of the approved schematic design and
is consistent with the Department’s schedule, budget, and programmatic requirements. Prior to
the full Design Development Submission, the Design- Builder shall submit a progress set of
drawings, specifications, and budget at the half-way point through the Design-Builder’s Design
Development phase. The full Design Development Documents shall contain at least the level
of detail contemplated in industry best practices for design development documents. The design
submittal shall specifically identify any deviations from the approved schematic design and
shall explain the rationale and cost implications associated with such deviation. The Design -
Builder shall include a cost estimate and Value Engineering analysis and detailed
recommendation for Project savings (even if the P roject is not over budget). The Design -
Builder shall provide maintenance and repair cost services, which includes conducting a 40-
year life cycle cost analysis, which includes a detailed list of replacement costs, maintenance
costs, an estimate of repair costs, anticipated energy costs, and a list of other relevant life cycle
costs. The Design-Builder shall further refine and expand upon the Maintenance and
Operations Plan that was submitted in the Schematic Submission. The Department shall have
the right to disapprove the Design Development Documents submittal for any reason. The
requirements and tasks for Design Development are referenced in Exhibit A.
Section 3.1.11.1 Design Development Submission. The Design-Builder shall prepare
the design development submission for review and comment by the Client Agenc ies
and the Department. Such design development submission shall include the elements
and information listed below:
The design development submittal shall include at least, but not limited to, the
following:
a) Detailed and dimensioned plans, wall sections, building sections, and
schedules;
b) Draft Specifications for materials, systems, and equipment;
c) Complete code compliance analysis and drawing;
d) Space-by-space equipment layouts for key spaces. As part of the design
development phase, the Design- Builder and/or the Design-Builder’s
architect and any design consultants shall confer with representatives from
DCPS and the Department regarding these layouts to confirm that they are
acceptable to DCPS;
e) A final design and layout for FF&E;
f) An interior finish schedule;
g) Preliminary designs for all building system upgrades, including low
voltage/AV/IT. With regard to HVAC systems, the submission should
include: (i) a detailed description of the proposed mechanical systems; (ii)
their general layout, including ‘Single-Line Diagrams’ (aka ‘Riser
Diagrams’); and (iii) any required load calculations. The HVAC design
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solution would also include preliminary layouts of other major components
of the HVAC system, including the type and location of energy recovery
units (“ERUs”), variable air volume (“VAV”) boxes, condensing units, and
any related system appurtenances;
h) Updated LEED scorecard;
i) Present the design to CFA, OP, HPO, and other regulatory agencies as
required;
j) Register the Project with the U.S. Green Building Council (“USGBC”) to
obtain LEED certification and pay all registration fees;
k) Register the Project with ILFI or U.S. Green Buildings;
l) Register the Project with I nternational Well Building Institute (“IWBI”) for
WELL Gold Certification;
m) Participate in SIT Meetings, and community meetings as required by
DGS/DCPS;
n) Coordinate with the DC HPO and other agencies, commissions, groups, etc.
as required to assess and determine historic and/or archeological
significance and requirements. Attend meetings and hearings if necessary;
o) Respond in writing to all DCPS and DGS comments on plans;
p) Prepare a presentation and provide a minimum of three (3) presentation
boards for each community meeting and present/display onsite. Presentation
boards shall be in full color and include at least four (4) 3-D renderings;
Presentations shall also include a digital slide presentation;
q) Coordinate final utility plans as required;
r) Act as scribe for all design-related meetings. Distribute meeting minutes to
all attendees;
s) Baseline Schedule monthly updates in the format set forth in the RFP; and
t) Prepare and submit one (1) electronic copy in PDF of Design Development
Documents including detailed specifications, Cost Estimate, and schedule
to the District staff for review and approval. (60% plan review).
Components to include, but are not limited to:
i. Site plans, paving layouts, traffic circulation, lighting, signage, and
utilities;
ii. Floor plans, Structural, Civil, Architectural, mechanical, electrical,
and plumbing (“MEP”), Fire Protection and landscaping, etc.;
iii. Exterior elevations, rendering and color palette;
iv. Building sections and details as required;
v. Interior elevations, casework and millwork elevations as required;
vi. Playground equipment, if applicable;
vii. Stormwater management;
viii. Food service or other equipment as required;
ix. LEED Information as appropriate;
x. WELL Score Card;
xi. Final Draft of the “Percent for Art” Public Art Package to be used as
the scope for the Artists’ RFP;
xii. Cost Estimate;
xiii. Value Engineering analysis and detailed recommendation for
Project savings (even if the Project is not over budget);
xiv. Energy Report that includes all recommended strategies applicable
to achieving the energy consumption goals (EUI requirements);
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xv. Maintenance and Operations Plan; and
xvi. Quality Control Plan.
Section 3.1.11.2 Early Release Packages /Long Lead Materials/Abatement &
Demolition.
Section 3.1.11.2.1 Abatement & Selective Demolition. Once the schematic design has
been approved, the Department may release the Design -Builder to commence
hazardous material abatement and interior demolition, or other early activities, as
applicable. It is envisioned that this work may be released in advance of the GMP.
Section 3.1.11.2.2 Long Lead Materials. The Department will release funding for
long-lead items once the Design Development Documents have been approved. If the
Design-Builder believes an earlier release is required in order to meet the Project
Schedule, it shall advise the Department and make a recommendation as to the
requested release date. Any decision to authorize an early funding release shall be made
by the Department in its sole and absolute discretion.
Section 3.1.11.2.3 Permits. The Design-Builder shall be responsible for preparing and
submitting all of the required permit applications that are necessary to complete the
Project. The Design-Builder shall develop a list of the required permits and shall track
the progress of all such permits through the review process. The Design- Builder shall
update the Department with the status of each permit that is required for the Project.
The Design-Builder shall engage such permit expediters as the Design -Builder deems
necessary or appropriate in light of the Project’s schedule. The Design-Builder shall be
encouraged to participate in DOB’s program for accelerated plan reviews and permit
approval program as part of the permit allowance included in this Contract. The Design-
Builder shall provide the resources necessary to support these requirements.
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Article 4 – FORMATION OF GMP PROPOSAL
Section 4.1 General.
The Design -Builder shall provide the Department with a GMP based on the Design
Development Documents. The District anticipates an ESA and subsequent one GMP package.
During the Design & Preconstruction Phase, the Design- Bu ilder shall cause the Design -
Builder’s Architect to prepare the GMP Basis Project Documents. Based upon the GMP Basis
Project Documents, the Design- Builder shall propose a GMP (referred to as the “GMP
Proposal”) which shall be submitted in accordance with this Article. The Design-Builder
acknowledges and understands that the GMP Basis Project Documents will be incomplete at
the time it submits its GMP Proposal. Although complete construction Project Documents will
not be available and many details will not be shown on GMP Basis Project Documents or will
otherwise need to be adjusted, the GMP proposed in the Design-Builder’s GMP Proposal shall
be intended to represent the Design-Builder’s offer for the Final Completion of the Project. If
the Design-Builder’s GMP Proposal is acceptable to the Department, it shall be memorialized
in form of an amendment to this Agreement (such amendment, the “GMP Amendment”). Such
amendment shall be in the form of Exhibit L attached hereto.
As part of the GMP Amendment, the Design- Builder shall certify that the GMP established
thereby: (i) contains sufficient amounts to perform all Work necessary for the Final Completion
of the Project; and (ii) contains sufficient amounts to provide and construct any items or
facilities that are not contained in the GMP Basis Project Documents, but which are necessary
for a fully functioning facility that meets the programmatic requirements established for the
Project. The Design-Builder will further covenant and agree in the GMP Amendment that it
will perform all of the construction work necessary for the Final Completion of the Project,
including, without limitation, aspects of the Work that are not shown on the GMP Basis Project
Documents, but which are a logical development of the design intent reflected in the GMP
Basis Project Documents, for an amount not to exceed the GMP.
Section 4.2 Review of GMP Basis Project Documents.
The Department has selected the Design-Builder, in large part, because of its special expertise
in constructing similar projects. Before submitting its GMP , the Design-Builder shall review
the GMP Basis Project Documents for accuracy, constructability, and completeness and shall
bring such deficiencies to the attention of the Department and shall cause its Architect to
address any such deficiencies. To the extent that any such deficiencies in the GMP Basis
Project Documents could have been identified by such review by a competent Design-Builder,
such deficiencies shall not be the basis for a change in the GMP or delaying the Project
Schedule.
Section 4.3 Contingency.
The Cost of the Work shall include a contingency, which shall be a sum established by the
Department and the Design-Builder to cover, among other things costs necessary to address
scope expansion that is a logical development of the design, issues arising from or as a result
of deficiencies in the GMP Basis Project Documents and other costs which are properly
reimbursable as Cost of the Work but not the basis for a Change Order, such as costs that were
not reasonably foreseeable as of the effective date of this Agreement, including such items as
emergencies, unforeseeable changes in market conditions for materials or labor, or subsurface,
soils or site conditions that were neither known nor reasonably discoverable as of the effective
date of the Agreement (the “Contingency”). During the Construction Phase, the Design-
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Builder shall keep the Program Manager and the Contracting Officer informed as to the status
of the Contingency and shall, at a minimum: (i) advise the Program Manager and Contracting
Officer when draws reach 3% upon the contingency in a timely manager; and (ii) provide the
Program Manager and Contracting Officer with running status of the Contingency balance at
least once every two (2) weeks.
Section 4.4 Trade Bids.
Section 4.4.1 Subcontractors and Suppliers; Bidding Procedures. During the Design &
Preconstruction Phase, the Design- Builder shall seek to develop subcontractor interest in the
Project. Within fifteen (15) days after the completion of the schematic design, the Design-
Builder shall provide to the Department for its review and approval a written submission on
the proposed bidding procedures. Such procedures shall include (i) a list of proposed trade
packages; (ii) a list of trade subcontractors that will be invited to bid on each such package;
and (iii) a narrative description of the process. At least three (3) potential subcontractors shall
be identified for each trade package. A copy of this deliverable must be submitted to both the
Program Manager and the Contracting Officer. In the event the Department does not approve
the proposed bidding procedures within fifteen (15) days after its receipt, such procedures shall
be deemed approved unless the Department advises that such is still under review.
Section 4.4.2 Bidding. Fol lowing the Department’s approval of the Design Development
Documents, the Design-Builder shall manage the trade bidding process in accordance with the
approved bidding procedures and shall use commercially reasonable best efforts to solicit at
least three (3) qualified and bona fide bids for each trade package that has an expected value in
excess of One Hundred Thousand Dollars ($100,000). Trade packages shall not be parceled,
split or divided to avoid the $100,000 threshold. In addition to the information normally
required in such bids, the Design- Builder shall also require subcontractors to provide an
estimate of the percentage of labor hours performed in completing the subcontracted work
which will be performed by District residents. The Design-Builder shall carefully document
its procedures for making available bid packages to potential bidders, the contents of each bid
package, discussions with bidders at any pre-bid meetings, bidders’ compliance with bid
requirements, all bids received, the Design- Builder’s evaluations of all bids, and the basis for
the Design-Builder’s recommendation as to which bidders should be chosen. The Department
shall be afforded access to all such records at all reasonable times so that, among other things,
it may independently confirm the Design-Builder’s adherence to all requirements set forth in
the Agreement, including, without limitation, affirmative action requirements and
subcontracting requirements.
Section 4.4.3 Bid Tab. A s part of the negotiations leading up to the GMP, the Design-Builder
shall provide to the Department tabulations of the trade bids solicited and copies of all trade
bids. In general, the bid tab shall be presented in a tabular format that compares the bids
received and any other relevant information (i.e. exclusions, past performance history, etc.).
The bid tabulation shall include scope assessments and identify required leveling of the trade
submitted. To the extent that the Design-Builder’s award recommendation is based on scoping
adjustments, the Design-Builder shall clearly identify the scoping adjustment and the need for
such adjustments. Such bid tabulation shall include LSDBE utilization information in addition
to price and other information. Such bid tabulations as well as copies of the bids shall be
submitted to the Department’s Program Manager. The Design-Builder represents and warrants
that the bid tabs so submitted shall fairly represent the results of the subcontractor bidding
process and that the Design-Builder shall not misrepresent any such data to the Department or
its Program Manager.
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Section 4.5 Value Engineering.
Based on the trade bids received, the Design-Builder shall prepare a written report of suggested
Value Engineering strategies necessary to reconcile the costs of constructing the Project
Budget, if necessary. The Design-Builder shall meet with the Department’s representatives to
discuss any V alue Engineering and changes in the scope necessary to ensure that the
Department’s schedule and programmatic requirements are met and that the budget is not
exceeded. The Design -Builder shall cause the Design -Builder’s Architect to implement and
price any approved Value Engineering strategies.
Section 4.6 Basis of Guaranteed Maximum Price.
Based on the trade bids, the Design- Builder shall submit a GMP proposal to the Department.
The GMP Proposal shall include the following elements:
a) A list of drawings, specifications, addenda, general, supplementary, and other
conditions on which the GMP is based.
b) A list of unit prices and allowance items and a statement of their basis. The Design -
Builder shall include the following allowances: Permit Allowance ($45,000.00), Utility
Allowance (PEPCO) ($50,000.00), Owner’s Directed Allowance ($255,000.00).
c) Assumptions and clarifications made in preparing the GMP Proposal, noting, in
particular, any exclusions. The assumptions and clarifications shall take precedence
over the drawings and specifications. The Design-Builder shall prepare a separate
memorandum that highlights any differences between the then approved drawings and
the modifications made in the assumptions and clarifications. Such memorandum shall
specifically address any changes in the Project aesthetics, functionality, or
performance.
d) The proposed GMP, including a statement of the detailed cost estimate organized by
trade categories, allowances, contingency, and other items and the fees that comprise
the GMP.
e) An update to the Project’s schedule to which the Design-Builder will agree to be bound.
This update shall be prepared in the same level of detail and in the same manner as the
Baseline Schedule, and without any change, to the Substantial and Final Completion
Dates unless approved by the Department’s Contracting Officer.
f) A subcontracting plan setting forth the names and estimated dollar volume of the work
that will be performed by LSBDEs, as certified by the Department of Small and Local
Business Development, upon which the GMP is based.
g) A summary of Capital Cost vs Operating Cost Eligibility
h) A list of Additive Alternates or Deductive Alternates with defined executable dates, if
any.
i) GMP and any Council Package cost estimate summary shall be broken down into two
categories as applicable: Renovation, and Sitework.
j) Each GMP may include an agreed upon sum as the Design-Builder’s Contingency and
the Owner Allowance (s), each of which shall be identified as a separate line item in
the GMP’s Schedule of Values.
A. Construction contingency
i. The Design -Builder’s Contingency shall be utilized to compensate for the
increased Cost of the Work incurred by the Design- Builder due to unforeseen
circumstances relating to construction of that Project which resulted in an
unavoidable increase in costs, except when deemed the responsibility of the
Department in accordance with this Contract. If the Design-Builder fails to include
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all of the required scope of work in the bid packages, Design-Builder Contingency
may be used to purchase the omitted scope, until the Design-Builder’s Contingency
balance reaches zero or until the balance equals the anticipated subcontractor
modifications. All requests to use the Design- Builder’s Contingency shall be
submitted as a Request for Change Order ( “RCO”). Charges to the Design-
Builder’s Contingency shall not become due and payable until the RCO is approved
in writing by the Department’s Contracting Officer and becomes a Change Order.
If the Design-Builder’s Contingency reaches zero, any cost overruns or charges that
could have been charged to the Design- Builder’s Contingency shall be the sole
responsibility of the Design-Builder.
ii. If bids are received below the applicable line items in the GMP, the surplus will
be added to the Design -Builder’s Contingency for that Project. If bids exceed the
agreed-upon line items in a GMP, the deficiency will be charged to the Design-
Builder’s Contingency for that Project, however, such events shall not be cause to
increase the GMP.
iii. Once all subcontracts anticipated by a GMP have been awarded, including any
self-performed work, the Department may require the Design-Builder to reduce the
Design-Builder’s Contingency to an amount as agreed to by the parties to reflect
the Design-Builder’s risk from that point in the Project forward.
iv. Upon Final Completion of the Project, any remaining Design- Builder’s
Contingency, if any, shall be reduced to zero by a Contract Modification and the
Design-Builder shall have no entitlement to the balance.
B. Owner contingency
i. The Department retains the right to increase the GMP in lieu of charging any
cost to the Owner contingency. Any unused Contingency, whether Department
Contingency or the Design-Builder Contingency, shall be reconciled to a zero
balance via a Contract Modification upon Final Completion.
ii. When the Design-Builder proposes to use the Owner contingency, the Design-
Builder shall prepare an RCO, identifying the amount sought to be charged to the
Owner contingency, the reasons why the amount should be charged to that
Contingency and demonstrating to the satisfaction of the Department that the costs
to be incurred are necessary for the Work and are the responsibility of the
Department. At all times, the Design-Builder shall avoid and mitigate Department
Contingency costs whenever possible. Before payment or as part of an audit, the
Design-Builder and the Department shall have authority to verify the actual costs
incurred. No costs may be charged to the Owner contingency until the RCO is
approved in writing by the Department and becomes a Change Order.
iii. The Owner contingency shall be an amount, determined by the Department,
which will be available to compensate the Design-Builder for the increased Cost of
the Work incurred by the Design-Builder due to a Contract Modification or to other
increases in the Cost of the Work which the Department determines, in its sole
discretion, is its responsibility. The Department may increase, decrease or eliminate
the Owner contingency at any time.
Section 4.7 Department Review of GMP Proposal.
The Design -Builder shall meet with the Department to review the GMP Proposal and the
written statement of its basis. In the event that the Department discovers any inconsistencies
or inaccuracies in the information presented, the Department shall promptly notify the Design-
Builder, who shall make appropriate adjustments to the GMP Proposal, its basis, or both.
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Section 4.8 Department Acceptance of GMP Proposal.
The Department and the Design-Bu ilder shall meet to negotiate the terms of the GMP Proposal.
If the GMP Proposal is acceptable to the Department, the Department shall submit the resulting
GMP Amendment to the Council for the District of Columbia. The GMP shall be subject to
review and approval by the Council for the District of Columbia in the event it exceeds
the previously approved contract value by more than $1 million. In such an event, the
GMP shall not be effective until so approved . Please note that the Council submission and
approval timeline varies, and Offerors should plan for 60-90 days on average for this process,
taking into consideration that Council is not in session over the summer months.
Section 4.9 GMP Amendment.
In
the event the Department and the Design -Builder are unable to agree upon the GMP or the
schedule for the Project, the Department shall have the right to terminate the Agreement and
assume any trade subcontracts held by the Design- Builder. In such an event, the Design-
Builder shall only be entitled to Fifty percent (50%) of the Preconstruction Fee.
Section 4.10 Assignment Upon Failure to Reach GMP.
In the event that the Department and the Design-Builder are unable to agree upon a GMP, the
Department shall have the right to terminate this Agreement, and if requested by the
Department, the Design-Builder shall assign any trade subcontracts and its agreement with the
Design-Builder’s Architect to the Department upon such terms and conditions and at the time
requested by the Department. In such an event, the Design-Builder shall forfeit fifty percent
(50%) of the Preconstruction Fee.
Section 4.11 Certification.
As part of the GMP Proposal submitted in accordance with this Article, the Design-Builder
agrees to specifically acknowledge and declare that the Contract Project Documents are
sufficiently complete to have enabled the Design -Builder to determine the Cost of the Work
therein in order to enter into the GMP Amendment and to enable the Design- Builder to agree
to construct the Work outlined therein in accordance with applicable laws, statutes, building
codes and regulations to the best of Design-Builder’s knowledge, and otherwise to fulfill all its
obligations hereunder. The Design- Builder shall further acknowledge that it has visited the
site, examined all conditions affecting the Work, is fully familiar with all of the conditions
thereon and affecting the same, and, has carefully examined all drawings and specifications
provided to it.
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Article 5 – CONSTRUCTION PHASE
Section 5.1 General.
The Construction Phase shall not commence until the Department issues a NTP for
Construction Phase Services. The Design- Builder shall, through subcontractors or, with the
written consent of the Department, with the Design -Builder’s own forces, perform all of the
Work necessary to construct the Project so that it is complete, safe, and properly built in strict
accordance with the approved Construction Project documents and the other requirements of
this Agreement. Without limitation, the Design-Builder shall provide all of the labor, materials,
tools, equipment, temporary services, and facilities necessary to complete the Project in
accordance with the drawings, specifications, Schedule, and Budget that are issued for the
Project. The Design- Builder shall be responsible for paying for and obtaining all necessary
permits and to pay all necessary fees for utility connections. The Work shall be carried out in
a good and workmanlike, first-class manner, and in a timely fashion. All materials and
equipment to be incorporated into the Project shall be new and previously unused unless
otherwise specified by the Department and shall be free of manufacturing or other defects.
Section 5.1.1 Construction Administration. The Design -Builder, through its
Architect/Engineer, shall provide construction administration services to support the
construction phase of the Project.
The Work shall include, but is not limited to, the following:
a. Manage all aspects of the Project.
b. Manage weekly progress meetings. Site visits are included in the Design-Build Fee.
c. Provide completed Quality Control checklists for implementation of the Project.
d. Review and process shop drawing submissions, RFIs, etc.
e. Prepare meeting notes and records of decisions/changes made.
f. Conduct pre-closeout inspections.
g. Review closeout documents for completeness, such as As-Built Drawings based on the
Contractor’s red line drawings and/or coordinated set developed during the
subcontractor coordination process. As-Built Drawings should be transmitted to DGS
in hard copy, PDF, CAD, and BIM formats.
Section 5.1.2 Unrenovated Portions of the Structure. In constructing the Project, the
Design-Builder shall ensure that unrenovated portions of existing structures, if any, including,
but not limited to, the mechanical, plumbing, electrical systems, and other building systems are
not adversely affected. All unrenovated portions of the structures should function, at a
minimum, at the level of functionality that existed immediately prior to the construction of the
Project. If any unrenovated portion of the Project functions at a lower level of functionality as
a result of the Design -Builder’s Work, the Design- Builder shall be back -charged the costs
incurred by the Department in addressing the decreased functionality.
Section 5.2 Design Completion.
