Proposed Contract with MCN Build, Inc. to Contract No. DCAM-23-CS-RFP-0017

MURIEL BOWSER
MAYOR
March 27, 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 of 2010 (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-23-CS-RFP-0017 with MCN Build, Inc.,
increasing the contract's not-to-exceed amount to $80,803,202. The increase in the not-to-exceed
amount is an early release of funds for an additional initial phase of the modernization of
MacArthur High School.
As part of the additional initial phase of the project, MCN Build, Inc., will provide construction
services, including existing condition-demolition, earthwork, masonry, concrete, structural steel,
miscellaneous metals, rough carpentry, fire protection, architectural mill work, roofing and
waterproofing, electrical, joint sealants, doors/frames/hardware, gypsum wallboard system,
ceramic tile, flooring, painting, furnishing, elevators, plumbing, HV AC, low voltage, and site
utilities while the District and MCN Build, Inc. 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,
Acting Chief Procurement Officer, DGS, at (202) 727-2800.
I look forward to the Council's favorable consideration of this contract modification.
Sincerely,
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 MacArthur High School Expansion

(A) Contract Number: DCAM-23-CS-RFP-0017
Modification No. 1

Proposed Contractor: MCN Build, Inc.

Proposed Increased Amount $65,858,204
Via Modification No. 1:

Total Contract’s NTE Amount: $80,803,202

Unit and Method of Compensation: Progress payments on a monthly basis

Term of Contract: September 26, 2023 (date of execution of the
Letter Contract by the Department of
General Services (the “Department” or
“DGS”)) through August 1, 2024
(“Substantial Completion Date Part 1A”),
August 16, 2024 (“Substantial Completion
Date Part 1B”), Augst 1, 2025 (“Substantial
Completion Date Part 2”), August 5, 2026
(“Substantial Completion Date Part 3”) with
an Administrative Term of August 16, 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:
2

Not applicable.

(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 requires the Contractor to provide design- build services for the expansion of the
MacArthur High School, a partial renovation of the existing school, and a new addition to provide
additional program spaces, such as additional classrooms and academic support spaces. The Project
also includes site improvements, including parking and site amenities. The Project shall be designed
in such a way as 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 CA25-844, with
an initial Not-to-Exceed amount of $14,944,998 ($995,000 Letter Contract + $13,949,998 Early Start
Agreement #1).

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 $65,858,204, from $14,944,998 to
$80,803,202. Modification No. 1 will authorize the release of necessary Project funding for several
construction services for 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 as CA25-844 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 developments that enhance the community, including transformational projects that
promote economic sustainability, to include community, education, of fice, retail, healthcare, and
3

institutional spaces, in the District of Columbia, Maryland, and Northern Virginia. The Contractor
provides a range of services, including preconstruction, construction management, general
contracting, and consulting services.

The Contractor has successfully completed the following projects for DGS:

1. Raymond Elementary School, Washington, DC, a $62,000,000 project.
2. MacFarland Middle School, Washington, DC, a $62,000,000 project.
3. Jefferson Middle School Academy, Washington, DC, a $75,000,000 project.
4. C.W. Harris Elementary School, Washington, DC, a $50,000,000 project.

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:
LR65116012028). 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: $80,803,202
Subcontracting Requirement %: 35% of subcontracting amount
Subcontracting Plan Required Dollar Value: $22,624,896.6
Subcontracting Plan Actual Dollar Value: $43,149,196

(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 1, 2024
(Part 1A), August 16, 2024 (Part 1B), August 1, 2025 (Part 2), and August 5, 2026 (Part 3) . 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 fai lure 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.

4

(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:

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 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’s website, the Contractor is a certified Local Business Enterprise and
Resident Owned Business. The Contractor’s CBE Number is LR65116012028, with an expiration
date of January 28, 2028.

(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:
5

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.

(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 not 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

Contracts that MCN Build, Inc. Currently Holds with the District (Not limited to DGS only):
Contract Number Project Caption

Project Value
1. DCAM-24-CS-RFP-0004 DB Martin Luther King Jr. ES $57,000,000
2. DCAM-23-CS-RFP-0018 Modular Campus at Nalle $16,000,000
3. DCAM-22-CS-RFP-0018 Browne EC $97,000,000
4. DCAM-22-CS-RFP-0017 MacArthur High School $72,000,000
5. DCAM-22-CS-RFP-0002 Fort Lincoln Park $29,000,000
6. DCAM-21-CS-RFP-0013 Garfield ES $52,000,000
7. DCAM-21-CS-RFP-0019 School Without Walls at Francis Stevens $78,500,000
8. DCAM-23-CS-RFP-0008 Tubman ES $47,633,071

Projects MCN Build, Inc. Is Currently Seeking with The District (Not limited to DGS only):

Contract Number Project Caption

Project Value
1. DCAM-24-CS-RFP-0006 Burroughs ES Modernization and Modular
Campus $81,000,000
2. DCAM-23-CS-RFP-0037 New Fort Davis Community Center Building $27,500,000
3. DCAM-23-CS-RFP-0036 Crummel Community Center Modernization $28,300,000
4. DCAM-23-CS-RFP-0035 New Douglass Community Center
Modernization $20,000,000