Section 5.2.1 Mid-Point Construction Project Document Review. Based on the approved
Design Development Documents and any approved Value Engineering, the Design-Builder
shall prepare a set of Construction Documents. It is contemplated that the Construction
Documents will be issued in several different sets (i.e. architectural, electrical, mechanical,
structural, etc.). As each such set reaches a point where it is approximately fifty percent (50%)
complete, the Design-Builder shall prepare and submit a progress printing to the Department
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for its review and comment.
Section 5.2.2 C onstruction Project Document Review & Coordination. The Design -
Builder shall complete each of the Construction Documents packages in a manner that
addresses the concerns raised by the Department during the review contemplated in
Section 5.2.1 for such package. The Design -Builder shall issue one or more sets of permit
documents to the Department for its review and approval (“Permit Set”). With regard to each
such set, the Design-Builder shall highlight (or bubble) any aspect of the design that represents
a material deviation from the approved Design Development Documents and shall address in
a narrative format the impact, if any, such departure shall have on the Project’s aesthetics,
functionality or performance. The Department shall have the right to disapprove the
Construction Documents for any reason. If the Department disapproves of the Construction
Documents, the Design- Builder will not be entitled to any additional compensation. If,
however, the Department disapproves a Construction Document that is a logical extension of
the approved Design Development Documents, the Design-Builder will be entitled to an
adjustment to the GMP and/or the Project Schedule unless such a package departs from the
Scope of Work fairly reflected in the GMP Drawings and Specifications and in such event the
Design-Builder shall be required to prepare a revised design that complies with the GMP
drawings and specifications (“Drawing s and Specifications”) and without any entitlement to
an increase in the GMP or an adjustment of the Project Schedule.
Section 5.2.3. Code Review. T he Design-Builder shall submit the Permit Set to the D OB in
order to obtain the necessary building permits for the Project. The Design- Builder shall
monitor the permit process and shall incorporate any changes or adjustments required by the
Code Official. The Design-Builder shall also issue any such changes to the Department for its
review and approval. In this submittal, the Design -Builder’s Architect shall highlight (or
bubble) any aspect of the design that represents a material deviation from the permit set Project
documents and shall address in a narrative format the impact, if any, such departure shall have
on the Project’s aesthetics, functionality or performance. Subsequent to obtaining the necessary
building permits, the Design-Builder shall prepare one or more sets of “issued for construction
Project documents” (the “IFC Set(s)”).
Section 5.2.4. Design Changes. If it should become necessary to amend any of the approved
IFC Set(s), the Design -Builder shall prepare an amendment to the drawings and shall submit
such amendment to the Department for its review and approval. In this submittal, the Design-
Builder shall highlight (or bubble) any aspect of the design that represents a material deviation
from the permit set documents and shall address in a narrative format the impact, if any, such
departure shall have on the Project’s aesthetics, functionality or performance. In the event the
Department does not approve such document within ten (10) business days after issuance,
unless otherwise denied, such document shall be deemed approved, provided however that the
Department has not advised that such document is still under review.
Section 5.2.5 Third Party Contractors. The Department will hire third party contractors for
plan review and for testing and material inspections. The Design-Builder shall coordinate and
work with the Program Manager and third -party plan reviewer during the building permit
process.
Section 5.2.6 Final Maintenance and Operations Plan. The Design- Builder shall submit,
for the Department’s review, a final Maintenance and Operations Plan. The Maintenance and
Operations Plan shall be based on the final IFC Set(s). The approved Maintenance and
Operations Plan shall form the basis of the Design-Builder’s maintenance of the building
following Substantial Completion.
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Section 5.3 Subcontracting and Administration
Section 5.3.1 It is contemplated that all or substantially all of the construction of the Project
will be carried out by trade subcontractors and that those trade subcontracts will be awarded
through the competitive bid process contemplated in Section 4.4. The Design-Builder shall
enter into a written agreement with each subcontractor . The trade subcontractors will be
underwritten contract with the Design-Builder. All subcontracts and agreements for the supply
of equipment or materials awarded for the Project shall be fixed -price contracts unless
otherwise expressly authorized by the Department, in writing. It is understood and a greed,
however, that certain trade packages (such as the mechanical and electrical packages) may be
awarded on a design-assist or design-build basis and that such trade packages may be awarded
on such other basis subject to the Department’s consent as to the bidding procedures and
economic structure with regard to those packages. The Design-Builder and its affiliates may
not carry out trade work with its own forces without the Department ’s written permission,
which permission may be withheld or conditioned by the Department in its sole and absolute
judgment.
Section 5.3.2 In addition to the open book reporting requirements set forth in Secti on 5.10, the
Design-Builder shall provide to the Department a copy of all quotes or proposals submitted by
potential subcontractors.
Section 5.3.3 The Design-Bui lder shall develop a purchasing strategy to address the expedited
schedule and conditions of this Project and shall include appropriate provisions in the
subcontracts to minimize the cost impact associated with such conditions. Such strategies may
include, but are not limited to : (i) obtaining from subcontractors unit price quotes for typical
coordination items; (ii) setting aside allowances for coordination work; and (iii) such other
techniques as may be employed by the Design-Builder.
Section 5.3.4 The Design-Builder shall carefully document its procedures for making available
bid packages to potential bidders, the contents of each bid package, discussions with bidders at
any pre-bid meetings, bidders’ compliance with bid requirements, all bids received, the Design-
Builder’s evaluations of all bids, and the basis for the Design-Builder’s recommendation as to
which bidders should be chosen. The Department shall be afforded access to all such records
at all reasonable times so that, among other things, it may independently confirm the Design-
Builder’s adherence to all requirements set forth in the Agreement including, without
limitation, affirmative action requirements and subcontracting requirements.
Section 5.3.5 The Department may, in its sole discretion, reject any or all bids and proposals
received for any bid package, and may require the Design-Builder to obtain new or revised bids
or proposals.
Section 5.3.6 The Department may, in its sole discretion, direct the Design-Builder to accept a
bid from a qualified bidder other than the bidder to whom the Design- Builder recommends
award of a subcontract or supply agreement. If the Department chooses this option, it shall
issue a Change Order to the Design- Builder for any difference between the cost of the
subcontractor supply agreement awarded and the bid price of the subcontractor or supplier
recommended by the Design-Builder, but without any adjustment to the Design-Build Fee.
Section 5.3.7 The Department must approve all subcontractors and suppliers. The Department
may elect to review the form of any subcontractor agreement with a material supplier to ensure
that such contract incorporates the contractual provisions required by this Agreement.
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Section 5.3.8 The Design-Builder must contract for the provision of all services and materials
for the Project (other than Self -Performed Work which must be authorized in advance and in
writing by the Department) via written subcontracts or, for contracts requiring the provision of
materials or equipment only, and not labor, via written supply agreements. All subcontracts
and supply agreements shall include the following provisions:
Section 5.3.8.1 that, to the extent of the work or supply within the agreement’s scope,
the subcontractor or supplier is bound to the Design-Builder for the performance of all
obligations which the Design-Builder owes the Department under the Agreement;
Section 5.3.8.2 that the subcontractor or supplier is not in privity with the Department
and shall not seek compensation directly from the Department on any third-party
beneficiary, quantum meruit, or unjust enrichment claim, or otherwise, except as may
be permitted by any applicable mechanic’s lien law;
Section 5.3.8.3 that the Department is a third -party beneficiary of the subcontractor
supply agreement, entitled to enforce any rights thereunder for its benefit;
Section 5.3.8.4 that the subcontractor or supplier consents to the assignment of its
agreement to the Department, at the Department’s sole option, if the Design-Builder is
terminated for default;
Section 5.3.8.5 that the subcontractor or supplier shall comply immediately with a
written order from the Department to the Design-Builder to suspend or stop work;
Section 5.3.8.6 that the subcontractor or supplier shall maintain records of all Work it
is requested or authorized to do on a time and material or cost-plus basis, or with respect
to claims that it has asserted on a time and materials or cost- plus basis, during the
Project and for a period of time specified in the General Conditions and requiring the
subcontractor or supplier to make those records available for review or audit by the
Department during that time;
Section 5.3.8.7 that the subcontractor shall obtain and maintain, throughout the Project,
workers’ compensation insurance in accordance with the laws of the District of
Columbia (this provision is not applicable to supply agreements);
Section 5.3.8.8 that, if the Department terminates the Agreement for convenience, the
Design-Builder may similarly terminate the subcontractor supply agreement for
convenience, and that the subcontractor or supplier shall, in such a case, be entitled only
to the costs set forth in Article 6 of the Standard Contract Provisions (Construction
Contracts);
Section 5.3.8.9 that the Department shall have the right to enter into a contract with the
subcontractor or supplier for the same price as its subcontractor supply agreement
priceless amounts already paid if the Design- Builder files a voluntary petition in
bankruptcy or has an involuntary petition in bankruptcy filed against it;
Section 5.3.8.10 that the subcontractor or supplier shall not be entitled to payment for
defective or non -conforming work, materials , or equipment, and shall be obligated
promptly to repair or replace non-conforming work, materials, or equipment at its own
cost;
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Section 5.3.8.11 a provision requiring that subcontractors and suppliers promptly pay
subcontractors and suppliers at lower tiers, imposing upon the subcontractors and
suppliers a duty to pay interest on late payments, and barring reimbursement for interest
paid to lower -tier subcontractors or suppliers due to a subcontractor ’s or supplier’s
failure to pay them in a timely fashion;
Section 5.3.8.12 a provi sion requiring that all subcontractor at all tiers comply with the
provisions of Article 13 (Economic Inclusion Goals); provided, however , that the
Design-Builder may, in its reasonable discretion impose a different LSDBE
subcontracting goal on some or all of its subcontractor; provided, further, however, that
nothing in this provision shall be deemed to excuse the Design- Builder from using its
best efforts to achieve the LSDBE subcontracting goal on an aggregate basis for the
Project;
Section 5.3.8.13 a provision that allo ws the Design-Builder to withhold payment from
the subcontractor if the subcontractor does not meet the requirements of the
subcontract;
Section 5.3.8.14 lien and claim release and waiver provisions substantially identical to
those in this Agreement.
Section 5.3.9 Within seven (7) calendar days of receiving any payment from the Department
that includes amounts attributable to Work performed or materials or equipment supplied by a
subcontractor or supplier, the Design-Builder shall either pay the subcontractor or supplier for
its proportionate share of the amount paid to the Design-Builder for the subcontractor’s or
supplier’s Work or materials or equipment or notify the Department and the subcontractor or
supplier, in writing, of the Design-Builder’s intention to withhold all or part of the payment
and state the reason for the withholding. All monies paid to the Design- Builder under the
Agreement shall be used first to pay amounts due to subcontractor or suppliers supplying labor
or materials for the Project and only money remaining after such payments are made may be
used for other items such as the Design-Build Fee. Monies paid by joint check shall be deemed
to have been paid fully to the subcontractor or supplier named as a joint payee unless the
Department agrees otherwise in writing. Any interest paid to subcontractor or suppliers because
the Design-Builder has failed to pay them in a timely fashion shall not be reimbursable as part
of the Cost of the Work.
Section 5.3.10 The Design-Builder shall not enter into any profit sharing, rebate, or similar
arrangement with any subcontractor or supplier at any tier with respect to the Project or the
Work to be carried out for the Project.
Section 5.3.11 The Design-Builder shall not substitute or replace any subcontractor or supplier
approved by the Department without the Department’s Contracting Officer and DSLBD’s prior
written consent.
Section 5.3.12 The Department has the right to contact subcontractor or suppliers at all tiers,
or material or equipment suppliers directly to confirm amounts due and owing to them or
amounts paid to them for Work on the Project, and to ascertain from the Subcontractor or
suppliers at all tiers their projections of the cost to complete their work or to supply their
material or equipment, or the existence of any claims or disputes. In doing so the Department
shall not issue any directions to Subcontractor or Suppliers at any tier.
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Section 5.3.13 If it comes to the Department’ s attention that a subcontractor or supplier has
not been paid in a timely fashion (other than for disputed amounts), and if the Design-Builder
fails to cure the problem within five (5) calendar days after the Department gives it written
notice of the failure to pay, the Department may make payments to the subcontractor or supplier
and Design-Builder by joint check. If the payment was already made to the contractor, the joint
check be for future payments (if any).
Section 5.3.14 The Design-Bui lder shall be required to provide an evaluation of each of its
subcontractor’ performance by completing and submitting to the Department the subcontractor
Performance Evaluation Form set forth as Exhibit O, as follows:
(a) Within ninety (90) days of initiating the Construction Phase; and
(b) Within thirty (30) days after Final Completion of the Project.
Section 5.3.15 The Design-Builder shall be required to provide to the Contracting Officer a
certificate of insurance for each subcontractor before such subcontractor begins work.
Section 5.4 Weekly Progress Meetings & Schedule Updates.
The Design -Builder shall schedule and conduct, at a minimum, weekly progress meetings
following the Design- Builder’s generated agenda at which the Department, the Design -
Builder’s Architect, the Program Manager, the Design-Builder, and appropriate Subcontractor
can discuss the status of the Work. The Design- Builder shall prepare and promptly distribute
meeting minutes. In addition, the Design- Builder shall submit bi- weekly schedule updates
which shall reflect actual conditions of Project progress as of the date of the update. The update
shall reflect the actual progress of construction, identify any developing delays, regardless of
their cause, and reflect the Design-Builder’s best projection of the actual date by which
Substantial Completion and Final Completion of the Project will be achieved. Via a narrative
statement (not merely a critical path method schedule), the Design -Builder shall identify the
causes of any potential delay and state what, in the Design -Builder’s judgment, must be done
to avoid or reduce that delay. The Design-Builder shall point out, in its narrative, changes that
have occurred since the last update, including those related to major changes in the scope of
work, activities modified since the last update, revised projections of durations, progress, and
completion, revisions to the schedule logic or assumptions, and other relevant changes. Any
significant variance from the previous schedule or update shall also be identified in a narrative,
together with the reasons for the variance and its impact on Project completion. All Schedule
updates shall be in a native format reasonably acceptable to the Department (e.g., Primavera).
The Department may make reasonable requests during the Project for changes to the format or
for further explanation of the information provided. Submission of updates showing that
Substantial Completion or Final Completion of the Project will be achieved later than the
applicable scheduled completion date shall not constitute requests for extension of time and
shall not operate to change the scheduled completion date(s). The Department’s receipt of, and
lack of objection to, any schedule update showing Substantial Completion or Final Completion
later than the dates agreed upon in the Project Schedule shall not be regarded as the
Department’s agreement that the Design-Builder may have an extension of time, or as a waiver
of any of the Department’s rights, but merely as the Design-Builder’s representation that, as a
matter of fact, Substantial Completion or Final Completion of the Project may not be completed
by the agreed-upon date in the Project Schedule. Changes to the scheduled completion dates
may be made only in the circumstances and only by the methods set forth in this Agreement.
Section 5.5 Written Reports.
The Design-Builder shall provide written reports to the Department on the progress of the entire
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Work at least monthly from Preconstruction Notice to Proceed until Final Completion of the
Project. The monthly report shall include: (i) an updated schedule analysis, including any plans
to correct defective or deficient work or recover delays; (ii) an updated cost report; (iii) a
monthly review of cash flow; (iv) a quality control report; and (v) progress photos. Such written
report shall include the following elements:
Section 5.5.1 Construction Progress Update. Each monthly update shall contain a narrative
description of the Project progress and a critical path method schedule in Primavera format,
including any plans to correct defective or deficient work or for time lost due to delays.
Section 5.5.2 Cost Update. The monthly update shall reflect, by GMP line item, the original
line-item amount, approved, pending, and projected Change Order amounts, the cost incurred
to date, the projected cost to complete the Work of the line item, and any variance between the
actually approved budgeted balance of the line item and the projected cost to complete. A clear
distinction must be made between approved Change Orders and those merely requested or
anticipated. The report shall explain all variances including “buy- outs” or final actual costs
including those below their respective GMP line item. In addition, the report must disclose
any instances in which the Design- Builder has transferred amounts from one line item to
another, or from the Contingency to any other line item. Neither submission nor the
Department’s failure to reject an update reflecting that the projected cost to complete the
Project exceeds the GMP will operate to increase the GMP or waive the Department’s right to
enforce the Guar anteed Maximum Price. If the report reflects budget overruns, it must also
include a recovery plan.
Section 5.5.3 Economic Inclusion Report. The monthly report shall include a detailed
summary of the Design- Builder’s efforts and results with respect to the economic inclusion
goals set forth in this Agreement. Such report shall be in a format acceptable to the Department
and shall include, at a minimum: (i) the Design-Builder’s overall performance with respect to
the goals; (ii) a listing of subcontracts and agreements with material suppliers during the month
and the percentage of those subcontracts and agreements with material suppliers awarded to
LSDBEs; (iii) a listing of subcontracts during the month and the estimated percentage of the
labor hours to be worked by District of Columbia residents pursuant to those subcontracts; and
(iv) a description of the major subcontracting and supply opportunities that will be solicited
during the next three (3) months and the actions being taken to meet the subcontracting goals.
Section 5.5.4 Cash Flow Update. If there have been any changes to the anticipated cash flow
for the Project, such changes shall be disclosed and explained in the monthly report. If there
are no such changes, the report shall so state.
Section 5.5.5 Quality Assurance Report. The monthly report shall include a detailed
summary of the steps that are being employed to ensure quality construction and workmanship.
Each report shall specifically address issues that were raised by the Department and/or its
Program Manager during the prior month and outline the steps that are being taken to address
such issues.
Section 5.5.6 Progress Photos. The monthly report shall include updated progress photos that
shall detail changes in the Work during the month. The Design-Builder shall also maintain a
daily log containing a record of weather, Subcontractor working on the site, number of workers,
major equipment on the site, Work accomplished, problems encountered and other similar
relevant data as the Department may reasonably require. The log shall be available to the
Department, the Design-Builder’s Architect, and the Program Manager, and on a monthly
basis, a copy of the log shall be submitted to the Department.
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Section 5.6 Cost Control System.
The Design-Builder shall use a system of cost control for the Work in a format consistent with
the GMP Drawings & Specifications and approved by the Department, which shall include,
without limitation, regular monitoring of actual costs for activities in progress and estimates
for uncompleted tasks and proposed changes. The Design -Builder shall identify variances
between actual and estimated costs and report the variances to the Department, the Design -
Builder’s Architect, and the Program Manager at regular intervals.
Section 5.7 Key Personnel.
Section 5.7.1 T o carry out its duties, the Design-Builder shall provide at least the key personnel
identified in Exhibit F to this Agreement (“Key Personnel”), who shall carry out the functions
identified in Exhibit F. Among other things, the Key Personnel shall include:
A – Key Personnel of the Design-Builder
The following individuals shall be considered key personnel Key Personnel of
Design Builder:
i. Project Manager
ii. Field Superintendent
iii. Project Executive
B – Key Personnel of the Design-Builder’s Architect/Engineer
The following individuals shall be considered the Key Personnel of the Architect:
i. Project Architect
ii. Principal in Charge
iii. Lead Mechanical Engineer
It is contemplated that these Key P ersonnel will work from the design stage, purchasing, and
throughout the bulk of the fieldwork . The Design -Builder’s obligation to provide adequate
staffing is not limited to providing the Key Personnel but is determined by the needs of the
Project. The Design-Builder shall not replace any of the Key Personnel without the
Department’s prior written approval. If any of the Key Personnel become unavailable to
perform services in connection with the Agreement due to death, disability, or separation from
the employment of the Design-Builder or any affiliate of the Design-Builder, then the Design-
Builder shall promptly notify the Department’s Contracting Officer and propose a replacement
acceptable to the Department. The Department shall be entitled to complete information before
approving such replacement, including, but not limited to, a current resume of the proposed
replacement to include qualifications and experience.
Section 5.7.2 Certain members of the Design -Bui lder’s Key Personnel shall be subject to a
replacement fee for their removal or reassignment by the Design -Builder. Those members of
the Design -Builder’s Key Personnel subject to a replacement fee shall be identified in
Exhibit F as subject to the replacement fee provisions. In the event there is no delineation in
Exhibit F of those members of the Design-Builder’s Key Personnel subject to the replacement
fee provisions of this Agreement, then all of the Key Personnel shall be subject to the
replacement fee provisions of this Agreement.
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Section 5.7.2.1 R emoval or Replacement of Key Personnel. Subject to the terms of
Section 5.7.1, if the Design- Builder replaces one of the key personnel listed in
Exhibit F as being subject to a replacement fee, without the prior written consent of
the Department, then the Design- Builder shall pay to the Department’s Contracting
Officer the amount set forth in the Project Information s ection of this Agreement as
replacement fee and not a penalty, to reimburse the Department for its administrative
costs arising from the Design- Builder’s failure to provide the Key Personnel. The
foregoing replacement fee amount shall not bar recovery of any other damages, costs ,
or expenses other than the Department’s internal administrative costs.
Sect
ion 5.7.2.2 In addition, the Department shall have the right, to be exercised in its
sole discretion, to remove, replace, or to reduce the scope of services of the Design-
Builder in the event that a member of the Key Personnel has been removed or replaced
by the Design-Builder without the prior written consent of the Department ’s
Contracting Officer. In the event, that the Department exercises the right to remove,
replace or to reduce the scope of services of the Design-Builder, the Department shall
have the right to enforce the terms of this Agreement and to keep- in-place those
members of the Design- Builder’s team not r emoved or replaced and the remaining
members shall complete the services required under this Agreement in conjunction
with the new members of the Design-Builder’s team approved by the Department ’s
Contracting Officer.
Section 5.8 Qualified Personnel/Cooperation.
The Design-Builder shall employ on the Project only those employees and Subcontractor who
will work together in harmony and who will cooperate with one another on the Project. The
Design-Builder shall enforce strict discipline, good order , and harmony among its employees
and its Subcontractor and shall remove from the site any person who is unfit for the work or
fails to conduct herself or himself in a proper and cooperative manner. If the Department
requests the removal of any person as unfit or as having behaved inappropriately, the Design-
Builder shall promptly comply.
Section 5.9 Warranty.
The Design-Builder warrants to the Department that materials and equipment furnished under
the Project Documents will be of good quality and new unless otherwise required or permitted
by the Contract documents, that for the one (1) year period following the Substantial
Completion Date the Work will be free from defects not inherent in the quality required or
permitted, and that the Work will conform to the requirements of the Contract documents. The
Design-Builder’s warranty excludes remedies for damage or defect caused by abuse,
modifications not executed by the Design- Builder, improper or insufficient maintenance,
improper operation, or normal wear and tear from normal usage. The Design-Builder shall use
commercially reasonable efforts to schedule a joint inspection of the Project during the eleventh
month after Substantial Completion is achieved. During such inspection, the Design-Builder
and a representative of the Department shall walk the Project to identify any necessary warranty
work.
Section 5.10 Open Book Reporting.
The Design -Builder shall maintain an open-book reporting system with the Department,
allowing the Department or its consultants access to the Design- Builder’s Subcontractor and
material suppliers, invoices, purchase orders, Change Order estimates, records for Self -
Performed Work, and other relevant Project documentation and sources of information
concerning the Work or costs. The Department shall not use its access to the Subcontractor to
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give instructions or directions to them. All instructions or directions shall be given only to the
Design-Builder.
Section 5.11 Claims for Additional Time.
Section 5.11.1 Time is of the essence of this Agreement. The Project must be Substantially
Complete no later than the Substantial Completion Date set forth within the Project Information
Section above.
Section 5.11.2 Th e Design-Builder will perform the Work so that it shall achieve Substantial
Completion by the Substantial Completion Date. Unless the failure to achieve Substantial
Completion by the Substantial Completion Date is a result of an Excusable Delay, as defined
in Section 5.11.3, the delay shall be deemed Non-Excusable and the Design-Builder shall not
be entitled to an extension of time. Without limiting the generality of the foregoing, delays for
the following reasons shall be regarded as Non-Excusable and shall not entitle the Design-
Builder to an extension of time:
Section 5.11.2.1 De lays due to job site labor disputes, work stoppages, or suspensions
of work;
Section 5.11.2.2 Delays due to adverse weather, unless the Design-Builder establishes
that the adverse weather was of a nature and duration in excess of averages established
by data from the U.S. Department of Commerce, National Oceanic and Atmospheric
Administration for the Project locale for the ten (10) years preceding the effective date
of the Agreement. For purposes of this clause, whether shall only be deemed “adverse”
if the weather in question was more severe than that encountered at the Project site over
the last ten (10) years for the month in question. Such determinations shall be made
based on the number of rain/snow days or the cumulative precipitation total for the
month in question. Notwithstanding the foregoing, named storms shall conclusively be
deemed “adverse”;
Section 5.11.2.3 Delays due to the failure of the Design- Builder or Subcontractor or
material suppliers at any tier to perform in a timely or proper fashion, without regard to
concepts of negligence or fault; or
Section 5.11.2.4 De lays due to Site Conditions whether known or unknown as of the
effective date of the Agreement, foreseeable or unforeseeable at that time, naturally
occurring or man-made; provided, however, that delays due to differing Site Conditions
as permitted by Article 4, Section A of the Standard Contract Provisions (Construction
Contracts) or Hazardous Materials Remediation shall be deemed an Excusable Delay.
Section 5.11.3 Th e Design -Builder shall be entitled to an adjustment in the Substantial
Completion Date due to an Excusable Delay. The term “Excusable Delay” shall mean:
Section 5.11.3.1 Del ays due to adverse weather other than those that are classified as a
Non-Excusable delay in accordance with Section 5.11.2.2 of this Agreement;
Section 5.11.3.2 Delays due to acts of God, war, unavoidable casualties, civil unrest,
and other similar causes of delay that are beyond the control of the Design-Builder;
provided, however, that in no event shall a Non- Excusable Delay or the action or
inaction of the Design- Builder, or any of its employees, agents, Subcontractor or
material suppliers be deemed an Excusable Delay; or
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Section 5.11.3.3 Delays caused by differing Site Conditions as permitted by Article 4,
Se
ction A of the Standard Contract Provisions (Construction Contracts) or Hazardous
Materials Remediation as contemplated in Section 5.11.2.4 of this Agreement;
Section 5.11.3.4 Delays due to suspensions of work;
Section 5.11.3.5 Delays caused by the Client Agency or separate contractors of the
Client Agency to the extent such delays are not concurrent with delays caused by the
Design-Builder or any of its employees, agents, subcontractor or material suppliers; or
In addition to the foregoing, a delay shall be deemed to be an Excusable Delay only to
the extent that such delay: (i) warrants an extension in the Substantial or Final
Completion Date; (ii) has not been caused by the Design- Builder or any of its
employees, agents, Subcontractor or material suppliers; (iii) is on Project’s critical path;
and (iv) is in addition to any time contingency periods set forth in the critical path.
Section 5.11.4 If the Design- Builder wishes to make a claim for an adjustment in the time
allotted per the Project Schedule, written notice as provided herein shall be given. The Design-
Builder’s claim shall include an estimate of the cost and of the probable effect of delay on the
progress of the Work. In the case of continuing delay, only one claim is necessary.
Section 5.11.5 In no event shall the Design- Bui lder be entitled to an increase in the GMP or
the Design-Build Fee as a result of either an Excusable or Non -Excusable Delay; provided,
however, that to the extent that a delay is: (i) an Excusable Delay; (ii) of unreasonable duration;
(iii) caused solely by the Department; and (iv) not concurrent with any other delay, then the
Design-Builder shall be entitled to receive its actual costs, including all direct and indirect
costs, bonds and insurances resulting from such extended duration. It is understood that the
Design-Builder shall not be entitled to any profit or home office overhead, including, but not
limited to, an increase in the Design -Build Fee, on any amounts to which the Design-Builder
may be entitled pursuant to the preceding sentence.
Section 5.12 Site Safety and Clean-Up.
S
ection 5.12.1 The Design-Builder will be required to provide a safe and efficient site, with
controlled access. As part of this obligation, the Design- Builder shall be responsible for
initiating, maintaining, and supervising all safety precautions and programs in connection with
the Project, and shall comply with the requirements set forth in Article 16, Section F of the
Standard Contract Provisions (Construction Contracts).
Section 5.12.2 Safety Plan. Prior to the start of construction activities, the Design-Builder shall
prepare a safety plan for the construction phase conforming to OSHA 29 CFR 1926 (such plan,
the “Safety Plan”). Pursuant to OSHA 29 CFR 1926, the Design- Builder shall provide all
employees with the necessary Personal Protective Equipment ( “PPE”) to comply with all
COVID-19 regulations, and shall additionally require anyone on site to comply with any PPE
requirements. This Safety Plan developed by the Design- Builder shall describe the proposed
separation and the specific nature of the safety measures to be taken including fences and
barriers that will be used as well as the site security details. The Safety Plan will be submitted
to the Department and Client Agency for their review and approval prior to the commencement
of construction. Once the Safety Plan has been approved, the Design-Builder shall comply
with it at all times during construction. The Design -Builder shall be required to revise the
Safety Plan as may be requested by the Department or Client Agency at any time, including,
but not limited to, as necessary to address any new national or local COVID -19 regulations,
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recommendations, or restrictions. The cost of revising and complying with the plan shall not
entitle the Design-Builder to an increase in the GMP. In the event the Design- Builder fails to
provide the Safety Plan, the Design- Builder will not be permitted to commence the
Construction Phase until the Safety Plan is submitted, and in no event shall any resulting delay
constitute an Excusable Delay. Additionally, the Design -Builder shall comply with the
requirements of Article 27, Section A of the Standard Contract Provisions (Construction
Contracts).
Section 5.12.3 Safety Barriers/Fences. As part of its responsibility for Project safety, the
Design-Builder shall install such fences and barriers as may be necessary to separate the
construction areas of the site from those areas that are then being used by the Client Agency
for educational purposes. The Design- Builder shall describe in the Safety Plan the proposed
separation and the specific nature of the fences and barriers that will be used.
Section 5.12.4 Site Security. The Design-Builder shall be responsible for site security and
shall be required to provide such watchmen as are necessary to protect the site from unwanted
intrusion. Site Security shall be included in the Design-Builder’s General Conditions Cost.
Section 5.12.5 Exculpation. The right of the Department and Client Agency to comment on
the Safety Plan and the nature and location of the required fences and barriers shall in no way
absolve the Design-Builder from the obligation to maintain a safe site.
Section 5.12.6 Site Cleanliness. During the Agreement performance and/or as directed by the
Department’s Program Manager, as the installation is completed, the Design- Builder shall
ensure that the site is clear of all extraneous materials, rubbish, or debris.
Section 5.13 Workhours, Site Office, and Coordination with Client Agency and
Community
Section 5.13.1 Workhours. The Design-Builder shall comply with the Noise Ordinance and
neither it nor its subcontractor shall undertake work on the Project site other than at the times
and sound level permitted by the Noise Ordinance.
Section 5.13.2 Site Office. Throughout the Project, the Design- Builder shall provide and
maintain a fully-equipped construction office for the Project site. The Design-Builder shall, at
all times, provide and maintain a fully equipped construction office for DGS staff assigned to
the Project. The costs for these Site Office(s) shall be included as part of the Design-Builder’s
general conditions cost.
Section 5.13.3 Parking. The Design-Builder shall organize its work in such a manner so as to
minimize the impact of its operations on the surrounding community. To the extent that the
number of workers on the site is likely to have an adverse impact on neighborhood parking,
the Design-Builder shall develop a parking plan for those individuals working on the site that
is reasonably acceptable to the Department.
Section 5.13.4 Wheel Washing Stations. The Design-Builder shall provide wheel washing
stations on- site so as to prevent the accumulation of dirt and other refuse on the streets
surrounding the Project site.
Section 5.13.5 Outreach Plan. The Design-Builder shall keep the Department informed of
the construction activities and their potential impact on the community and shall develop a
community outreach plan (the “Outreach Plan”). The Design -Builder shall submit the
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Outreach Plan to the Department prior to its implementation which shall be subject to the
Department’s review and approval.
Section 5.13.6 Supervision. Throughout the Work, the construction office shall be managed
by personnel competent to oversee the Work at all times while construction is underway. Such
personnel shall maintain full -time, on -site construction supervision and provide daily
inspections, quality control, monitoring, coordination of various trades, record drawings, and
daily work log.
Section 5.14 Close-out & FF&E.
Section 5.14.1 A detailed list of FF&E requirements will be developed during the design &
Pr
econstruction Phase and attached hereto as Exhibit N.
Section 5.14.2 Punchlist. Promptly before Substantial Completion, the Design-Builder shall
cause the Design-Builder’s Architect to develop a punchlist . Once the punchlist is prepared,
the Design-Builder shall inspect the work along with representatives from the Department. The
punchlist shall be revised to reflect additional work items that are discovered during such
inspection. The Design- Builder shall correct all punchlist items no later than sixty (60) days
after Substantial Completion is achieved.
Section 5.14.3 Warranties & Manuals. Prior to Substantial Completion and no later than
fifteen (15) days following Substantial Completion, the Design- Builder shall prepare and
submit the following Project documentation: (i) a complete set of product manuals (“O&M”),
training videos, warranties, etc.; (ii) attic stock; (iii) an equipment schedule; (iv) a proposed
schedule of maintenance for the new building; (v) environmental, health and safety Project
documents for the renovated building; and (vi) all applicable inspection certificates/permits
(boiler, elevator, emergency evacuation plans, health inspection, etc.) for the new building. No
later than thirty (30) days following Substantial Completion, the Design-Builder shall prepare
and submit: (i) a complete set of its Project files; and ( ii) a set of record drawings , including
BIM models.
Section 5.14.4 Support for Initial Heating & Cooling Season. The Design-Builder and its
mechanical subcontractor shall provide support to the Client Agency and the Department
during system start -up and in initial operation for the first heating and cooling season after
Substantial Completion is achieved.
Section 5.14.5 Training. The Design-Builder shall provide training to Client Agency staff on
all of the building systems. The Design- Builder shall be required to schedule such training
sessions and shall use commercially reasonable efforts to ensure all such training occurs prior
to Final Completion. All training shall be electronically recorded and turned over to the
Department for future use.
Section 5.14.6 The Design-Builder shall assist Client Agency in relocating FF&E and other
items as necessary within the renovated building, as well as for cleaning and other move -in
services as directed by the Department. The GMP shall include an allowance and scope of
work for these activities. This allowance is in addition to cleaning services that would otherwise
be required by the Design-Builder, including, but not limited to, the obligation to deliver a
broom clean building at the end of construction.
Section 5.15 Salvaged and Stored Items. The Design -Builder shall be responsible for
salvaging and storing all items as identified by the Department, and to the benefit of the
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Department, in accordance with all applicable District laws and regulations, after notifying the
Department and receiving the Department’s permission to proceed.
Section 5.16 Protection of Existing Elements.
The Design -Builder shall protect all existing features, public utilities, and other existing
structures during construction. The Design- Builder shall protect existing site improvements,
trees, and shrubs from damage during construction. Protection extends to the root systems of
existing vegetation. The Design- Builder shall not store materials or equipment, or drive
machinery, within the drip line of existing trees and shrubs.
Section 5.17 Sediment and Erosion Control.
The Design-Builder shall be responsible for installing sediment and erosion control measures
in accordance with DOEE guidelines , inclusive of, but not limited to: silt fencing, inlet
protection, stabilized construction entrances, and other control measures . The Design-Builder
shall be responsible for scheduling and coordination of DOEE Kick-Off Meeting.
Section 5.18 Quality Control.
Section 5.18.1 General Obligation. The Design-Builder shall be responsible for all activities
necessary to execute, manage, control, and document work for ensuring compliance with the
contract documents. The Design-Builder’s responsibility includes ensuring adequate quality
control services are provided by the Design-Builder’s employees, its subcontractor, vendors &
suppliers at all levels from concept to completion including site assessment-
investigations/discovery, schematic design development, pre-construction, construction, and
closeout phases. All contract -related work activities and their implementation procedures
described within this quality control plan shall also address safety, measures to ensure
regulatory permit & code compliance, submittal management, change document
processing/incorporation, reporting, and all other functions necessary to achieve the highest
levels of quality during design and construction efforts. The Design-Builder’s Quality Control
(“QC”) Plan submittal must include statements affirming compliance with DGS QC Program
requirements. These requirements describe design & construction phase stipulations driving
satisfactory integration of Definable Features of Work (“DFOWs”) identified by DGS as being
essential to overall Project success.
Section 5.18.2 Quality Control Plan. Within thirty (30) days after the Notice to Proceed
(N
TP), the Design-Builder shall develop a Quality Control plan for the Project (the, “Quality
Control Plan”). A draft of the Quality Control Plan shall be submitted to the Department and
shall be subject to the Department’s review and approval. This draft shall comply with the
guidelines and include at a minimum, the necessary components for Quality Control Plan
development described within the Department’s Quality Control Master Program Exhibit U.
The Quality Control Plan shall be tailored to the specific products /type of construction
activities contemplated in the Design Development Documents, and in general, shall include a
table of contents, quality control team organization, and hierarchical arrangement detailing
ongoing, regular interaction/coordination within the Design-Builder’s teams,
duties/responsibilities of quality control personnel, submittal procedures, schedule of specified
inspection & testing requirements, deficiency correction procedures, issues & conflicts
resolution, RFI documentation process, change management, as -built record -keeping of
contract documents and a listing of customized quality control procedures, that will be required
to ensure key elements of the Work are executed in conformance with design documents.
Examples of a few key elements that necessitate focused attention and involvement of
competent agencies include MEP-Energy systems startup/commissioning, security systems
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integration, and building envelope multi -trade coordination. Mockup construction
requirements must be incorporated into the plan, in order to establish a minimum standard of
acceptance by the Department, for the Project’s most visible and critical structural-architectural
building elements like CIP concrete and exterior facades. The Quality Control Plan must
clearly describe requirements addressing the involvement of qualified personnel for critical
building elements and any delegated design features that require engineered solutions, backed
by supporting analysis data.
The Quality Control Plan must clearly describe quality control measures such as using
Department’s Quality Control Master Program 3- phase checklists recommended to be
undertaken by both design & construction teams. Prior to the construction phase commencing,
the Design -Builder must advise the Department regarding the status of their drawing &
specification documents, from a percentage completion standpoint. For that matter, the design
phase quality control effort shall provide metrics to gauge whether the design documents –
drawings & specifications – are as complete as possible, prior to the Design-Builder’s
groundbreaking. DGS QC Program Design Phase Checklists include metrics to perform this
evaluation of design documents. Similarly, the Quality Control Plan must describe in detail
the quality control mechanisms proposed to be implemented by the Design-Builder for
ensuring adherence with design documents by way of minimal rework and maintaining the
highest standards of construction. The Quality Control Plan must detail a description of any 3rd
parties suggested to be hired by the Department such as building envelope consultants and
commissioning agents.
Section 5.18.3 Implementation. During the Construction Phase, the Design- Builder shall
perform regular quality control inspections and create reports using the 3- phase inspection
checklists included within the DGS Quality Control Master Program manuals based on such
inspections pursuant to the Quality Control Plan. The quality control reports with the 3-phase
Checklists shall be provided to the Department electronically on a monthly basis. The Design-
Builder shall incorporate a quality control section in the progress meetings to discus s
outstanding deficiencies, testing/inspections, and upcoming Work. The monthly report shall
include a detailed summary of the steps that are being employed to provide quality construction
and workmanship. The monthly report should specifically address issues raised during the
month and outline the steps that are being used to address such issues. The following are the
components that must at a minimum be included within the monthly Quality Control report
submitted to DGS. All components must be updated regularly, and current versions included
with monthly submissions to the Department.
1. A written narrative of Quality Control activities for the month supported by embedded,
cross-referenced photos. Should include 3-phase checklists compiled on a regular basis
as part of the Design-Builder’s ongoing quality control efforts.
2. CPM updates and analysis reflecting the status of critical submittals affecting work
progress, elaborated further within the descriptive work narrative accompanying CPM
baseline schedule and subsequent, regular updates’ submissions to the Department.
3. Deficiency tracking log.
4. Test & Inspections log recording all related activities for the month and cumulative for
t
he Project. This must correspond to and cross -reference the Project’s testing &
inspections schedule described above with Section 5.18.2.
5. Submittal Schedule detailing the status of all Project submittals.
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Section 5.19 Acceleration.
Subject to the terms of this section , the Department shall have the right to direct the Design-
Builder to accelerate the Work if, in the reasonable judgment of the Department: (i) the
Design-Builder fails to supply a sufficiency of workers or to deliver the materials or equipment
with such promptness as to prevent the delay in the progress of the Work; or (ii) the progress
of the Work otherwise materially falls behind the projections contained in the then currently
approved Project Schedule. In the event that the Department or its Program Manager determine
that either of the events specified in the preceding sentence have occurred, the Department shall
provide the Design-Builder with written notice of such event and the Design- Builder shall be
required to provide the Department with a schedule recovery plan (“Recovery Plan”) that is
reasonably designed to address the concerns raised in such notice within three (3) days after
receipt of such notice. If the Department and the Design- Builder are unable to agree on the
terms of the Recovery Plan within five (5) days after the issuance of the notice (i.e. within forty
eight (48) hours after the receipt of the proposed Recovery Plan), the Department shall have
the right to direct such acceleration as the Department, in its reasonable judgment, deems
necessary. Provided Department complies with the notice provisions of this section , the cost
of any acceleration directed under this section shall not justify an adjustment to the GMP or
the Substantial Completion Date.
Given the nature of the Project and the fact that there is a fixed date upon which the Client
Agency plans to occupy the building, the Design-Builder hereby: (i) acknowledges that this
provision is a material inducement upon which the Department has relied in entering into this
Agreement; and (ii) represents and warrants that it has included sufficient funding in the GMP
in order to comply with the requirements of this section.
Section 5.20 Corrective Action Plan.
Subject to the terms of this section , the Department shall have the right to direct the Design-
Builder to revise the provisions of the Quality Control Plan if, in the reasonable judgment of
the Department, the craftsmanship of the Work being installed fails to comply with generally
applicable industry standards, requirements set forth in the specifications that are reasonably
related to the quality of craftsmanship quality, or any provisions set forth in this Agreement
(each a “Quality Control Event”). In the event that the Department or its Program Manager
determines that a Quality Control Event has occurred, the Department shall provide the Design-
Builder with written notice of the occurrence of such Quality Control Event and the Design-
Builder shall be required to provide the Department with a corrective action plan that is
reasonably designed to address the concerns raised in such notice within three (3) days after
receipt of such notice (each instance, a “Corrective Action Plan”). If the Department and the
Design-Builder are unable to agree on the terms of the Corrective Action Plan within five (5)
days after the issuance of the notice (i.e. within forty -eight (48) hours after the receipt of the
proposed corrective action plan), the Department shall have the right to direct such corrective
action measures as the Department, in its reasonable judgment, deems necessary. Such
directive may include adjustments to the procedural provisions set forth in the Quality Control
Plan and/or may impose additional requirements on the manner in which Work is being
performed. Provided the Department complies with the notice provisions of this section , the
cost of any such corrective action directed under this section shall not justify an adjustment to
the GMP or the Substantial Completion Date.
Section 5.21
a. Use of Department’s Electronic Project Management Information System
(ProjectTeam). The Design-Builder shall utilize the Department’s current project
management software, ProjectTeam, to submit any and all project documentation
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required to be provided by the Design-Builder for the Project, including, but not limited
to: (i) requests for information; (ii) submittals; (iii) meeting minutes; (iv)
invoices/applications for payment (full package including all forms required by DGS);
(v) certified payrolls (in addition to upload via LCP Tracker); (vi) drawings and
specifications; (vii) GMP and any Submissions that require approval by DC Council
(viii) punchlist; and (ix) other Project documents as may be designated by the
Department.
Electronic storage and transmission of information via P rojectTeam system shall be
compliant with the provisions of DGS document security.
b. Invoice Submittal. The Design-Builder shall create and submit payment requests in an
electronic format through the DC Vendor Portal, https://vendorportal.dc.gov. The
Design-Builder shall submit proper invoices on a monthly basis. To constitute a proper
invoice, the Design -Builder shall enter all required information into the Portal after
selecting the applicable purchase order number which is listed on the Design-Builder’s
profile.
Section 5.22 Conformance with Laws.
It shall be the responsibility of the Design-Builder to perform under the Agreement in
conformance with the Department’s Procurement Regulations and all applicable statutes, laws,
codes, ordinances, regulations, rules, requirements, orders, and policies of governmental
bodies, including, without limitation, the U.S. Government and the District of Columbia
government; and it is the sole responsibility of the Design-Builder to determine the
Procurement Regulations, statutes, laws, codes, ordinances, regulations, rules, requirements
and orders that apply and their effect on the Design-Builder’s obligations thereunder. Given
the requirements for the Project, the Department may, at its sole discretion : (i) apply for
variance to the requirement of adhering to the Green Building Act on the Project ; and (ii)
consider deferring the scope of work associated with stormwater management to a later phase
of the Project.
Section 5.23 Licensing, Accreditation, and Registration
The Design-Builder and all of its subcontractor and subconsultants (regardless of tier) shall
comply with all applicable District of Columbia, state, and federal licensing, accreditation, and
registration requirements and standards necessary for the performance of the Agreement.
Without limiting the generality of the foregoing, all drawings shall be signed and sealed by a
professional architect or engineer licensed in the District of Columbia.
Section 5.24 Construction Phase Deliverables.
The deliverables set forth in E xhibit C are required during the Construction Phase.
Section 5.25 Close-Out Deliverables.
The deliverables set forth in Exhibit N ar e required during the Project’s Close -Out and prior
to Final Payment, as set forth in Section 10.12 and below:
a) A complete set of the Design-Builder’s Project files.
b) A complete set of O&M, training videos, warranties, etc.
c) As-built record drawings.
d) Attic stock and schedule.
e) Equipment schedule.
f) Proposed schedule of maintenance.
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g) Environmental, health & safety documents.
h) LEED – Preliminary Construction Review.
i) All applicable inspection certificates/permits (boiler, elevator, emergency evacuation
plans, health inspection, etc.).
j) Final Maintenance and Operations Plan.
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Article 6 – DESIGNATED REPRESENTATIVES
Section 6.1 Department’s Designated Representative.
The Department designates the individual(s) identified in Exhibit I as i ts representative with
express authority to bind the Department with respect to all matters requiring the Department’s
approval or authorization. Subject to the limitations on their authority specified in Exhibit I ,
these representative(s) shall have the exclusive authority to make decisions on behalf of the
Department concerning estimates and schedules, construction budgets, changes in the Work,
and execution of Change Orders, Contract Modifications or Change Directives, and shall
render such decisions promptly and furnish information expeditiously, so as to avoid
unreasonable delay in the services or performance of the Work of the Design-Builder. In order
for the Department to effectively manage the Project and assure that the Design -Builder does
not receive conflicting instructions regarding the Work, the Design- Builder shall promptly
notify the Department’s representative upon receiving any instructions or other communication
in connection with the Design-Builder’s Work from any employee of the Department or other
purported agent of the Department other than the Department’s designated representative.
Section 6.2 Design-Bu ilder’s Designated Representative.
The Design-Bui lder designates the individual(s) identified in Exhibit H as its representative
with express authority to bind the Design- Builder with respect to all matters requiring the
Design-Builder’s approval or authorization. In addition, the Department retains the right to
approve candidates to serve as on- site personne l in accordance with each candidate’s
experience with similar projects and local marketplace conditions. Once approved, individuals
cannot be changed without the Department’s prior approva l. During the entire term of the
Agreement, it is agreed that the Design -Builder’s designated representative will devote his or
her time exclusively to the Project, unless the Department consents to a reduction in time. All
services provided by the Design-Builder shall be performed in accordance with the highest
professional standards recognized and adhered to by design-builders that build first-class state-
of-the-art buildings and projects that are similar to the Project in large urban areas.
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6 Article 7 – COMPENSATION AND PAYMENTS FOR DESIGN &
PRECONSTRUCTION PHASE SERVICES
Section 7.1 Compensation
Section 7.1.1 Th e Department shall compensate and make payments to the Design-Builder for
Design & Preconstruction Services in accordance with this Article 7 and Article 10 . For
Preconstruction Services, the Design-Builder’s compensation shall be as set forth in the Project
Information section of this Agreement (the “Preconstruction Fee”). The Preconstruction Fee
shall be the Design -Builder’s sole compensation for Preconstruction Phase Services. The
Preconstruction Fee shall include, but not be limited to, amounts necessary to compensate the
Design-Builder for:
• Profit;
• Home Office Overhead;
• Fringe Benefits associated with staff costs;
• Payroll taxes associated with staff costs;
• Staff costs associated with obtaining permits and approvals during the Design &
Preconstruction Phase;
• Out-of-house consultants;
• Travel, Living, and Relocation expenses;
• Job vehicles;
• Office equipment including but not limited to:
o Computer hardware and software;
o Fax machines; and
o Copying machines;
• Office supplies;
• Telephone; and
• Local delivery and overnight delivery costs.
Section 7.1.2 The Department shall compensate and make payments to the Design-Builder for
design services in accordance with Article 7 and Article 10. For design services, including
construction administration services provided during the construction phase, the Design-
Builder’s compensation shall not exceed the amount set forth in the Project Information section
of this Agreement (the “Design Fee”).
Section 7.2 Payments
Section 7.2.1 Payments for Design & Preconstruction Phase Services shall be made monthly
over the anticipated duration of the Design & Preconstruction Phase following presentation
and acceptance of the Design-Builder’s invoice and shall be in proportion to services
performed. In no event, however, will the aggregate of the Design-Builder’s monthly invoices
for Design & Preconstruction Phase Services exceed the Preconstruction Fee plus the Design
Fee.
Section 7.2.2 Payments are due and payable in accordance with Article 9 of this Agreement.
Amounts unpaid after the date of which payments are due shall bear interest in accordance with
the Quick Payment Act.
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7 Article 8 – COMPENSATION FOR CONSTRUCTION PHASE SERVICES
Section 8.1 Compensation.
The Department shall compensate and make payments to the Design-Builder for Construction
Phase Services in accordance with this Article 8 and Article 10. For the Construction Phase
Services, the Design -Builder’s total compensation shall be as set forth in the Project
Information section of this Agreement (the “Design-Build Fee. The Design-Build Fee shall be
billed in accordance with Article 10 , to be paid in equal monthly installments over the
anticipated duration of the Construction Phase. To the extent that the duration of the Agreement
is extended, the then remaining amounts of the Design-Build Fee will be re-allocated such that
the then -existing portion of the Design-Build Fee shall be evenly spread over the then
remaining duration of the Construction Phase.
Section 8.1.1 (Reserved).
Section 8.2 Lump Sum General Conditions Cost.
The Contractor shall propose a lump sum amount for the General Conditions Cost, and this
lump sum amount shall be the extent of what the Design-Builder is entitled to recover for the
cost of General Conditions (such cost, the “Lump Sum General Conditions Cost”). The Lump
Sum General Conditions Cost shall not be increased or decreased as a result of Change Orders
or Change Directives unless such changes: (i) extend the duration of the Project beyond the
time Substantial Completion Date; and (ii) the Design-Builder can demo nstrate to the
satisfaction of the Department that such additional General Conditions costs are necessary and
not due to any fault of the Design- Builder, its subcontractors, materialmen, consultants or
anyone making claims thereunder. To the extent the Design-Builder incurs General Conditions
Costs in excess of the Lump Sum General Conditions Cost, the Design-Builde r shall not be
entitled to reimbursement for such amounts unless the Department authorizes, by written
Contract Modification, an increase to the Lump Sum General Conditions Cost. Nonetheless, in
such an event, if the Design Builder exceeds the Lump Sum General Conditions Cost, the
Design-Builder shall continue to be required to adequately staff the Project and provide all
Construction Services.
Section 8.3 Initial Not-to-Exceed Amount.
Unless and until the GMP Amendment is executed and approved by the Council for the District
of C
olumbia, this Agreement shall have an initial not -to-exceed amount as set forth in the
Project Information section of this Agreement (the “Initial NTE”) as further described in
Exhibit X. In no event shall the Design- Builder be entitled to recover more than the Initial
NTE unless the Design-Builder is authorized to exceed the Initial NTE by the Department in
advance and in writing. Prior to expending or committing any portion of the Initial NTE, the
Design-Builder shall obtain the Department’s written approval of such expenditure or
commitment, as well as a determination as to whether the work will qualify as a “capital”
expense under the Department’s financial guidelines to the extent capital money is to be
expended. In making such a request, the Design-Builder shall submit an itemized breakdown
of the work that the Design- Builder seeks to release using funds from the Initial NTE as well
as the associated costs of such work.
Section 8.4 Project Budget.
Th
e Department has established the Project Budget as set forth in the Information section of
this Agreement. When the GMP is established, such GMP shall not exceed the Project Budget,
and such GMP shall include any and all amounts which may be due to the Design-Builder
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pursuant to this Agreement. In no event shall the Design- Builder be entitled to recover more
than the GMP unless the Design-Builder is authorized to exceed the GMP by the Department
in advance and in writing. The Design -Builder shall inform the Department's Contracting
Officer within fifteen (15) calendar days of when the Design-Builder encounters any foreseen
or unforeseen Project related events, which might reasonably affect (i) existing Project Budget;
or (ii) DC council-authorized appropriations.
Section 8.5 No Adjustments to Fee.
It is the Department’s intent to engage the Design -Bui lder to develop a GMP that meets the
programmatic requirements set forth by the Client Agency and the Project Budget as set forth
herein (i.e. designed to budget), to allow for Substantial Completion of the Work to be achieved
no later than the Substantial Completion Date . The Design- Builder shall be entitled to an
adjustment to the Design-Build Fee at the time the GMP is established to the extent, and only
to the extent, that: (i) the Department makes additions to the scope that, when measured relative
to the program, cause the GMP to exceed the Design-Builder’s original concept estimate by
more than five percent (5%); or (ii) the Department makes additions to the scope provided for
herein which (other than for punchlist or warranty work) which requires the Design-Builder’s
services at the Project to extend 30 days or more beyond the Substantial Completion Date.
With regard to Change Orders issued after the GMP is established, and in accordance with
Section 18.8, the Design-Builder shall be entitled to an increase in the Design-Build Fee to the
extent, and only to the extent, that: (i) the Department has added a new programmatic element
to the Project; or (ii) the Department made additions to the GMP scope which (other than
punchlist or warranty work) require the Design- Builder’s services at the Project to extend 30
days or more beyond the Substantial Completion Date.
Section 8.6 Reserved
Se
ction 8.7 Direct Cost of Work
“Direct Cost of the Work” shall mean labor, material , and other costs reasonably and
necessarily incurred in the proper performance of the Work as approved by the Department
and shall include, but not be limited to:
Section 8.7.1 Labor. Payment will be made for direct labor costs plus indirect labor costs such
as insurance, taxes, fringe benefits and welfare provided such costs are considered reasonable.
Indirect costs shall be itemized and verified by receipted invoices. If verification is not possible,
up to five percent (5%) of direct labor costs may be allowed.
Section 8.7.2 Rented Equipment. Payment for required equipment rented from an outside
company that is neither an affiliate of nor a subsidiary of, the Design-Builder will be based on
receipted invoices which shall not exceed rates given in the current edition of the Rental Rate
Blue Book for Construction Equipment published online by Data Quest. If actual rental rates
exceed manual rates, written justification shall be furnished to the Contracting Officer for
consideration. No additional allowance will be made for overhead and profit. The Design-
Builder shall submit written certification to the Contracting Officer that any required rented
equipment is neither owned by nor rented from the Design-Builder or an affiliate of or
subsidiary of the Design-Builder.
Section 8.7.3 Design-Builder’s Equipment. Payment for required equipment owned by the
Design-Builder or an affiliate of the Design -Builder will be based solely on an hourly rate
derived by dividing the current appropriate monthly rate by 176 hours. No payment will be
made under any circumstances for repair costs, freight and transportation charges, fuel,
Page 50 of 121
lubricants, insurance, any other costs, and expenses, or overhead and profit. Payment for such
equipment made idle by delays attributable to the Government will be based on one -half the
derived hourly rate under this subsection.
Section 8.7.4 Materials. I ncorporated and unincorporated materials as permitted under
Section 9.1.
Section 8.7.5 Direct Cost of the Work does not, however, include home office overhead, field
supervision, general conditions, or profit of either the subcontractor or the Design-Builder. No
personnel above the level of a working foreman shall be considered a Direct Cost of the Work.
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Article 9 – COST OF THE WORK FOR CONSTRUCTION PHASE
Section 9.1 Cost of the Work.
The term “Cost of the Work” shall mean the costs necessarily incurred by the Design -Builder
in the proper performance of the Work and shall include only the following:
Section 9.1.1 Payments made by the Design-Builder to Subcontractor and suppliers, other than
design subconsultants, but only in accordance with the subcontracts and supply agreements;
Section 9.1.2 Payments made by the Design- Bui lder to its design consultants and sub-
consultants; provided, however, that the Design-Builder shall not be reimbursed for the costs
of design services and construction administration services in excess of the Design Fee;
Section 9.1.3 All amounts due to the Design -Bui lder under the terms of the Department ’s
written authorization for the Design- Builder to perform any portion of the Work as Self -
Performed Work. If authorization for the Design -Builder to engage in Self -Performed Work
is not on a fixed-price basis, then, as to that Work, the following costs shall be within the Cost
of the Work:
(a) Labor. Properly documented wages actually paid to Project foremen, construction
workers, and other personnel in the direct employ of the Design-Builder, while engaged
in approved Self -Performed Work, together with contributions, assessments, payroll
taxes, or fringe benefits required by the laws or applicable collective bargaining
agreements.
(b) Incorporated Materials. The cost, net of trade discounts, of all materials, products,
supplies, and equipment incorporated into the Self-Performed Work, including, without
limitation, costs of transportation and handling.
(c) Unincorporated Materials. The cost of materials, products, supplies, and equipment
not actually installed or incorporated into the Self -Performed Work, but required to
provide a reasonable allowance for waste or spoilage, subject to the Design- Builder’s
agreement to turn unused excess materials over to the Department at the completion of
the Project or, at the Department’s option, to sell the material and pay the proceeds to
the Department or give the Department a credit in the amount of the proceeds against
the Cost of the Work.
Section 9.1.4 Royalty and license fees paid for use of a design, process, or product if its use is
required by this Agreement or has been approved in advance by the Department;
Section 9.1.5 Fees for obtaining all required approvals or permits associated with any
abatement, demolition, utilities abandonment, and utility relocation (including utility
connection fees), including any and all building and/or trade permits fees;
Section 9.1.6 All performance and payment bonds and general liability insurance. The
Department may, in its sole discretion, allow the Design -Builder to recover the costs of
subcontractor default insurance at a mutually agreed -upon rate in lieu of trade level bonds,
provided that such insurance be approved by the Department in advance and after being
presented with a cost-benefit analysis of such use;
Section 9.1.7 All fees and other costs necessarily incurred to carry out testing and inspection
required by the Agreement or applicable laws, or otherwise to maintain proper quality
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assurance. The costs the Design -Builder incurs to schedule and coordinate any additional
testing and inspections the Department may decide to conduct itself shall be within the Cost of
the Work unless the additional testing establishes that the Work tested was defective or
otherwise failed to satisfy requirements set forth in the Agreement, in which case the Design-
Builder shall pay the costs, without reimbursement;
Section 9.1.8 All bonds to jurisdictional agencies (utilities, stormwater management, land
disturbance, and grading);
Section 9.1.9 The Lump Sum General Conditions Cost; and
Section 9.1.10 Costs of repairing or correcting damaged or nonconforming Work executed by
the Design -Builder’s Architect , or Design- Builder’s other consultants, Subcontractor, or
suppliers, provided that such damaged or nonconforming Work was not caused by negligence
or failure to fulfill a specific responsibility of the Design-Builder, and only to the extent that
the cost of repair or correction is not recoverable by the Desig n-Builder from insurance,
sureties, subcontractor or suppliers. It is understood that the cost of repairing, correcting
damaged or nonconforming Work that was Self -Performed shall not be reimbursable in any
event.
Section 9.2 Lump Sum General Conditions Cost.
The Contractor’s Lump Sum General Conditions Cost shall be the extent of what the Contractor
is entitled to recover for the cost of General Conditions. General Conditions may include, but
are not limited to:
a. Cost of construction staff;
b. Fringe Benefits associated with construction staff;
c. Payroll taxes and payroll insurance associated with construction staff;
d. Staff costs associated with obtaining permits and approvals;
e. Out-of-house consultants, including, but not limited to, permit expeditors, safety
managers, and schedulers;
f. Job vehicles;
g. The field office(s) for the Design- Builder and Department, including, but not limited
to: (i) trailer purchase and/or rental; (ii) field office installation, relocation and removal;
(iii) utility connections and charges during the Construction Phase; (iv) furniture; and
(v) office supplies;
h. Office equipment including, but not limited to: (i) computer hardware and software; (ii)
fax machines; (iii) copying machines; (iv) voice/data system installation and use
charges; and (v) job radios;
i. Local delivery and overnight delivery costs;
j. Field computer network;
k. First aid facility;
l. Printing cost for drawings, bid packages, etc.;
m. BIM Cost (software, seats, hardware);
n. Parking costs for the construction staff;
o. Salting sidewalks and shoveling snow on sidewalks that surround the site; and
p. Exterior site fencing, fence wrapping and construction signage.
Section 9.3 Costs Not to Be Reimbursed.
All costs not specifically listed in Section 9.1 as being within the Cost of the Work are excluded
from the Cost of the Work and shall not be reimbursable. In particular, but without limitation,
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the Cost of the Work does not include any of the following:
a) Any personnel or labor costs other than those provided for in Section 9.1. 3 (a).
b) Fees for any permits or licenses the Design -Builder requires to conduct its general
business operations.
c) Capital expenses and interest on capital employed for the Work.
d) The cost of home or regional offices, it being understood that compensation for such
costs included in the Design-Build Fee.
e) Sales or use taxes unless the Design -Builder establishes that applicable law required
payment of such taxes.
f) Costs due to the errors or omissions of the Design- Builder or its subcontractor or
suppliers at all tiers, negligent or otherwise.
g) Costs dues to breach of Contract by the Design-Builder or its subcontractor or material
suppliers at all tiers, including, without limitation, costs arising from defective or
damaged work or its correction, disposal of materials or equipment erroneously
supplied, and repairs to property damaged by the Design-Builder or its subcontractor
or material suppliers at all tiers.
h) Any costs incurred in performing work of any kind before Preconstruction NTP unless
specifically authorized by the Department in advance and in writing.
i) Direct or indirect costs of any kind, except those expressly included in Section 9.1 .
Section 9.4 Discounts, Rebates, And Refunds.
Section 9.4.1 Cash discounts obtained on payments made by the Design- Builder shall accrue
to the Department if: (i) before making such payment(s), the Design-Builder included them in
an Application for Payment and received payment therefor from the Department; or (ii) the
Department has deposited funds with the Design-Builder with which to make such payment(s).
All other cash discounts shall accrue to the Design-Builder. Trade discounts, rebates, refunds
and amounts received from sales of surplus materials and equipment shall accrue to the
Department, and the Design- Builder shall make provisions so that such amounts can be
secured.
Section 9.4.2 A mounts that accrue to the Department in accordance with the provisions of
Section 9.4.1 shall be credited to the Department as a deduction from the Cost of the Work.
Section 9.5 Facilitating Tax Exempt Purchases.
The Department expects that the Project will qualify as tax -exempt under applicable laws.
Upon request, the Department will provide the Design-Builder with the necessary information
relating to the tax exemption. In the event that any savings are attributable to the tax- exempt
status of the Project, the Design-Builder shall not be entitled to share in such savings.
Section 9.6 Accounting Records.
The Design-Builder shall keep full and detailed accounts and exercise such controls as may be
necessary for proper financial management under the Agreement. The Design -Builder’s
accounting and control systems shall be satisfactory to the Department. The D epartment, its
representatives, and the Department’s accountants shall be afforded access to the Design-
Builder’s records, books, correspondence, instruction, drawings, receipts, subcontracts,
purchase orders, vouchers, memoranda, and other data relating to this Project, and the Design-
Builder shall preserve such Project documentation relating to the Project for a period of three
years after final payment, or for such longer period as may be required by law.
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Section 9.7 Excluded Cost Elements.
It is the Department’s intent that the Design -Builder provides a turnkey solution for the
implementation of the Project, and the Project Budget set herein has been developed based on
such a framework. The Design-Builder shall advance the Project in a manner consistent with
such budget and the understanding that only the commissioning excluded from the Project
Budget set forth herein.
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9 Article –10 - CONSTRUCTION PHASE PAYMENTS
Section 10.1 Progress Payments.
The Design -Builder shall be compensated in a series of progress payments and a Final
Payment, for Work completed in accordance with the Agreement, and for which proper
Applications for Payment have been submitted and approved. The amount of each progress
payment shall be as follows:
The Cost of Work completed to date
Plus Cost of Work for Pay Period x 60% Design -B uild Fee
Current approved estimated
Cost of Work through Final Completion
Plus Any subset of the Design- Build Fee to which the Department has determined
the Design-Builder to be Entitled
Minus Applicable retainage
Minus Amounts previously paid by the Department
Section 10.2 Retention.
The Department shall withhold from each progress payment an amount equal to ten percent
(10%) of the payment related to: (i) each Subcontract and supply agreement; (ii) the
Preconstruction Fee; (iii) Design-Build Fee; (iv) General Conditions Costs; and (v) the Cost of
the Work-related to each item of Self-Performed Work, until such time as fifty percent (50%)
of the then currently budgeted cost associated with each such item has been invoiced, at which
point the Department may cease retaining against such item; provided, however, that retention
shall not be held on the costs of bonds, insurances, and those elements of the ge neral
requirements which consist of a single, insolated effort such as dumpster disposal and safety
carpentry. The Department at its sole and absolute discretion may elect to increase the retention
of any trade subcontractor up to ten percent (10%), in the event the Department determines that
the situation so warrants. The Department also in its sole and absolute discretion, may elect to
reduce the retainage relating to a particular trade subcontractor, or the Cost of the Work-related
to a specific item o f Self-Performed Work to zero upon: (a) satisfactory completion of such
Work; (b) submission of all required warranties, certifications, and operating or maintenance
instructions with respect to that Work; and (c) execution of appropriate waivers of lien and
releases of claims. However, in no event shall the total retainage held by the Department be
reduced to an amount that is less than two and one-half percent (2.5%) of the GMP.
Section 10.3 Stored Materials.
The Department shall not be required to pay for materials stored at the site or stored at other
locations absent prior written authorization to do so, which authorization may be withheld at
the Department's sole discretion. If the Department expressly agrees to pay for materials stored
at the site but not yet incorporated into the Work, the Application for Payment may also include
a request for payment of the cost of such materials, if the materials have been delivered to the
site, and suitably stored. Such requests shall be documented by appropriate invoices and bills
of sale. Payment for stored materials shall be conditioned also on the Design- Builder’s
representation that it has inspected the material and found it to be free from defect and
otherwise in conformity with this Agreement, and on satisfactory evidence that the materials
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are insured under the builder’s risk policy. Further, if the Design- Builder requests the
Department to allow payments for storage of materials offsite, the Design -Builder shall be
required, inter alia, to agree to the execution of proper Project documentation to afford the
Department a secured interest in the materials upon payment.
Section 10.4 Design-Builder’s Certification.
Each Application for Payment shall be accompanied by the Design- Builder's signed
certification that:
Section 10.4.1. all amounts paid to the Design-Builder on the previous Application for
Payment that were attributable to subcontractor w ork or to materials or equipment being
supplied by any supplier have been paid over to the appropriate Subcontractor and suppliers;
Section 10.4.2. that all amounts currently sought for subcontractor work or supply of materials
or equipment are currently due and owing to the Subcontractor and material or equipment
suppliers;
Section 10.4.3. that all Work, materials or equipment for which payment is sought is, to the
best of the Design-Builder's knowledge, free from defect and meets all of the requirements set
forth in the Agreement:
Section 10.4.4. that the Design -Builder’s subcontracts include the clauses required by
subparagraphs (1) through (4) of D.C. Official Code §2-221.02(d) (2017).
Section 10.4.5. The Design-Builder shall not include in an Application for Payment amounts
for Work for which the Design-Builder does not intend to pay.
Section 10.6 Lien Waivers.
Each Application for Payment shall be accompanied by written waivers of the right to file a
mec
hanic’s lien and all other claims, in a form substantially similar to Exhibit K for the
Design-Builder and all Subcontractor and material suppliers at all tiers who have supplied labor
or material or both for which payment is requested, subject only to the receipt of payment. If
the Department so requests, the Design-Builder shall also submit unconditional waivers of liens
for itself and all Subcontractor and ma terial suppliers at all tiers with respect to Work or
materials or equipment for which payment has been previously made, and additional forms of
waiver acknowledging receipt of final payment under the Agreement, and providing final
release of such liens.
Section 10.7 Warranty of Title.
By s
ubmitting an Application for Payment, the Design-Builder warrants to the Department that
title to all Work for which payment is sought will pass to the Department, without liens, claims,
or other encumbrances, upon the receipt of payment by the Department. The Department may
require execution of appropriate Project documents to confirm passage of clear title. Passage
of title shall not operate to pass the risk of loss with respect to the Work in question. Risk of
loss remains with the Design-Builder until Substantial Completion, unless otherwise agreed by
the Department, in writing.
Section 10.8 Submission.
On the twenty- fifth day of each month, the Design-Builder shall submit to the Department
(with a copy to the Program Manager) an Application for Payment, which Application for
Payment shall cover the entire month during which the Application for Payment is submitted.
All amounts formally submitted via Application for Payment and not disputed by the
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Department shall be due and payable on the last day of the month following submission or, if
that is not a business day, on the following business day. If the Design-Builder and Department
are unable to agree on the amounts properly due and owing, the Department shall pay in
accordance with its good faith determination, and the Design-Builder may protest and pursue
a claim as provided in this Agreement and the Standard Contract Provisions (Construction
Contracts and Architectural and Engineering Services Contracts).
Section 10.9 Right to Withhold Payments.
The Department will notify the Design -Builder within fifteen (15) days after receiving any
Application for Payment of any defect in the Application for Payment or the Design-Builder’s
performance which may result in the Department’s declining to pay all or a part of the requested
amount. The Department may withhold payment from the Design-Builder, in whole or part,
as appropriate, if:
Section 10.9.1 the Work is defective and such defects have not been remedied; or
Section 10.9.2 the Department has determined that the Design -Builder’s progress has fallen
behind the Project Schedule, and the Design-Builder fails, within ten (10) calendar days of the
Department’s written demand, to provide the Department with a realistic and acceptab le
Recovery Plan in accordance with Section 5.19; or
Section 10.9.3 the Design-Builder's monthly schedule update reflects that the Design-Builder
has fallen behind the Project Schedule, and the Design- Builder fails to include, in the same
monthly report, a realistic and acceptable Recovery Plan in accordance with Section 5.19; or
Section 10.9.4 the Design -Builder has failed to provide reports in full compliance with
Section 5.5 of this Agreement; or
Section 10.9.5 the Design-Builder has failed to pay subcontractor or suppliers promptly or has
made false or inaccurate certifications that payments to subcontractor or suppliers are due or
have been made; or
Section 10.9.6 any mechanic’s lien has been filed against the Department, the site or any
portion thereof or interest therein, or any improvements on the site, even though the
Department has paid all undisputed amounts due to the Design- Builder, and the Design-
Builder, upon notice, has failed to remove the lien, by bonding it off or otherwise, within ten
(10) calendar days; or
Section 10.9.7 the Department has reasonable evidence that the Work will not be completed
by the Substantial Completion Date, as required, that the unpaid balance of the GMP would
not be adequate to cover actual or liquidated damages arising from the anticipated delay; or
Section 10.9.10 the Department has reasonable evidence that the Work cannot be completed
for the unpaid balance of the GMP; or
Section 10.9.11 the Design- Builder is otherwise in substantial breach of this Agreement
including, without limitation, failures to comply with LSDBE Utilization requirements; or
Section 10.9.12 the Application for Payment is incomplete, unsubstantiated, and/or does not
contain sufficient documentation for evaluation by the Contracting Officer.
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Section 10.10 Payment Not Acceptance.
Payment of any progress payment or final payment shall not constitute acceptance of Work
that is defective or otherwise fails to conform to the Agreement or a waiver of any rights or
remedies the Department may have with respect to defective or nonconforming Work.
Section 10.11 Department Not Obligated to Others.
The Department shall have no obligation to pay or be responsible in any way for payments to
a consultant or subcontractor performing portions of the Work.
Section 10.12 Final Payment.
A final payment (“Final Payment”) shall be made by the Department to the Design -B uilder
when: (i) Final Completion has been achieved; (ii) all deliverables set forth in Section 5.14,
and Exhibit N have been delivered to and are accepted by the Department; (iii) the Design -
Builder provides the Department a complete set of product manuals (“O&M”), training videos,
and warranties, as applicable; and (iv) a complete final Application for Payment and a final
accounting for the Cost of the Work has been submitted by the Design-Builder and reviewed
by the Department and, to the extent the Department determines appropriate, the Department’s
accountants. The Department shall make Final Payment not more than thirty (30) days after
the Department verifies the amount of the final payment set forth in a complete final
Application for Payment.
Section 10.12.1 The amount of the Final Payment shall be calculated as follows:
Se
ction 10.12.1.1 Take the sum of the Cost of the Work substantiated by the Design-
Builder’s final accounting and the Design-Build Fee; but not more than the GMP.
Section 10.12.1.2 Subtract amounts, if any, for which the Department withholds
pursuant to the Agreement.
Section 10.12.1.3 Subtract the aggregate of previous payments made by the
Department. (If the aggregate of previous payments made by the Department exceeds
the amount due the Design- Builder, the Design- Builder shall promptly reimburse the
difference to the Department).
Section 10.12.1.4 The Final Payment shall take into account any savings accruing to
the Department or the Design-Builder.
Section 10.12.1.5 The Department will review and report in writing on the Design-
Builder’s final accounting within 30 days after delivery of the final accounting to the
Department by the Design-Builder. Based upon Department’s determination of the
Cost of the Work, and provided the other conditions of Section 10.12.1 have been met,
the Department will, within fifteen (15) days after the Department’s determination,
notify the Design-Builder of any amount that the Department will withhold and the
reasons therefor. The time periods stated in this Section 10.12.1.5 supersede those for
typical progress payments.
Section 10.12.1.6 If the Department determines that the Cost of the Work is other than
tha
t claimed by the Design-Builder, the Design-Builder shall be entitled to proceed in
accordance with Article 3 of the Standard Contract Provisions (Construction
Contracts). Pending a final resolution of the disputed amount, the Department shall pay
the Design-Builder the amount that the Department determines to be appropriate.
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Article–11 – INSURANCE REQUIREMENTS
Section 11.1 GENERAL REQUIREMENTS
A. GENERAL REQUIREMENTS. The Contractor at its sole expense shall procure and
maintain, during the entire period of performance under this contract, the types of
insurance specified below. The Contractor shall submit a Certificate of Insurance to
the Contracting Officer (CO) giving evidence of the required coverage prior to
commencing performance under this contract. In no event shall any work be performed
until the required Certificates of Insurance signed by an authorized representative of
the insurer(s) have been provided to, and accepted by, the CO.
The Government of the District of Columbia shall be included in all policies, where
applicable and allowable by law, required hereunder to be maintained by the Contractor
and its subcontractors (except for workers’ compensation and professional liability
insurance) as an additional insureds for claims against The Government of the District
of Columbia relating to this contract, with the understanding that any affirmative
obligation imposed upon the insured Contractor or its subcontractors (including without
limitation the liability to pay premiums) shall be the sole obligation of the Contractor
or its subcontractors, and not the additional insured. The additional insured status under
the Contractor’s and its subcontractors’ Commercial General Liability insurance
policies shall be effected using the ISO Additional Insured Endorsement form CG 20
10 11 85 (or CG 20 10 07 04 and CG 20 37 07 04) or such other endorsement or
combination of endorsements providing coverage at least as broad and approved by the
CO in writing. All of the Contractor’s and its subcontractors’ liability policies (except
for workers’ compensation and professional liability insurance) shall be endorsed using
ISO form CG 20 01 04 13 or its equivalent so as to indicate that such policies provide
primary coverage (without any right of contribution by any other insurance, reinsurance
or self-insurance, including any deductible or retention, maintained by an Additional
Insured) for all claims against the additional insured arising out of the performance of
this Statement of Work by the Contractor or its subcontractors, or anyone for whom the
Contractor or its subcontractors may be liable. These policies shall include a separation
of insureds clause applicable to the additional insured.
If the Contractor and/or its subcontractors maintain broader coverage and/or higher
limits than the minimums shown below, the District requires and shall be entitled to the
broader coverage and/or the higher limits maintained by the Contractor and
subcontractors.
B. INSURANCE REQUIREMENTS
1. Commercial General Liability Insurance (“CGL”) - The Contractor shall provide
evidence satisfactory to the CO with respect to the services performed that it carries a
CGL policy, written on an occurrence (not claims -made) basis, on Insurance Services
Office, Inc. (“ISO”) form CG 00 01 04 13 (or another occurrence -based form with
coverage at least as broad and approved by the CO in writing), covering liability for all
ongoing and completed operations of the Contractor and under all subcontracts,
covering claims for bodily injury, including without limitation sickness, disease or
death and mental anguish of any persons, broad form property damage, including loss
of use resulting therefrom, personal and advertising injury, and including coverage for
liability arising out of an Insured Contract (including the tort liability of another assumed
in a contract) and acts of terrorism (whether caused by a foreign or domestic source). Such
coverage shall have limits of liability of not less than $1,000,000 for each occurrence,
and a $2,000,000 general aggregate.
The Commercial General Liability shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insured coverage
using ISO form CG 2015 0413 (or its equivalent) to The Government of the
District of Columbia
b) Coverage available to the additional insureds shall apply on a primary and
non-contributing basis as respects any other insurance, deductibles, or self-
insurance available to the additional insureds
c) A waiver of subrogation in favor of The Government of the District of
Columbia
d) Any Annual Aggregate shall apply on a per location or per project basis
(where applicable)
e) Defense costs shall be in addition to and not erode the limits of liability
2. Automobile Liability Insurance - The Contractor shall provide evidence satisfactory to
the CO of commercial (business) automobile liability insurance written on ISO form
CA 00 01 10 13 (or another form with coverage at least as broad and approved by the
CO in writing) including coverage for all owned, hired, borrowed and non-owned
vehicles and equipment used by the Contractor in connection with work under this
agreement, with a minimum combined single limit of $1,000,000 for bodily injury or
death and property damage, including loss of use thereof. Such policy or policies of
automobile liability insurance shall be written on an "occurrence" (as opposed to a
"claims made") basis.
Au
to Physical Damage Coverage - The Contractor shall provide auto physical damage
insurance to cover "loss" to a covered "auto" or its equipment:
a) Comprehensive - Fire, lightning or explosion; theft; windstorm, hail or
earthquake; flood; mischief or vandalism; or the sinking, burning, collision
or derailment of any conveyance transporting the covered "auto".
b) Collision Coverage - Caused by: The covered "auto's" collision with another
object or the covered "auto's" overturn.
The Commercial Auto Liability policy shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insured coverage
to The Government of the District of Columbia
b) Coverage available to the additional insureds shall apply on a primary and
non-contributing basis as respects any other insurance, deductibles, or self-
insurance available to the additional insureds
c) A waiver of subrogation in favor of The Government of the District of
Columbia
d) Defense costs shall be in addition to and not erode the limits of liability
e) If applicable, include Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Business Auto, Motor Carrier, and Truckers
(or its equivalent)
3. Workers’ Compensation Insurance - The Contractor shall provide evidence satisfactory
to the CO of Workers’ Compensation insurance in accordance with the statutory
mandates of the District of Columbia or the jurisdiction in which the contract is
performed.
Employer’s Liability Insurance - The Contractor shall provide evidence satisfactory to
the CO of employer’s liability insurance as follows: $500,000 per accident for injury;
$500,000 per employee for disease; and $500,000 for policy disease limit.
T
he Workers Compensation and Employers Liability shall be further endorsed to:
a) Include a Waiver of Subrogation in favor of The Government of the District of
Columbia.
b) Where applicable, include United States Longshore and Harbor Workers
Compensation Act (USL&H)
c) Where applicable, include Jones Act Coverage for seamen or crew members on
an “if any” basis.
4. Network Security/Privacy (Cyber) Liability I nsurance covering acts, errors, omissions,
breach of contract, and violation of any consumer protection laws arising out of
Contractor’s operations or services with a limit of $2,000,000 per claim and in the
aggregate. Such coverage shall include but not be limited to, third party and first party
coverage for loss or disclosure of any data, including personally identifiable
information and payment card information, network security failure, violation of any
consumer protection laws, unauthorized access and/or use or other intrusions,
infringement of any intellectual property rights (except patent), unintentional breach of
contract, negligence or breach of duty to use reasonable care, breach of any duty of
confidentiality, invasion of privacy, or violations of any other legal protections for
personal information, defamation, libel, slander, commercial disparagement, negligent
transmission of computer virus, or use of computer networks in connection with denial
of service attacks. Such coverage shall include regulatory defense and fines/penalties
in any jurisdiction anywhere in the world. Such coverage shall include contractual
privacy coverage for data breach response and crisis management costs that would be
incurred by Contractor on behalf of The Government of the District of Columbia in the
event of a data breach including legal and forensic expenses, notification costs, credit
monitoring costs, and costs to operate a call center. Contractor shall maintain coverage
in force during the term of this Agreement and for an extended reporting period of not
less than two (2) years after.
5. Professional Liability Insurance (Errors & Omissions) - The Contractor shall provide
Professional Liability Insurance (Errors and Omissions) to cover liability resulting from
any error or omission in the performance of professional services under this Contract.
The policy shall provide limits of $1,000,000 per claim or per occurrence for each
wrongful act and $2,000,000 annual aggregate. The Contractor warrants that any
applicable retroactive date precedes the date the Contractor first performed any
professional services for the Government of the District of Columbia and that
continuous coverage will be maintained or an extended reporting period will be
exercised for a period of at least ten years after the completion of the professional
services. Limits may not be shared with other lines of coverage.
6. Commercial Umbrella or Excess Liability - The Contractor shall provide evidence
satisfactory to the CO of commercial umbrella or excess liability insurance with
minimum limits of $5,000,000 per occurrence and $5,000,000 in the annual aggregate,
following the form and in excess of all liability policies. All liability coverages must be
scheduled under the umbrella and/or excess policy. The insurance required under this
paragraph shall be written in a form that annually reinstates all required limits.
Coverage shall be primary to any insurance, self-insurance or reinsurance maint ained
by The Government of the District of Columbia and the “other insurance” provision
must be amended in accordance with this requirement and principles of vertical
exhaustion.
7. Crime Insurance (3rd Party Indemnity) - The Contractor shall provide a Crime policy
including 3rd party fidelity to cover the dishonest acts of Contractor s, its employees
and/or volunteers which result in a loss to the District. The Government of the District
of Columbia shall be included as loss payee. The policy shall provide a limit of $15,000
per occurrence.
8. Environmental Liability/Contractors Pollution Liability Insurance - The Contractor
shall provide evidence satisfactory to the CO of environmental liability insurance
covering losses caused by pollution or other hazardous conditions arising from ongoing
or completed operations of the Contractor. Such insurance shall apply to bodily injury,
property damage (including loss of use of damaged property or of property that has
been physically injured), clean -up costs, transit and non- owned disposal sites.
Coverage shall extend to defense costs and expenses incurred in the investigation, civil
fines, penalties and damages or settlements. There shall be neither an exclusion nor a
sublimit for mold or fungus -related claims. The minimum limits required under this
paragraph shall be $2,000,000 per occurrence and $2,000,000 in the annual aggregate.
If such coverage is written on a claims -made basis, the Contractor warrants that any
retroactive date applicable to coverages under the policy precedes the Contractor’s
performance of any work under the Contract and that continuous completed operations
coverage will be maintained for at least ten (10) years or an extended reporting period
shall be purchased for no less than ten (10) years after completion.
The Contractor also must furnish to the CO Owner certificates of insurance
evidencing environmental liability insurance maintained by third party
transportation and disposal site operators(s) used by the Contractor for losses
arising from facility(ies) accepting, storing or disposing hazardous materials or
other waste as a result of the Contractor’s operations. Such coverages must be
maintained with limits of at least the amounts set forth above.
The Environmental Liability policy shall be further endorsed to include The
Government of the District of Columbia as an Additional Insured.
9. Installation-F loater Insurance - For projects not involving structural alterations, the
contractor shall provide an installation floater policy with a limit equal to the Property
values being installed as part of the project. The policy shall cover property while
located at the project site, at temporary locations, or in transit; deductibles will be the
sole responsibility of the contractor.
10. Sexual/Physical Abuse & Molestation - The Contractor shall provide evidence
satisfactory to the CO with respect to the services performed that it carries $1,000,000
per occurrence limits; $2,000,000 aggregate of affirmative abuse and molestation
liability coverage. Coverage should include physical abuse, such as sexual or other
bodily harm and non-physical abuse, such as verbal, emotional, or mental abuse; any
actual, threatened or alleged act; errors, omission or misconduct. This insurance
requirement will be considered met if the general liability insurance includes an
affirmative sexual abuse and molestation endorsement for the required amounts or
through a separate stand-alone sexual abuse and molestation policy with confirmation
there are no exclusion s for abuse or assault & battery under the General Liability. So
called “silent” coverage or “shared” limits under a commercial general liability or
professional liability policy will not be acceptable. Limits may not be shared with other
lines of coverage. The applicable policy may need to be submitted to the ORM for
compliance review.
C. SUB
CONTRACTOR INSURANCE REQUIREMENTS
Any and all subcontractors engaged by Contractor for work under this agreement shall
be required to have the same insured required of Contractor. Should the Contractor
wish to propose different insurance requirements than outlined below, then, prior to
commencement of work by the subcontractor, the Contractor shall submit in writing
the name and brief description of work to be performed by the subcontractor on the
Subcontractors Insurance Requirement Template provided to the Office of Risk
Management (ORM). ORM will determine the insurance requirements applicable to the
subcontractor and promptly deliver such requirements in writing to the Contractor. In
either instance, the Contractor must provide proof of the subcontractor's required
insurance prior to commencement of work by the subcontractor.
D. PRIMARY AND NONCONTRIBUTORY INSURANCE
The insurance required herein shall be primary to and will not seek contribution from
any other insurance, reinsurance or self-insurance including any deductible or retention,
maintained by the Government of the District of Columbia.
E. DURATION. The Contractor shall carry all required insurance until all contract work
is accepted by The Government of the District of Columbia and shall carry listed
coverages for ten years for construction projects following final acceptance of the work
performed under this contract and two years for non-construction related contracts.
F. LIABILITY. These are the required minimum insurance requirements established by
The Government of the District of Columbia . However, it is understood that The
Government of the District of Columbia does not in any way represent that the
insurance or the limits of insurance specified herein are sufficient or adequate to protect
your interests or liabilities and will not in any way limit the contractor’s liability under
this contract.
G. CONTRACTOR’S PROPERTY. Contractor and subcontractors are solely responsible
for any loss or damage to their personal property, including but not limited to tools and
equipment, scaffolding, and temporary structures, rented machinery, or owned and
leased equipment. A waiver of subrogation shall apply in favor of The Government of
the District of Columbia.
H. MEASURE OF PAYMENT . The Government of the District of Columbia shall not
make any separate measure or payment for the cost of insurance and bonds. The
Contractor shall include all of the costs of insurance and bonds in the contract price.
I. NOTIFICATION. The Contractor shall ensure that all policies provide that the CO
shall be given thirty (30) days prior written notice in the event of cancellation, non-
renewal, or material changes to the extent such cancellation or material changes results
in Contractor no long complying with the above requirements. The Contractor shall
provide the CO with ten (10) days’ prior written notice in the event of non-payment of
premium. The Contractor will also provide the CO with an updated Certificate of
Insurance should its insurance coverages renew during the contract. The Government
of the District of Columbia may reasonably change the above insurance coverage
requirements during the Term by giving Contractor at least 30 days’ notice of the
change. Contractor must comply, at your expense, and deliver to the CO evidence of
compliance before the change becomes effective.
J. CERTIFICATES OF INSURANCE. The Contractor must send to CO, at least 10 days
after execution of this Agreement, certificates of insurance evidencing the required
insurance coverage and endorsements required herein. Contractor must also provide us
with evidence of renewal before the expiration date of each insurance policy. Contractor
is responsible for providing us with 30 days advanced written notice if the certificate
of insurance by the insurer has been canceled, reduced in coverage, or otherwise altered.
Certificates of insurance must reference the corresponding contract number. Evidence
of insurance shall be submitted to:
The Government of the District of Columbia
And emailed to the attention of:
Peter Henry Lyonga
Contracting Officer
Department of General Services
Contracts & Procurement Division
3924 Minnesota Avenue NE, 5th Floor
Washington, DC 20019
Peterhenry.lyonga@dc.gov
The CO may request and the Contractor shall promptly deliver updated certificates of
insurance, endorsements indicating the required coverages, and/or certified copies of
the insurance policies. If the insurance initially obtained by the Contractor expires prior
to completion of the contract, renewal certificates of insurance and additional insured
and other endorsements shall be furnished to the CO prior to the date of expiration of
all such initial insurance. For all coverage required to be maintained after completion,
an additional certificate of insurance evidencing such coverage shall be submitted to
the CO on an annual basis as the coverage is renewed (or replaced).
K. DISCLOSURE OF INFORMATION. The Contractor agrees that The Government of
the District of Columbia may disclose the name and contact information of its insurers
to any third party which presents a claim against The Government of the District of
Columbia for any damages or claims resulting from or arising out of work performed
by the Contractor, its agents, employees, servants or subcontractors in the performance
of this contract.
L. CARRIER RATINGS. All Contractor’s and its subcontractors’ insurance required in
connection with this contract shall be written by insurance companies with an A.M.
Best Insurance Guide rating of at least A- VII or better (or the equivalent by any other
rating agency) and licensed in the District of Columbia.
M. WARRANTIES. When applicable, the Contractor should be named as an additional
insured on the applicable manufacturer’s/distributer’s Commercial General Liability
policy using Insurance Services Office, Inc. (“ISO”) form CG 20 15 04 13 (or another
occurrence-based form with coverage at least as broad). CO should collect, review for
accuracy, and maintain all warranties for goods and services.
Article 12- BONDS
Section 12.1 Performance Bond and Payment Bond.
The Design -Builder shall, before commencing the Construction Phase, provide to the
Department a payment bond and performance bond, each with a penal sum equal to the full
value of the Agreement, NTE or the GMP. Such bond shall remain in full force and effect until
Final Completion is achieved and the Department shall be able to draw upon such bond
regardless of the amount paid by the Department to the Design-Builder, even if such amount
exceeds the penal value of such bond. Unless otherwise directed by the Department, the
Design-Builder shall require all Subcontractor whose Subcontract prices exceed One Hundred
Thousand Dollars ($100,000) to provide payment and performance bonds, with a penal sum
equal to one hundred percent (100%) of the subcontract price. All bonds must be in a form
acceptable to the Department, its lenders or bond trustee, and issued by a surety authorized to
do business in the District of Columbia and bonding company listed on the United States
Department of Treasury’s Listing of Approved Sureties. All subcontractor’ bonds must include
a dual obligee rider, naming the Design- Builder and the Department as dual obligees. If the
GMPis increased pursuant to the terms of the Agreement, the Department may require that the
amount of the bonds be increased in the amount of one hundred percent (100%) of the increase,
and the Design-Builder shall promptly comply. The Design-Builder shall furnish a copy of its
bonds to any potential beneficiary of the bonds or permit that person or company to make a
copy. If the bonds provided become unacceptable to the Department, the Design-Builder shall
promptly provide substitute security acceptable to the Department. If the Design-Builder
intends to exercise its rights as dual obligee under any trade subcontractor’s bond, it shall first
give the Department twenty (20) days written notice, so that the Department may lodge any
objection it may reasonably have to the proposed action.
Article–13 - ECONOMIC INCLUSION REQUIREMENTS
Section 13.1 LSDBE Utilization.
If the Design -Bui lder subcontracts any work, at least (35%) of the dollar volume of the
Agreement shall be subcontracted with small business enterprises (“SBE”). If there are
insufficient qualified SBEs then the subcontracting may be satisfied by subcontracting (35%)
of the dollar volume to any qualified certified business enterprises (“CBE”). For subcontracted
work, pass through entities will not count toward this goal. In order to count toward the
subcontracting requirement, the SBE must perform at least (35%) of the work that is being
counted toward the goal with its own forces. The Local, Small, and Disadvantaged Business
Enterprises (“LSDBE”) certification shall be, in each case, as of the effective date of the
applicable subcontract. Supply agreements with material suppliers shall be counted toward
meeting this goal. The Design- Builder has developed a Subcontracting Plan that is attached
hereto as Exhibit D . The Design- Builder shall comply with the terms of the SBE
Subcontracting Plan in making purchases and administering its subcontracts and supply
agreements.
Section 13.2 Mandatory Subcontracting Requirements
Se
ction 13.2.1 Unless the Director of the Department of Small and Local Business
Development (DSLBD) has approved a waiver in writing, in accordance with D.C. Official
Code § 2-218.51, for all contracts in excess of $250,000, at least 35% of the dollar volume of
the contract shall be subcontracted to qualified SBEs.
Section 13.2.2 If there are insufficient SBEs to completely fulfill the requirement of Section
13.2.1, then the subcontracting may be satisfied by subcontracting 35% of the dollar volume
to any qualified certified business enterprises (CBEs); provided, however, that all reasonable
efforts shall be made to ensure that SBEs are significant participants in the overall
subcontracting work.
Section 13.2.3 A prime contractor that is certified by DSLBD as a small, local or
disa
dvantaged business enterprise shall not be required to comply with the provisions of
Sections 13.2.1 and Section 13.2.2.
Section 13.2.4 Except as provided in Sections 13.2.1 and Section 13.2.2, a prime contractor
that is a CBE and has been granted a proposal preference pursuant to D.C. Official Code §
2-218.43, or is selected through a set -aside program, shall perform at least 35% of the
contracting effort with its own organization and resources and, if it subcontracts, 35% of the
subcontracting effort shall be with CBEs. A CBE prime contractor that performs less than
35% of the contracting effort shall be subject to enforcement actions under D.C. Official
Code § 2-218.63.
Section 13.2.5 A prime contractor that is a certified joint venture and has been granted a
propos
al preference pursuant to D.C. Official Code § 2-218.43, or is selected through a set-
aside program, shall perform at least 50% of the contracting effort with its own organization
and resources and, if it subcontracts, 35% of the subcontracting effort shall be with CBEs.
A certified joint venture prime contractor that performs less than 50% of the contracting
effort shall be subject to enforcement actions under D.C. Official Code § 2-218.63.
Section 13.2.6 Each CBE utilized to meet these subcontracting requirements shall perform at
least 35% of its contracting effort with its own organization and resources.
Section 13.3 Subcontracting Plan (Exhibit D)
If the Design -Builder is required by law to subcontract under this Agreement, then the
subcontracting plan submitted with its Proposal, may only be amended with the prior written
approval of the Contracting Officer and Director of DSLBD, as previously stated herein; and,
any reduction in the dollar volume of the subcontracted portion resulting from an amendment
of the Subcontracting Plan shall inure to the benefit of the District. The Subcontracting Plan
shall include the following:
(1) The name and address of each subcontractor;
(2) A current certification number of the small or certified business enterprise;
(3) The scope of work to be performed by each subcontractor; and
(4) The price that the prime contractor will pay each subcontractor.
Section 13.4 Copies of Subcontracts
Within twenty-one (21) days of the date of award, the Contractor shall provide fully executed
copies of all subcontracts identified in the subcontracting plan to the Contracting Officer (CO),
District of Columbia Auditor and the Director of DSLBD.
Section 13.5 Subcontracting Plan Compliance Reporting
Section 13.5.1 If the Contractor has a subcontracting plan required by law for this
contract, the Contractor shall submit a quarterly report to the Contracting Officer, District
of Columbia Auditor, and the Director of DSLBD. The quarterly report shall include the
following information for each subcontract identified in the subcontracting plan:
(A) The price that the prime contractor will pay each subcontractor under the
subcontract;
(B) A description of the goods procured or the services subcontracted for;
(C) The amount paid by the prime contractor under the subcontract; and
(D) A copy of the fully executed subcontract, if it was not provided with an earlier
quarterly report.
Section 13.5.2 If the fully executed subcontract is not provided with the quarterly report,
the prime contractor will not receive credit toward its subcontracting requirements for that
subcontract.
Section 13.6 Annual Meetings
Upon at least 30- days written notice provided by DSLBD, the Contractor shall meet
annually with the CO, CA, District of Columbia Auditor and the Director of DSLBD to
provide an update on its subcontracting plan.
Section 13.7 DSLBD Notices
The Contractor shall provide written notice to the DSLBD and the District of Columbia
Auditor upon commencement of the contract and when the contract is completed.
Section 13.8 Enforcement and Penalties for Breach of Subcontracting Plan
Section 13.8.1 A contractor shall be deemed to have breached a subcontracting plan required
by law if the contractor (i) fails to submit subcontracting plan monitoring or compliance
reports or other required subcontracting information in a reasonably timely manner; (ii)
submits a monitoring or compliance report or other required subcontracting information
containing a materially false statement; or (iii) fails to meet its subcontracting requirements.
Section 13.8.2 A contractor that is found to have breached its subcontracting plan for
utilization of CBEs in the performance of a contract shall be subject to the imposition of
penalties, including monetary fines in accordance with D.C. Official Code § 2-218.63.
Section 13.8.3 If the CO determines the Contractor’s failure to be a material breach of the
contract, the CO shall have cause to terminate the contract under the default provisions in
Article 16 of the Contract.
Section 13.8.4 Neither the Design-Builder nor a subcontractor may remove a subcontractor
or tier -subcontractor if such subcontractor or tier -subcontractor is certified as an LSDBE
company unless the Department approves of such removal, in writing. The Department may
condition its approval upon the Design-Builder developing a plan that is, in the Department’s
sole and absolute judgment, adequate to maintain the level of LSDBE participation in the
Project.
Section 13.9 Equal Employment Opportunity and Hiring of District Residents
Section 13.9.1 For contracts for services in the amount of $300,000 or more, the Design-
Builder shall comply with the First Source Employment Agreement Act of 1984, as amended,
D.C. Official Code § 2-219.01 et seq. (“First Source Act”).
Section 13.9.2 T he Design -Builder shall enter into and maintain during the term of the
Contract, a First Source Employment Agreement (Employment Agreement) Exhibit V with
the District of Columbia Department of Employment Service’s (DOES), in which the Design-
Builder shall agree that: (a) The first source for finding employees to fill all jobs created in
order to perform the Contract shall be the First Source Register; and (b) The first source for
finding employees to fill any vacancy occurring in all jobs covered by the Employment
Agreement shall be the First Source Register.
Section 13.9.3 If applicable, the Design-Builder shall comply with subchapter X of Chapter II
of T
itle 2, and all successor acts thereto, including by not limited to the Workforce Intermediary
Establishment and Reform of First Source Amendment Act of 2011, and the rules and
regulations promulgated thereunder, including, but not limited to the following requirements:
a) At least twenty percent (20%) of journey worker hours by trade shall be performed by
District residents;
b) At least sixty percent (60%) of apprentice hours by trade shall be performed by District
residents;
c) At least fifty-one percent (51%) of the skilled laborer hours by trade shall be performed
by District residents; and
d) At least seventy percent (70%) of common laborer hours shall be performed by District
residents.
Section 13.9.4 The Design-Builder shall not begin the performance of the Contract until its
Employment Agreement has been accepted by DOES. Once approved, the Employment
Agreement shall not be amended except with the approval of DOES.
Section 13.9.5 The Design-Builder agrees that at least 51% of the new employees hired to
perform the Contract shall be District residents. The Design -Builder shall ensure that at least
fifty-one percent (51%) of the Design- Builder and every sub-consultants and subcontractor ’s
employees hired after the effective date of the Agreement, or after such subconsultant or
subcontractor enters into a contract with the Design -Builder, to work on the Project shall be
residents of the District of Columbia. This percentage shall be applied in the aggregate, and not
trade by trade.
Section 13.9.6 The Contractor’s hiring and reporting requirements under the First Source Act
and any rules promulgated thereunder shall continue for the term of the Contract.
Section 13.9.7 The CO may impose penalties, including monetary fines of 5% of the total
amount of the direct and indirect labor costs of the Contract, for a willful breach of the
Employment Agreement, failure to submit the required hiring compliance reports, or deliberate
submission of falsified data.
Section 13.9.8 If the Design- Builder does not receive a good faith waiver, the CO may also
impose an additional penalty equal to 1/8 of 1% of the total amount of the direct and indirect
labor costs of the Contract for each percentage by which the Design- Builder fails to meet its
hiring requirements.
Section 13.9.9 Any contractor which violates, more than once within a 10-year timeframe, the
hiring or reporting requirements of the First Source Act shall be referred for debarment for not
more than five (5) years.
Section 13.9.10 The Design-Builder may appeal any decision of the CO pursuant to this clause
to the DC Contract Appeals Board located at 441 4th Street, NW, Suite 350N, Washington, DC
20001.
Section 13.9.11 The provisions of the First Source Act do not apply to nonprofit organizations
which employ 50 employees or less.
Section 13.9.12 Construction projects or contracts covered by this Section of the Contract shall
be subject to the hiring and reporting requirements set forth in this section until construction is
completed and a final certificate of occupancy has been issued.
Section 13.10 Economic Inclusion Reporting Requirements
Section 13.10.1 Upon execution of the Agreement, the Design- Builder and all its member
firms, if any, and each of its Subcontractor shall submit to the Department a list of current
employees and apprentices that will be assigned to the Agreement, the date they were hired
and whether or not they live in the District of Columbia.
Section 13.10.2 The Design-Builder and its constituent entities shall comply with subchapter
X of Chapter II Title 2, and subchapter II of Chapter 11 of Title 1 of the D.C. Code, and all
successor acts thereto and the rules and regulations promulgated thereunder. The Desi gn-
Builder and all member firms and Subcontractor shall execute a First Source Agreement with
the District of Columbia Department of Employment Services (“DOES”) prior to beginning
work at the Project site.
Section 13.10.3 The Design-Builder shall maintain detailed records relating to the general
hiring of District of Columbia and community residents.
Section 13.10.4 The Design-Builder shall be responsible for: (i) including the provisions of
Section 9.3 in all subcontracts; (ii) collecting the information required in Section 9.3 from its
Subcontractor; and (iii) providing the information collected from its Subcontractor in the
reports required to be submitted by the Design-Builder pursuant to Section 9.3.
Section 13.10.5. Service Contract Act Provision. The Design-Builder agrees that the work
performed under this Agreement shall be subject to the Service Contract Act Wage
Determination in effect on the date this agreement is executed. Service Contract Wage
Schedules are available at wdol.gov, Exhibit E.
Section 13.10.6 Living Wage Act. In addition to the requirements set forth in the First Source
Employment Agreement, the Design- Builder shall comply with all applicable provisions of
the Living Wage Act of 2006, Exhibit Q, as amended (codified at D.C. Official Code §§ 2-
220.01 et seq.) and its implementing regulations.
Section 13.10.7 Apprenticeship Act. The D.C. Apprenticeship Act of D.C. Law 2-156,
(as amended, the Act) may apply to these Projects. As applicable, the Design- Builder firms
and their subcontractor selected to perform work on the Projects on a craft -by-craft basis may
be required to comply with the Act. If applicable, all terms and conditions of the D.C.
Apprenticeship Council Rules and Regulations shall be implemented, and the selected Design-
Builder firms shall be liable for any subcontractor non- compliance. Thirty five percent (35%)
of all apprentice hours worked on the Project shall be worked by District residents.
Section 13.11 WAY TO WORK AMENDMENT ACT OF 2006
Section 13.11.1. E xcept as described in Section 13.11.8 below, the Design- Builder shall
comply with Title I of the Way to Work Amendment Act of 2006, effective June 8, 2006 (D.C.
Law 16-118, D.C. Official Code §2-220.01 et seq.) (“Living Wage Act of 2006”), for contracts
for services in the amount of $100,000 or more in a 12-month period.
Section 13.11.2 The Design-Builder shall pay its employees and subcontractor who perform
services under the Contract no less than the current living wage.
Section 13.11.3 The Design-Builder shall include in any subcontract for $15,000 or more a
provision requiring the subcontractor to pay its employees who perform services under the
Contract no less than the current living wage rate.
Section 13.11.4 The DOES may adjust the living wage annually and Design-Builder will find
the current living wage rate on its website at www.does.dc.gov.
Section 13.11.5 The Design-Builder shall provide a copy of the Fact Sheet attached within
Exhibit Q to each employee and subcontractor who performs services under the Contract. The
Design-Builder shall also post the Notice attached within Exhibit Q in a conspicuous place in
its place of business. The Design-Builder shall include in any subcontract for $15,000 or more
a provision requiring the subcontractor to post the Notice in a conspicuous place in its place of
business.
Section 13.11.6 T he Design-Builder shall maintain its payroll records under the Contract in
the regular course of business for a period of at least three (3) years from the payroll date, and
shall include this requirement in its subcontracts for $15,000 or more under the Contract.
Section 13.11.7 The payment of wages required under the Living Wage Act of 2006 shall be
consistent with and subject to the provisions of D.C. Official Code §32-1301 et seq.
Section 13.11.8 The requirements of the Living Wage Act of 2006 do not apply to:
(1) Contracts or other agreements that are subject to higher wage level determinations
required by federal law;
(2) Existing and future collective bargaining agreements, provided, that the future
collective bargaining agreement results in the employee being paid no less than the
established living wage;
(3) Contracts for electricity, telephone, water, sewer or other services provided by a
regulated utility;
(4) Contracts for services needed immediately to prevent or respond to a disaster or
imminent threat to public health or safety declared by the Mayor;
(5) Contracts or other agreements that provide trainees with additional services including,
but not limited to, case management and job readiness services; provided that the
trainees do not replace employees subject to the Living Wage Act of 2006;
(6) An employee under 22 years of age employed during a school vacation period, or
enrolled as a full-time student, as defined by the respective institution, who is in high
school or at an accredited institution of higher education and who works less than 25
hours per week; provided that he or she does not replace employees subject to the
Living Wage Act of 2006;
(7) Tenants or retail establishments that occupy property constructed or improved by
receipt of government assistance from the District of Columbia; provided, that the
tenant or retail establishment did not receive direct government assistance from the
District;
(8) Employees of nonprofit organizations that employ not more than 50 individuals and
qualify for tax exemption pursuant to Section 501(c)(3) of the Internal Revenue Code
of 1954, approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(3);
(9) Medicaid provider agreements for direct care services to Medicaid recipients,
provided, that the direct care service is not provided through a home care agency, a
community residence facility, or a group home for mentally retarded persons as those
terms are defined in Section 2 of the Health-Care and Community Residence Facility,
Hospice, and Home Care Licensure Act of 1983, effective February 24, 1984 (D.C.
Law 5-48; D.C. Official Code § 44-501); and
(10) Contracts or other agreements between managed care organizations and the Health
Care Safety Net Administration or the Medicaid Assistance Administration to provide
health services.
Section 13.11.9 The Mayor may exempt a contractor from the requirements of the Living Wage
Act of 2006, subject to the approval of the Council, in accordance with the provisions of Section
109 of the Living Wage Act of 2006.
Section 13.12 SPECIAL PROVISIONS RELATED TO THE COVID-19 EMERGENCY
Section 13.12.1 The Contractor is required to comply with Mayor’s Order 2021-099, COVID-
19 Vaccination Certification Requirement for District Government Employees, Contractors,
Interns, and Grantees, dated August 10, 2021, and all substantially similar vaccine
requirements, including any modifications to this Order, unless and until they are rescinded or
superseded. At the request of the District government, Contractors may be asked to provide
certification of compliance with this requirement and/or documents and records in support of
this certification.
Article–14 - LIQUIDATED DAMAGES AND DISINCENTIVE FEES
Section 14.1 Delay in Submission of Deliverables.
Subject to the terms set forth in Sections 3.1.2 and Section 4.1, if the Design-Builder fails to
provide any of the deliverables set forth in Exhibit C , the Design- Builder shall pay to the
Department a disincentive fee in the amount set forth in the Project Information section of this
Agreement for each such deliverable that is not timely submitted.
Section 14.2 Delay in Substantial Completion.
If
the Design-Builder fails to achieve Substantial Completion of the Project by the Substantial
Completion Date, the Parties acknowledge and agree that the actual damage to the Department
for the delay will be impossible to determine, and in lieu thereof, the Design-Builder shall pay
to the Department, as fixed, agreed and liquidated delay damages in the amount set forth in the
Project Information section of this Agreement per day for each calendar day of delay for failure
to meet the applicable Substantial Completion Date.
The Design-Builder and the Department agree that the liquidated damages set forth in this
Article do not constitute, and shall not be deemed, a penalty but represent a reasonable
approximation of the damages to the Department associated with a delay in the Project. These
damages shall not apply if the delay is the result of force majeure and the Design-Builder
otherwise complies with the provisions set forth in the Standard Contract Provisions
(Construction Contracts and Architectural/Engineering Services Contracts).
Section 14.3 Early Completion. In the event the Design -Builder achieves Substantial
Completion of the Project prior to the Substantial Completion Date, the Design -Builder shall
maintain the completed Project, at its own expense, until such time that the Department agrees
to occupy and use the Project for its intended use.
Article–15 - MISCELLANEOUS PROVISIONS
Section 15.1 Ownership and Use of Project Documents. The Drawings, Specifications, and
other Project Documents prepared by the Design -Builder’s Architect and copies thereof
furnished to the Design-Builder, are for use solely with respect to this Project. They are not to
be used by the Design -Builder, Subcontractor , Sub-subcontractor, or suppliers on other
projects, or for additions to this Project outside the scope of the Work, without the specific
written consent of the Department, and the Design-Builder’s Architect. The referenced
Drawing, Specifications , and other Project Documents shall become the property of the
Department. The District will be the s ole owner of all project drawings, specifications, and
other Project Documents and the Design-Builder shall provide the District with a complete set
of “as-built” within sixty (60) days of final completion.
Section 15.2 Assignment.
The Department and Design- Builder respectively bind themselves, their partners, members,
joint venturers, constituent entities, successors, assigns and legal representatives to the other
party hereto and to partners, members, joint venturers, constituent entities, successors, assigns,
and legal representatives of such other party in respect to covenants, agreements , and
obligations contained in the Agreement. Neither party to the Agreement shall assign the
Agreement or its rights and obligations under the Agreement, without the written consent of
the other party. If either party attempts to make such an assignment without such consent, that
party shall nevertheless remain legally responsible for all obligations under the Agreement.
Section 15.3 Buy American Act Provision.
The Design-Builder shall comply with the provisions of the Buy American Act (41 U.S.C. §
10a-10d), including, but not limited to, the purchase of steel.
Section 15.3.1 In accordance with the Buy American Act (41 U.S.C. § l0a-l0d), and Executive
Order 10582. December 17, 1954 (3 CFR, 1954-58 Comp., p. 230), as amended by Executive
Order 11051, September 27, 1962 (3 CFR, l059—63 Comp., p. 635), the Design-Builder agrees
that only domestic construction material will be used by the Design-Builder, subcontractor ,
material men and suppliers in the performance of the Agreement, except for non- domestic
material listed in the Agreement.
“Components” as used in this section, means those articles, materials and supplies incorporated
directly into the end products.
“Domestic end product”, as used in this section, means, (1) an unmanufactured end product
mined or produced in the United States, or (2) an end product manufactured in the United
States, if the cost of its components mined, produced, or manufactured in the United States,
exceeds 50 percent of the cost of all its components.
Components of foreign origin of the same class or kind as the products shall be treated as
domestic. Scrap generated, collected, and prepared for processing in the Unites States is
considered domestic.
“End Products”, as used in this section , means those articles, materials, and supplies to be
acquired for public use under this Contract.
The Design-Builder shall deliver only domestic end products, except those:
1. For use outside the United States;
2. That the District determines are not mined, produced, or manufactured in the Unite d
States in sufficient and reasonably available commercial quantities of a satisfactory
quality;
3. For which the District determines that domestic preference would be inconsistent with
the public interest; or
4. For which the District determines the cost to be unreasonable.
Section 15.3.2 Domestic Construction Material. “Construction material” means any article,
material, or supply brought to the construction site for incorporation in the building or work.
An unmanufactured construction material is a “domestic construction material” if it has been
mined or produced in the United States. A manufactured construction material is a “domestic
construction material” if it has been manufactured in the United States and if the cost of its
components which have been mined, produced, or manufactured in the United States exceeds
50 percent of the cost of all its components. “Component” means any article, material, or supply
directly incorporated in construction material.
Section 15.3.3 Domestic Component. A component shall be considered to have been “mined,
produced, or manufactured in the United States” regardless of its source, in fact, if the article,
material, or supply in which it is incorporated was manufactured in the United States and the
component is of a class or kind determined by the Government to be not mined, produced or
manufactured in the United States in sufficient and reasonably available commercial quantities
and of satisfactory quality.
Section 15.3.4 Foreign Material. When steel materials are used in a project a minimal use of
foreign steel is permitted. The cost of such materials cannot exceed one- tenth of one percent
of the total project cost or $2,500,000, whichever is greater.
Section 15.4 Davis-Bacon Act Provision.
The Design-Bui lder agrees that the construction work performed under this Agreement shall
be subject to the Davis-Bacon Act (40 U.S.C. §§ 3142-3148) Exhibit G1 and Title 29 Code of
Federal Regulations (CFR) part 5.5 Exhibit G2. The wage rates applicable to this Project are
attached as Exhibits G1 and G2. The Design- Builder further agrees that it and all of its
subcontractor shall comply with the regulations implementing the Davis -Bacon Act and such
regulations are hereby incorporated by reference. At such time as the Design -Builder is
preparing its GMP, the Design-Builder shall include the current Davis-Bacon wage rates in its
GMP.
Section 15.5 The Quick Payment Clause
Section 15.5.1 Interest Penalties to Contractors
Section 15.5.1.1 The District will pay interest penalties on amounts due to the
Design-Builder under the Quick Payment Act, D.C. Official Code §2 -221.01 et seq.,
as amended, for the period beginning on the day after the required payment date and
ending on the date on which payment of the amount is made. Interest shall be calculated
at the rate of 1.5% per month. No interest penalty shall be paid if payment for the
completed delivery of the item of property or service is made on or before the required
payment date. The required payment date shall be:
a. The date on which payment is due under the terms of the Contract;
b. Not later than 7 calendar days, excluding legal holidays, after the date of
delivery of meat or meat food products;
c. Not later than 10 calendar days, excluding legal holidays, after the date of
delivery of a perishable agricultural commodity; or
d. 30 calendar days, excluding legal holidays, after receipt of a proper invoice for
the amount of the payment due, if a specific date on which payment is due is
not established by contract;
Section 15.5.1.2 Any amount of an interest penalty which remains unpaid at the end of
any 30-day period shall be added to the principal amount of the debt and thereafter
interest penalties shall accrue on the added amount.
Section 15.5.1.3 No interest penalty shall be due to the Design- Builder if payment for
the completed delivery of goods or services is made on or after:
a. 3rd day after the required payment date for meat or a meat food product;
b. 5th day after the required payment date for an agricultural commodity; or
c. 15th day after any other required payment date in the case of any other item.
Section 15.5.2 Payments to Subcontractor
Section 15.5.2.1 The Design-Builder must take one of the following actions within
seven (7) days of receipt of any amount paid to the Design- Builder by the District for
work performed by any subcontractor under this contract:
a. Pay the subcontractor for the proportionate share of the total payment received
from the District that is attributable to the subcontractor for work performed
under the Contract; or
b. Notify the Contracting Officer and the subcontractor, in writing, of the Design-
Builder’s intention to withhold all or part of the subcontractor ’s payment and
state the reason for the nonpayment.
Section 15.5.2.2 The Design-Builder must pay any subcontractor or supplier interest
penalties on amounts due to the subcontractor or supplier beginning on the day after the
payment is due and ending on the date on which the payment is made. Interest shall be
calculated at the rate of 1.5% per month. No interest penalty shall be paid on the
following if payment for the completed delivery of the item of property or service is
made on or before:
a. The 3rd day after the required payment date for meat or a meat product;
b. The 5th day after the required payment date for an agricultural commodity; or
c. The 15th day after the required payment date for any other item.
Section 15.5.2.3 Any amount of an interest penalty that remains unpaid by the Design-
Builder at the end of any 30- day period shall be added to the principal amount of the
debt to the subcontractor and thereafter interest penalties shall accrue on the added
amount.
Section 15.5.2.4 A dispute between the Design -Builder and subcontractor relating to
the amounts or entitlement of a subcontractor to a payment or a late payment interest
penalty under the Quick Payment Act does not constitute a dispute to which the District
of Columbia is a party. The District may not be interpleaded in any judicial or
administrative proceeding involving such a dispute.
Section 15.5.3 Subcontractor Quick Payment Clause Flow-Down Requirements
Section 15.5.3.1 The Design -Builder shall include in each subcontract under this
Contract a provision requiring the subcontractor to include in its contract with any
lower-tier subcontractor or supplier the payment and interest clauses required under
paragraphs (1) and (2) of D.C. Official Code §2-221.02(d).
Section 15.5.4 Requirements for Change Order Payments
Section 15.5.4.1 The Department and the Design-Builder are prohibited from requiring
the a Prime Contractor or a subcontractor to undertake any work that is determined to
be beyond the original scope of the Prime Contra ctor's or a subcontractor's contract or
subcontract, including work under a District -issued change order, when the additional
work increases the contract price beyond the not -to-exceed price or negotiated
maximum price of the underlying contract, unless the Contracting Officer:
a. Agrees with the Prime Contractor and, if applicable, the subcontractor on a price
for the additional work;
b. Obtains a certification from the Chief Financial Officer that there are sufficient
funds to compensate the Prime Contractor and, if applicable, the subcontractor
for the additional work;
c. Has made a written, binding commitment with the Prime Contractor to pay for
the additional work within 30 days after the Prime Contractor submits a proper
invoice for the additional work to the CO; and
d. Gives written notice of the funding certification from the Chief Financial
Officer to the Prime Contractor.
Section 15.5.4.2 The Design-Builder is required to include in its subcontracts a clause
that requires the Prime Contractor to:
a. Within 5 business days of receipt of the notice required under subparagraph
(A)(iv) of this paragraph, provide the subcontractor with notice of the approved
amount to be paid to the subcontractor based on the portion of the additional
Work to be completed by the subcontractor;
b. Pay the subcontractor any undisputed amount to which the subcontractor is
entitled for any additional work within 10 days of receipt of payment for the
additional Work from the District; and
c. If the Prime Contractor withholds payment from a subcontractor , notify the
subcontractor in writing and state the reason why payment is being withheld
and provide a copy of the notice to the CO.
Section 15.5.4.3 The Department, Design -Builder, Design-Builder Architects, or a
subcontractor are prohibited from declaring another party to the contract to be in default
or assessing, claiming, or pursuing damages for delays in the completion of the
construction due to the inability of the parties to agree on a price for the additional
work.
Section 15.5.4.4 Authorized Changes By The Contracting Officer
a. The CO is the only person authorized to approve changes in any of the
requirements of this Contract.
b. The Design-Builder shall not comply with any order, directive , or request that
changes or modifies the requirements of this Contract unless issued in writing
and signed by the CO.
c. In the event the Design-Builder effects any change at the instruction or request
of any person other than the CO, the change will be considered to have been
made without authority and no adjustment will be made in the Contract price to
cover any cost increase incurred as a result thereof.
Section 15.6 Contract Work Hours and Safety Standards Act Provision. The Design-
Builder agrees that the applicable work performed under this Agreement shall be subject to the
Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333).
Section 15.7 False Claims Act. Design-Builder shall be governed by all laws and
regulations prohibiting false or fraudulent statements and claims made to the DC government,
including the prescriptions set forth in District of Columbia Code Official Code §22-2514 and
§§2-381.01 et seq. In the event that it is discovered that the Design -Builder has made a false,
fraudulent, or unsupported statement or claim to the Department, the Department may
terminate this Agreement without liability.
Section 15.8 Interpretation of Contract and Order of Precedence. All of the Project
documents comprising the Agreement should be read as complementary so that what is called
for by one is called for by all. Ambiguities shall be construed in favor of a broader scope of
Work for the Design-Builder, as the intent of the Agreement is, with specifically identified
exceptions, to require the Design- Builder to assume entire responsibility for the construction
of the Project. If there is any inconsistency among the Project documents comprising the
Agreement, the order of precedence among them is as follows, with the first listed Project
document having the highest priority:
1. This Agreement and its Modifications, Change Orders, Change Directives and any
Exhibits thereto;
2. The Department’s Standard Contract Provisions (Construction Contracts and
Architectural/Engineering Services Contracts), as amended, and any missing term in
this Agreement shall be addressed in accordance with the Standard Contract
Provisions; and
3. The Construction documents released or approved by the Department.
Section 15.9 Independent Contractor. The Design -Builder and the Design- Builder’s
employees: (1) shall perform the services specified herein as independent contractors, not as
employees or agent of the District, or joint venture or partner with the District; (2) shall be
responsible for their own management and administration of the work required and bear sole
responsibility for complying with any and all technical, schedule, financial requirements or
constraints attendant to the performance of this Agreement; (3) shall be free from supervision
or control by any government employee with respect to the manner or method of performance
of the service specified; but (4) shall, pursuant to the government’s right and obligation to
inspect, accept or reject work, comply with such general direction of the CO, or the duly
authorized representative of the CO as is necessary to ensure accomplishment of the Agreement
objectives. The Design-Builder shall have exclusive authority to manage, direct, and control
the work, and shall be responsible for all means, methods, techniques, sequences, and
procedures, as well as for Project safety.
Section 15.10 No Third -Party Beneficiary Rights. Nothing in this Agreement shall be
construed as creating third-party beneficiary rights in any person or entity, except as otherwise
expressly provided in this Agreement.
Section 15.11 Media Releases. Neither the Design -Builder, its employees, agents or
Subcontractor or material suppliers shall make any press release or similar media release
related to the Project unless such press release have been discussed with the Department prior
to its issuance.
Section 15.12 Construction. This Agreement shall be construed fairly as to all Parties and
not in favor of or against any party, regardless of which party prepared the Agreement.
Section 15.13 Notices. All notices or communications required or permitted under the
Agreement shall be in writing and shall be hand delivered or sent by telecopier or by recognized
overnight carrier to the intended recipient at the address stated below, or to such other address
as the recipient may have designated in writing. Any such notice or communication shall be
deemed delivered as follows: if hand delivered, on the day so delivered, if sent by telecopier,
on confirmation of successful transmission, and if sent by recognized overnight carrier, the
next business day.
If to the Department: If to the Design-Builder:
George Lewis, Associate Director Frank Chiaramonte
and Chief Procurement Officer President
Department of General Services Chiaramonte Construction Company
3924 Minnesota Avenue, NE, 5th Floor 2260 Minnesota Avenue, SE
Washington, DC 20019 Washington, DC 20020
This section shall be read as imposing minimum requirements for distribution of required
contractual notices, and not as displacing distribution requirements with respect to design
documents, construction submittals, periodic reports, and other Project documents.
Section 15.14 Limitations. The Design -Builder agrees that any statute of limitations
applicable to any claim or suit by the Department arising from this Agreement or its breach
shall be controlled by applicable District of Columbia law.
Section 15.15 Survival. All agreements warranties and representations of the Design-Builder
contained in the Agreement or in any certificate or Project document furnished pursuant to the
Agreement shall survive termination or expiration of the Agreement.
Section 15.16 No Waiver. If the Department waives any power, right, or remedy arising from
the Agreement or any applicable law, the waiver shall not be deemed to be a waiver of the
power, right, or remedy on the later recurrence of any similar events. No act, delay, or course
of conduct by the Department shall be deemed to constitute the Department's waiver, which
may be effected only by an express written waiver signed by the Department.
Section 15.17 Remedies Cumulative. Unless specifically provided to the contrary in the
Agreement, all remedies set forth in the Agreement are cumulative and not exclusive of any
other remedy the Department may have, including, without limitation, at law or in equity. The
Department's rights and remedies will be exercised at its sole discretion, and shall not be
regarded as conferring any obligation on the Department to exercise those rights or remedies
for the benefit of the Design-Builder or any other person or entity.
Section 15.18 Headings/Captions. The headings or captions used in this Agreement or its
table of contents are for convenience only and shall not be used in interpreting the Agreement.
Section 15.19 Entire Agreement; Modification. The Agreement supersedes all
contemporaneous or prior negotiations, representations, course of dealing, or agreements,
either written or oral. No modifications to the Agreement shall be effective against the
Department unless made in writing and signed by both the Department and the Design-Builder,
unless otherwise expressly provided to the contrary in the Agreement. Notwithstanding the
foregoing, nothing herein shall be construed to limit the Department’s ability to unilaterally
modify the Agreement.
Section 15.20 Severability. In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this
Agreement, and in lieu of each such invalid, illegal or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as similar in terms to such invalid,
illegal or unenforceable provision as may be possible and be valid, legal and enforceable; each
part of this Agreement is intended to be severable.
Section 15.21 Anti-Deficiency Acts. The obligations and responsibilities of the Department
under the terms of the Agreement, or any subsequent agreement entered into pursuant to this
Agreement or referenced herein (to which the Department is a party), are and shall remain
subject to the provisions of: (i) the federal Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1342,
1349-1351, 1511-1519 (2004) (the “ Federal ADA”), and D.C. Official Code §§ 1-206.03(e)
and 47-105 (2001); (ii) the District of Columbia Anti -Deficiency Act, D.C. Official Code §§
47-355.01 – 355.08 (2004 Supp.)(the “ D.C. ADA” and (i) and (ii) collectively, as amended
from time to time, the “ Anti- Deficiency Acts ”); and (iii) Section 446 of the District of
Columbia Home Rule Act, D.C. Official Code § 1- 204.46 (2001). Pursuant to the Anti -
Deficiency Acts, nothing in this Agreement shall create an obligation of the Department in
anticipation of an appropriation by Congress for such purpose, and the Department’s legal
liability for payments and other charges under this Agreement shall not arise or obtain in
advance of the lawful availability of appropriated funds for the applicable fiscal year as
approved by Congress. IN ACCORDANCE WITH § 446 OF THE HOME RULE ACT,
D.C. CODE § 1-204.46, NO DISTRICT OF COLUMBIA OFFICIAL IS AUTHORIZED
TO OBLIGATE OR EXPEND ANY AMOUNT UNDER THE AGREEMENT OR
CONTRACT DOCUMENTS UNLESS SUCH AMOUNT HAS BEEN APPROVED, IS
LAWFULLY AVAILABLE, AND APPROPRIATED BY ACT OF CONGRESS.
Section 15.21.1 The Department agrees to exercise all lawful authority available to it to satisfy
the financial obligations of the Department that may arise under this Agreement. During the
term of this Agreement, the Mayor of the District of Columbia or other appropriate official
shall, for each fiscal period, include in the budget application submitted to the Council of the
District of Columbia the amount necessary to fund the Department’s known potential financial
obligations under this Agreement for such fiscal period. In the event that a request for such
appropriations is excluded from the budget approved by the Council and submitted to Congress
by the President for the applicable fiscal year or if no appropriation is made by Congress to pay
any amounts due under this Agreement for any period after the fiscal year for which
appropriations have been made, and in the event appropriated funds for such purposes are not
otherwise lawfully available, the Department will not be liable to make any payment under this
Agreement upon the expiration of any then-existing appropriation, the Department shall
promptly notify the Contractor and this Agreement shall immediately terminate upon the
expiration of any then-existing appropriation.
Section 15.21.2 Notwithstanding the foregoing, no officer, employee, director, member or
other natural person or agent of the District or Department shall have any personal liability in
connection with the breach of the provisions of this section or in the event of non-payment by
the Department under this Agreement.
Section 15.21.3 This Agreement shall not constitute an indebtedness of the District and/or the
Department nor shall it constitute an obligation for which the Department is obligated to levy
or pledge any form of taxation or for which the District has levied or pledged any form of
taxation. No District of Columbia Official or employee is authorized to obligate or expend any
amount under this Agreement unless such amount has been appropriated by Act of Congress
and is lawfully available.
Section 15.22 Time. Time, if stated in a number of days, will be calendar days and thus
include Saturdays, Sundays, and holidays, unless otherwise stated herein.
Section 15.23 Americans With Disabilities Act of 1990 (“ADA”). During the performance
of this Contract, the Design-Builder and any of its Subcontractor shall comply with the ADA.
The ADA makes it unlawful to discriminate in employment against a qualified individual with
a disability. See 42 U.S.C. §12101 et seq.
Section 15.24 Contracts in Excess of One Million Dollars . Any contract in excess of
$l,000,000 shall not be binding or give rise to any claim or demand against the District until
approved by the Council of the District of Columbia and signed by the Contracting Officer.
Section 15.25 Gratuities Not to Benefit Provisions.
If it is found, after notice and hearing, by the Department that gratuities (in the form of
entertainment, gifts, payment, offers of employment, or otherwise) were offered or given by
the Design -Builder, or any agent or representative of the Design- Builder, to any official,
employee or agent of the Department or the District with a view toward securing the
Agreement or any other contract or securing favorable treatment with respect to the awarding
or amending, or the making of any determinations with respect to the performance of the
Agreement, the Department may, by written notice to the Design- Builder, terminate the right
of the Design-Builder to proceed under the Agreement and may pursue such other rights and
remedies provided by law and under the Agreement.
Section 15.26.1 In the event the Agreement is terminated as provided in Article 16 of this
Agreement, the Department shall be entitled:
a. to pursue the same remedies against the Design-Builder as it could pursue in the event
of a breach of the Agreement by the Design-Builder; and
b. as a penalty in addition to any other damages to which it may be entitled by law, to
exemplary damages in an amount (as determined by the Department) which shall be
not less than ten times the costs incurred by the Design-Builder in providing any such
gratuities.
Section 15.26.2 No member of, nor delegate to Congress, Mayor or City Council Member, nor
the Department nor employee of the District or employee of the Department shall be admitted
to any share or part of the Agreement or to any benefit that may arise therefrom, and all
agreements entered into by the CO of the Department in which he or she be personally
interested as well as all agreements made by the Department in which the Mayor or City
Council Member or employee of the District shall be personally interested shall be void and
no payments shall be made on any such contract s by the Department; but this provision shall
not be construed or extend to the agreement if the share of or benefit to the member of, or
delegate to Congress, Mayor or City Council Member, or employee of the District is de
minimis.
Section 15.27 Ethical Standards for the Department's Employees And Former
Employees. The Department expects the Design -Builder to observe the highest ethical
standards and to comply with all applicable laws , rules, and regulations governing ethical
conduct or conflicts of interest. Neither the Design-Builder, nor any person associated with the
Design-Builder, shall provide (or seek reimbursement for) any gift, gratuity, favor,
entertainment, loan, or other thing of value to any employee of the District or the Department
not in conformity with applicable law, rules or regulations. The Design- Builder shall not
engage the services of any person or persons in the employment of the Department or the
District for any work required, contemplated, or performed under the Agreement. The Design-
Builder may not assign to any former employee or District employee or agent who has joined
the Design-Builder’s firm any matter on which the former employee, while employed by the
Department, had material or substantial involveme nt in the matter. The Design -Builder may
request a waiver to permit the assignment of such matters to former personnel on a case -by-
case basis. The Design -Builder shall include in every subcontract a provision substantially
similar to this section so that such provisions shall be binding upon each Design- Builder or
vendor.
Section 15.28 Non-Discrimination in Employment Provisions.
Section 15.28.1 District of Columbia Human Rights Act
a. The Design -Builder shall not discriminate in any manner against any employee or
applicant for employment that would constitute a violation of the District of Columbia
Human Rights Act, effective December 13, 1977, as amended (D.C. Law 2-38; D.C.
Official Code § 2-1401.01 et seq.) (“Act”, as used in this clause). The Design-Builder
shall include a similar clause in all subcontracts, except subcontracts for standard
commercial supplies or raw materials. In addition, the Design-Builder agrees, and any
subcontractor shall agree, to post in conspicuous places, available to employees and
applicants for employment, a notice setting forth the provisions of this non-
discrimination clause as provided in Section 251 of the Act.
b. Pursuant to Mayor’s Order 85- 85, (6/10/85), Mayor’s Order 2002- 175 (10/23/02),
Mayor’s Order 2011-155 (9/9/11) and the rules of the Office of Human Rights, Chapter
11 of Title 4 of the D.C. Municipal Regulations, the following clauses apply to the
Contract:
1. The Design-Builder shall not discriminate against any employee or applicant
for employment because of race, color, religion, national origin, sex, age,
marital status, personal appearance, sexual orientation, family responsibilities,
matriculation, political affiliation, or physical handicap.
2. The Design-Builder agrees to take affirmative action to ensure that applicants
are employed, and that employees are treated during employment, without
regard to their race, color, religion, national origin, sex, age, marital status,
personal appearance, sexual orientation, family responsibilities, matriculation,
political affiliation, or physical handicap. The affirmative action shall include,
but not be limited to, the following:
i. Employment, upgrading, or transfer;
ii. Recruitment or recruitment advertising;
iii. Demotion, layoff, or termination;
iv. Rates of pay, or other forms of compensation; and
v. Selection for training and apprenticeship.
3. U nless otherwise permitted by law and directed by the Department, the Design-
Builder agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the Department setting
forth the provisions paragraphs 1 and 2 of Section 15.28.1(b) of this
Agreement, concerning non-discrimination and affirmative action.
4. The Design-Bu ilder shall, in all solicitations or advertisements for employees
placed by or on behalf of the Design-Builder, state that all qualified applicants
will receive consideration for employment pursuant to the non- discrimination
requirements set forth in Section 15.28.3.
5. The Design -Builder agrees to send to each labor union or representative of
workers with which it has a collective bargaining agreement, or other contract
or understanding, a notice to be provided by the Department, advising each
labor union or workers' representative of the Design -Builder’s commitments
under this Section 15.28.1, and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
6. The Design-Bui lder agrees to permit access by the Department to all books,
records and accounts pertaining to its employment practices for purposes of
investigation to ascertain compliance with this Section 15.28.1, and to require
under terms of any subcontractor agreement each subcontractor to permit access
of the Subcontractor, books, records, and accounts for such purposes.
7. The Design-Bui lder shall include in every subcontract this Section 15.28.1 so
that such provisions shall be binding upon each subcontractor or vendor.
8. The Design-B uilder shall take such action with respect to any subcontract as
the CO may direct as a means of enforcing these provisions, including sanctions
for noncompliance; provided, however, that in the event the Design-Builder
becomes involved in, or is threatened with, litigation with a subcontractor or
vendor as a result of such direction by the Department, the Design-Builder may
request the District to enter into such litigation to protect the interest of the
District.
Section 15.28.2 Pregnant Workers Fairness
a. The Design-Builder shall comply with the Protecting Pregnant Workers Fairness Act
of 2016, D.C. Official Code § 32-1231.01 et seq. (PPWF Act).
b. The Design-Builder shall not:
1. Refuse to make reasonable accommodations to the known limitations related to
pregnancy, childbirth, related medical conditions, or breastfeeding for an
employee, unless the Design-Builder can demonstrate that the accommodation
would impose an undue hardship;
2. Take an adverse action against an employee who requests or uses a reasonable
accommodation in regard to the employee's conditions or privileges of
employment, including failing to reinstate the employee when the need for
reasonable accommodations ceases to the employee's original job or to an
equivalent position with equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employee, or a job applicant, if the denial
is based on the need of the employer to make reasonable accommodations to
the known limitations related to pregnancy, childbirth, related medical
conditions, or breastfeeding;
4. Require an employee affected by pregnancy, childbirth, related medical
conditions, or breastfeeding to accept an accommodation that the employee
chooses not to accept if the employee does not have a known limitation related
to pregnancy, childbirth, related medical conditions, or breastfeeding or the
accommodation is not necessary for the employee to perform her duties;
5. Require an employee to take leave if a reasonable accommodation can be
provided; or
6. Take adverse action against an employee who has been absent from work as a
result of a pregnancy-related condition, including a pre-birth complication.
c. The Design-Builder shall post and maintain in a conspicuous place a notice of rights in
both English and Spanish and provide written notice of an employee's right to a needed
reasonable accommodation related to pregnancy, childbirth, related medical
conditions, or breastfeeding pursuant to the PPWF Act to:
1. New employees at the commencement of employment;
2. Existing employees; and
3. An employee who notifies the employer of her pregnancy, or other condition
covered by the PPWF Act, within 10 days of the notification.
d. The Design-Builder shall provide an accurate written translation of the notice of rights
to any non-English or non-Spanish speaking employee.
e. Violations of the PPWF Act shall be subject to civil penalties as described in the PPWF
Act.
15.28.3 UNEMPLOYED ANTI-DISCRIMINATION
a. The Design -Builder shall comply with the Unemployed Anti -Discrimination Act of
2012, D.C. Official Code § 32 -1361 et seq. (“Anti- Discrimination Act”).
b. The Design-Builder shall not:
1. Fail or refuse to consider for employment, or fail or refuse to hire, an individual
as an employee because of the individual's status as unemployed; or
2. Publish, in print, on the Internet, or in any other medium, an advertisement or
announcement for any vacancy in a job for employment that includes:
i. Any provision stating or indicating that an individual's status as unemployed
disqualifies the individual for the job; or
ii. Any provision stating or indicating that an employment agency will not
consider or hire an individual for employment based on that individual's status
as unemployed.
c. Violations of the Unemployed Anti-Discrimination Act shall be subject to civil penalties
as described in the Anti- Discrimination Act.
Section 15.29 ASSIGNMENT OF CONTRACT PAYMENTS
a. S ubject to this Section 15.29, in accordance with Title 27 DCMR Section 3250, the
Design-Builder may assign due or to become due as a result of the performance of this
Design-Builder to a bank, trust company, or other financing institution funds.
b. Any assignment shall cover all unpaid amounts payable under this Agreement and shall
not
be made to more than one party.
c. Notwithstanding an assignment of Contract payments, the Design- Builder, not the
assignee, is required to prepare invoices. Where such an assignment has been made,
the original copy of the invoice must refer to the assignment and must show that
payment of the invoice is to be made directly to the assignee as follows:
“Pursuant to the instrument of assignment dated ___________, make payment of this
invoi
ce to (name and address of assignee).”
Section 15.30 FREEDOM OF INFORMATION ACT (“FOIA”)
The District of Columbia Freedom of Information Act, at D.C. Official Code § 2- 532 (a-3),
requires the District to make available for inspection and copying any record produced or
collected pursuant to a District contract with a private contractor to perform a public function,
to the same extent as if the record were maintained by the agency on whose behalf the contract
is made. If the Design-Builder receives a request for such information, the Design-Builder
shall immediately send the request to the PM designated in Section 1.3 of this Agreement who
will provide the request to the FOIA Officer for the agency with programmatic responsibility
in accordance with the D.C. Freedom of Information Act. If the agency with programmatic
responsibility receives a request for a record maintained by the Design-Builder pursuant to the
Contract, the PM will forward a copy to the Design- Builder. In either event, the Design-
Builder is required by law to provide all responsive records to the PM within the timeframe
designated by the PM. The FOIA Officer for the agency with programmatic responsibility will
determine the releasability of the records. The District will reimburse the Design -Builder for
the costs of searching and copying the records in accordance with D.C. Official Code §2-532
and Chapter 4 of Title 1 of the D.C. Municipal Regulations.
Section 15.31 NONPROFIT FAIR COMPENSATION ACT OF 2020, D.C. Code § 2 -
222.01 et seq.
Section 15.31.1 Nonprofit organizations, as defined in the Act, shall include in their rates the
indirect costs incurred in provision of goods or performance of services under this RFTOP
pursuant to the nonprofit organization's unexpired Negotiated Indirect Cost Rate Agr eement
(“NICRA”). If a nonprofit organization does not have an unexpired NICRA, the nonprofit
organization may elect to instead include in its rates its indirect costs:
(a) As calculated using a de minimis rate of 10% of all direct costs under this Contract;
(b) By negotiating a new percentage indirect cost rate with the awarding agency;
(c) As calculated with the same percentage indirect cost rate as the nonprofit organization
ne
gotiated with any District agency within the past 2 years; however, a nonprofit
organization may request to renegotiate indirect costs rates in accordance with Section
15.31.2; or
(d) (As calculated with a percentage rate and base amount, determined by a certified public
accountant, as defined in the Act, using the nonprofit organization's audited financial
statements from the immediately preceding fiscal year, pursuant to the OMB Uniform
Guidance, and certified in writing by the certified public accountant.
Section 15.31.2 If this Contract is funded by a federal agency, indirect costs shall be consistent
with the requirements for pass -through entities in 2 C.F.R. § 200.331, or any successor
regulations.
Section 15.31.3 The Contractor shall pay its subcontractor which are nonprofit organizations
the same indirect cost rates as the nonprofit organization subcontractor would have received as
a prime contractor.
Section 15.32 CAMPAIGN FINANCE REFORM ACT
Prior to the execution of this Contract, the Design- Bu ilder shall complete and submit to the
Department a completed Campaign Finance Reform Act Self -Certification Form, Exhibit Y,
pursuant to D.C. Official Code § 1-1161.01.
Se
ction 15. 33 Equal Employment Opportunity (“EEO”)
The Design-Builder shall submit and EEO policy form substantially in the form of Exhibit P.
Section 15.34 DGS Close Out Manual
Deliverables shall include those outlined in Exhibit T.
ARTICLE 16- TERMINATION OR SUSPENSION
Section 16.1 All terminations or suspensions arising out of or under this Agreement shall be
in accordance with the terms of the Standard Contract Provisions (Construction Contracts and
Architectural/Engineering Services Contracts).
Section 16.2 Failure to Agree Upon GMP. The Department shall have the right to terminate
this Agreement in the event that the Department and the Design- Builder are unable to agree
upon a GMP for the Project and the Department shall have the right, but not the obligation, to
assume any of the Des ign-Builder’s trade subcontracts upon such terms and conditions as
requested by the Department. The Department’s decision to terminate under this section shall
be made in the Department’s sole and absolute judgment and shall not be subject to review by
any reviewing body, including, but not limited to, arbitrators appointed under this Agreement
or any court of competent jurisdiction.
Section 16.3 Termination for Default . The Department may terminate the Agreement for
default if the Design -Builder fails to perform any of its duties or obligations under the
Agreement. In particular, but without limitation, the Department may terminate the Agreement
if:
1. The Design-Builder fails to perform the Work diligently, in accordance with the Project
Schedule or to make such progress in the Work as the Department reasonably believes
is necessary to complete the Project within the time required by the Agreement; or
2. The Design-Builder fails to perform the Work in a good and workmanlike manner or
to correct defects in the Work promptly upon notice by the Department; or
3. The Department reasonably determines that the Design -Builder has abandoned the
Work, or has failed to pay laborers, mechanics, materialmen, Subcontractor or suppliers
when payment is due; or
4. The Design -Builder becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary petition under any chapter of the Bankruptcy Code or has an
involuntary petition filed against it under any chapter of the Bankruptcy Code, or the
Design-Builder has a receiver appointed, or files for dissolution or otherwise is
dissolved; or
5. The Design-Builder fails to pay its debts in a timely manner or becomes insolvent, the
Department reasonably determines that the Design-Builder does not have the financial
ability to carry out its obligations under the Agreement and the Design-Builder fails to
give the Department prompt and reasonable assurances of its ability to perform.
Section 16.3.1 The Department shall provide the Design -Builder with written notice of its
intent to terminate the Agreement, under this section.
Section 16.3.2 If the Department terminates the Agreement for default, the Department
will have the right to take over the Work, to accept assignment of some or all Subcontracts or
agreements with material suppliers, to take possession of the Project, to take and use all tools,
equipment and supplies then being used in connection with the Work, and to finish the Project
by whatever method it deems expedient, including accepting assignment of all outstanding
Subcontracts and Supply Agreements.
Section 16.4 Termination for Convenience. The Department may terminate the Contract in
whole or specified part, for its convenience, for any reason. The notice of termination shall
state the effective date of termination, the extent of the termination, and any specific
instructions. The termination for convenience that arises out of or under this Agreement shall
be in accordance with the terms of the Standard Contract Provisions (Construction Contracts
and Architectural/Engineering Services Contracts).
Section 1 6.5 Continued Responsibility After Termination. If the Design -Builder is
terminated, for default, for Convenience or otherwise, the Design- Builder shall remain
responsible for defects or non- conformities in all Work performed to the date of the
termination.
Article 17 – OTHER CONDITIONS AND SERVICES
This Agreement and the rights and obligations of the Department and Design- Builder herein
are subject to the approval of the Council for the District of Columbia.
Article 18 – CHANGES IN THE WORK
Section 18.1 Changes Authorized. In accordance with the Standard Contract Provisions
(Construction Contract) and the Standard Contract Provisions for Architectural and
Engineering services Contracts, the Department may, without invalidating the Agreement, and
without notice to or approval of any surety, order changes in the Work, including additions,
deletions or modifications. Any such change must be conveyed by the Department to the
Design-Builder via a written Change Directive or Change Order.
Section 18.2 Executed Change Directive/Change Order Required. Only a written Change
Directive or Change Order, executed by the Department ’s Contracting Officer, may make
changes to the Agreement. In particular, but without limitation, a written Change Directive or
Change Order executed by the Department’s Contracting Officer is the only means by which
changes may be made to the Substantial or Final Completion Dates, the Design- Build Fee, or
the Guaranteed Maximum Price.
Section 18.3 Department-Initiated Changes
1. If the Department wishes to make a change in the Work or to accelerate the Work, it
will execute and issue to the Design-Builder a written Change Directive, either directing
the Design-Builder to proceed at once with the changed W ork or directing it to not to
proceed, but to inform the Department, in writing, of the amount, if any, by which the
Design-Builder believes that Substantial or Final Completion Dates and/or the GMP
should be adjusted to take the Change Order or Change Directive into account.
2. Within ten (10) days of receiving a Change Directive, the Design-B uilder shall provide
the Department with a written statement of all changes in the Agreement, including,
without limitation, any changes to the Substantial or Final Completion Dates or the
GMP to which it believes it is entitled as a result of the Change Directive. If additional
time is sought, a schedule analysis supporting the requested extension should be
included. The schedule analysis should include a written narrative explanation. If a
change in the GMP is sought (or if the Department has requested a deduct change), the
statement should include a breakdown, by line item, of the estimated cost changes
attributable to the proposed change. The Department may request, and the Design-
Builder shall provide, further cost breakdowns, clarifications, project documentation or
back-up if the Department reasonably believes such additional information is needed to
understand and evaluate the request. The additional information required may include
cost and pricing data in accordance with the Department’s regulations. Any requested
adjustment to the GMP shall be limited to increased Cost of the Work due to the Change
Directive. The Design -Builder is not entitled to any markup on any kind of Change
Orders except as authorized in Section 18.8, and if so authorized, any mark-up shall be
in accordance with Section 18.11.
3. If the Department has not yet directed the Design -Builder to proceed with the change
described by a Change Directive, the Department may rescind it. If the Department
wishes to proceed or has already directed the Design-Builder to proceed, the Design-
Builder shall immediately proceed with the changed Work and, the Department and the
Design-Builder shall use their good faith best efforts to reach an agreement upon the
modifications to the Substantial or Final Completion Dates, and/or the GMPthat is
justified by the Change Directive. If the Department and the Design- Builder reach an
agreement, the agreement shall be set forth in a Change Order and the Design-Builder
shall also execute it, at which point it will become binding on both Parties.
4. If the P ar ties fail to reach an agreement within sixty (60) days after the Department
receives the Design-Builder’s detailed statement pursuant to Section 1 8.3.2, and such
other Project documentation as the Department may request, the Design -Builder may
assert a claim in accordance with the Agreement. In such a case, and subject to
adjustment via the claims and disputes process, the Department shall unilaterally grant
the Design-Builder such adjustments, if any, to the Substantial or Final Completion
Dates, the Guaranteed Maximum Price, and/or the Preconstruction or Design-Build Fee
as the Department has judged to be appropriate.
Sect
ion 18.4 Notice of Change Event. The Design -Builder must give the Department
written notice of any Change Event within ten (10) calendar days of the date on which the
Design-Builder knew, or reasonably should have known, of the Change Event. To the extent
available, the notice must state the nature of the Change Event and describe, generally, all
changes in the Agreement to which the Design- Builder believes it is entitled. Such notice is
an express condition precedent to any claim or request for adjustment to the Substantial or Final
Completion Dates, or the GMP arising from the Change Event and, if the notice is not given
within the required time, the Design -Builder will have waived the right to any adjustment to
the Substantial or Final Completion Dates, or the GMP arising from the Change Event.
Section 18.5 De tailed Change Request. Within twenty (20) days after giving notice of a
Change Event, the Design- Builder shall submit a written Change Request to the Department
describing, in reasonable detail, all adjustments it seeks to the Substantial or Final Completion
Dates or the GMP as a result of the Change Event. The Change Request shall include the same
information as described in Section 1 8.3 with respect to any Agreement changes the Design-
Builder seeks due to the Change Event, and the amount of any requested adjustment to the
GMP shall be limited in accordance with that Section 18.3.
Section 18.6 Changes to GMP. Subject to the condition precedent that the Design-Builder
have complied with the notice and documentation provisions of this Article, and subject to the
limitations stated in this Agreement, the Design-Builder is entitled to an adjustment to the GMP
in the following cases:
1. If the Department issues a Change Directive or Change Order that directs the Design -
Builder to proceed with work which is beyond the scope of Work included within this
Agreement; or
2. The Design-Builder encounters differing site conditions or Hazardous Materials not
identified in the Preconstruction Phase.
Section 18.7 Deductive Change Orders. The Department reserves the right to issue
deductive Change Orders (reducing the GMP or modifying the Substantial or Final Completion
Dates to an earlier date) when changes are effected, by Change Directive or otherwise, which
will decrease the cost of completing the Work or the time within which it can be completed.
Section 18.8 No Adjustments to Fee. The Design-Builder understands and agrees that the
Design-Build Fee shall not be increased or decreased as a result of any Change Orders or
Change Directive. In furtherance of this understanding, the Design-Builder agrees that it shall
not be entitled to an increase in the Lump Sum General Conditions Cost or the Design-Build
Fee by virtue of changes authorized by the Department unless such changes fall outside the
general scope of work contemplated by this Agreement. The term general scope of work shall
mean a state-of-the-art educational facility that is consistent with the Department’s program of
requirements and incorporates sustainable design initiatives. Without limiting the generality
of the foregoing, it is understood and agreed that the Design-Builder shall not be entitled to any
additional fees or general conditions unless (i) the Department makes additions to the scope
provided for in this Agreement that cause the GMP, either individually or in the aggregate, to
increase by more than ten percent (10%); or (ii) the Department makes additions to the scope
provided for herein which (other than for punchlist or warranty work) require the Design-
Builder’s services for the Project to extend beyond the Substantial Completion Date.
Section 18.9 Executed Change Orders or Contract Modifications are Final. The Design-
Builder agrees that any Change Order or Contract Modification executed by the Department
and Design-Builder constitutes its full and final adjustment for all costs, delays, disruptions,
inefficiencies, accelerations, schedule impacts, or other consequences arising from the change
modification in question, whether a Change Directive, or a Change Event, or from any claimed
cumulative effect of changes made to the date of the Change Order or Contract Modification,
and that no further adjustments in compensation or time shall be sought or made with respect
to the Change Directive or the Change Event giving rise to the Change Order or Contract
Modification. Although the Parties anticipate that most Change Orders or Contract
Modifications will not require an adjustment to the Cost of General Conditions, if the Work
described in a Change Order or Contract Modification requires an increase or decrease in the
Lump Sum General Conditions Cost (i.e. because such a Change requires additional field staff
or other equipment that would be classified as General Conditions Costs), the Change Order or
Contract Modification shall contain an increase to the Design-Build Fee adjusting such
amount. The cost of processing a Change Order or Contract Modification shall not be
considered an event that will require an increase in the Lump Sum General Conditions Cost.
Section 18.10 Failure to Agree. If the Design-Builder claims entitlement to a change in the
Agreement, and the Department does not agree that any action or event has occurred to justify
any change in time or compensation, or if the Parties fail to agree upon the appropriate amount
of the adjustment in time or compensation, the Department will unilaterally make such changes,
if any, to the Agreement, as it determines are appropriate pursuant to the Agreement. The
Design-Builder shall proceed with the Work and the Department's directives, without
interruption or delay, and shall make a claim as provided in Article 18 herein. Failure to
proceed due to a dispute over a change request shall constitute a material breach of the Contract
and entitle the Department to all available remedies for such breach, including, without
limitation, termination for default.
Section 18.11 Mark-Up on Trade Work.
The maximum mark up for Change Order work shall be as follows:
1. Intervening tier Subcontractor shall be entitled to a mark -up of five percent ( 5%)
(Covering home office overhead, the cost of insurance and bonds, field supervision,
general conditions and profit) on Work Performed by lower-tier Subcontractor;
2. To the extent permitted by Section 18.8, the Design- B uilder shall be entitled to an
increase in its Design -Build Fee at a maximum rate of 2% on work performed by
Subcontractor. Such markup shall cover the same cost elements that were included in
the Design-Build Fee;
3. D
irect Cost of the Work shall include, but not be limited to: (Direct Cost of the Work
does not, however, include home office overhead, field supervision, general conditions
or profit of either the subcontractor or the Design- Builder. No personnel above the
level of a working foreman shall be considered a Direct Cost of the Work).
(a) Labor. Payment will be made for direct labor cost plus indirect labor cost such
as insurance, taxes, fringe benefits and welfare provided such costs are
considered reasonable. Indirect costs shall be itemized and verified by receipted
invoices. If verification is not possible, up to five percent (5%) of direct labor
costs may be allowed.
(b) Rented Equipment. Payment for required equipment rented from an outside
company that is neither an affiliate of, nor a subsidiary of, the Design-Builder
will be based on receipted invoices which shall not exceed rates given in the
current edition of the Rental Rate Blue Book for Construction Equipment.
published by Data Quest. If actual rental rates exceed manual rates, written
justification shall be furnished to the Contracting Officer for consideration. No
additional allowance will be made for overhead and profit. The Design-Builder
shall submit written certification to the Contracting Officer that any required
rented equipment is neither owned by nor rented from the Design-Builder or an
affiliate of or subsidiary of the Design-Builder.
(c) Design-Builder’s Equipment. Payment for required equipment owned by the
Design-Builder or an affiliate of the Design-Builder will be based solely on an
hourly rate derived by dividing the current appropriate monthly rate by 176
hours. No payment will be made under any circumstances for repair costs,
freight and transportation charges, fuel, lubricants, insurance, any other costs
and expenses, or overhead and profit. Payment for such equipment made idle
by delays attributable to the Government will be based on one-half the derived
hourly rate under this subsection.
(d) Materials. Incorporated and unincorporated materials as permitted under
Section 9.1.
Article 19 – CLAIMS & DISPUTE RESOLUTION
All claims or disputes arising out of this Agreement shall be governed by the terms of the
Standard Contract Provisions (for Architectural and Engineering S ervices and Construction
Contracts).
Peter Henry Lyonga
Contracting Officer
6/25/2024