1101 4th Street, SW
Washington, DC 20024
Date of Notice: March 12, 2025 L0013872256Notice Number:
FEIN: **-***3429
Case ID: 18507118

Government of the District of Columbia
Office of the Chief Financial Officer
Office of Tax and Revenue
MCN BUILD INC
1214 28TH ST NW
WASHINGTON DC 20007-3315

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

COPY
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Memorandum
To: Delano Hunter
Director
From: Antoinette Hudson - Beckham
Agency Fiscal Officer
Reference: Proposed Mod No. 1 to Contract NO. DCAM-23-CS-RFP-0017
Design-Build Services for MacArthur High School Expansion
Date: March 17, 2025
Subject: Fiscal Sufficiency Review
In my capacity as the Agency Fiscal Officer of the Department of General Services (the “Department”
or “DGS”), I hereby state that Modification No. 1 (Early Start Agreement 2) to the Agreement for
Design-Build services for MacArthur High School Expansion (DCAM-23-CS-RFP-0017), with MCN
Build, Inc., in the amount of $65,858,204.00, is consistent with the Department’s current budget and
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 CA25-0844, with an initial Not-
to-Exceed amount of $14,944,998.00 ($995,000.00 Letter Contract + $1 3,949,998.00 Early Start
Agreement #1).
Per C&P, if approved, the proposed Modification No. 1, in the amount of $65,858,204.00, will increase
the Contract’s NTE amount to $80,803,202.00 ($14,944,998.00 + $65,858,204.00).
While funding in the amount of $80,803,202.00 is being certified for capital-eligible items only, there
is an ineligible amount of $382,771.00 listed in Exhibit B. See the non-capital expenditures column
and associated items. These items are ineligible for capital expenditure per the District Capital
Guidelines. The goods/services are needed in FY2025. There should be no purchases, commitments ,
and expenditures for these items until operating funds are available and a purchase order is issued for
the same amount.
The Department of General Services (DGS – Implementing AGY) has $80,803,202.00 in the District of
Columbia Public Schools (DCPS – Owner AGY) cumulative capital budget authority balance.
There is $54,927,769.00.00 in the current approved allotment budget and an additional $25,875,433.00
is pending the FY2026 capital budget load for the MacArthur HS Modernization project – 100312. Per
the approved FY2025-FY2030 CIP, MacArthur Blvd School capital project will receive $28,838,938.00
in FY2026.
The DIFS/PASS information is listed below/attached.
Project Number/
Name Subtask AY
Fund
Detail
Imp.
Agen
cy
Owner
Agenc
y
RK/PO Amount Comments
100312
(AM0.YY1MAC.MAC
ARTHUR
BOULEVARD
SCHOOL)
04.01
(MACBD.95101.MACA
RTHUR BLVD
SCHOOL.CAP PROJ -
PHYSICAL PLANT
(GA0))
N/A 3030300 AM0 GA0 PO695288 $995,000.00 Letter Contract
100312
(AM0.YY1MAC.MAC
ARTHUR
BOULEVARD
SCHOOL)
04.01
(MACBD.95101.MACA
RTHUR BLVD
SCHOOL.CAP PROJ -
PHYSICAL PLANT
(GA0))
N/A 3030300 AM0 GA0 PO709670 $13,852,869.00 ESA #1
Part of
$13,949,998.00
(Capital portion)
201552
(CCD Reverse
Capital Paygo to
Operating Funding)
11.03
DCPS Reverse Capital
Paygo to Operating
Funding - Contractual
Services
N/A 1010001 AM0 AM0 PO709671 $97,129.00 ESA #1
Part of
$13,949,998.00
(Operating
Portion)
100312
(AM0.YY1MAC.MAC
ARTHUR
BOULEVARD
SCHOOL)
04.01
(MACBD.95101.MACA
RTHUR BLVD
SCHOOL.CAP PROJ -
PHYSICAL PLANT
(GA0))
N/A 3030300 AM0 GA0 RK300105 $39,600,000.00 Proposed MOD
#1
Part of
$65,858,204
(FY25 Capital
Portion)
100312
(AM0.YY1MAC.MAC
ARTHUR
BOULEVARD
SCHOOL)
04.01
(MACBD.95101.MACA
RTHUR BLVD
SCHOOL.CAP PROJ -
PHYSICAL PLANT
(GA0))
N/A 3030300 AM0 GA0 RK300106 $382,771.00 Proposed MOD
#1
Part of
$65,858,204
(FY25 Ineligible
Portion)
100312
(AM0.YY1MAC.MAC
ARTHUR
BOULEVARD
SCHOOL)
04.01
(MACBD.95101.MACA
RTHUR BLVD
SCHOOL.CAP PROJ -
PHYSICAL PLANT
(GA0))
N/A 3030300 AM0 GA0 RK300107 $25,875,433.00 Proposed MOD
#1
Part of
$65,858,204
(FY26 Capital
Portion)
Total $80,803,202.00
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Services
for 3/17/25
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES

3924 Minnesota Avenue. NE, 5th 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 MacArthur High School
Expansion
Contract Number: DCAM-23-CS-RFP-0017
Contractor: MCN Build, Inc.

DATE: March 18, 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

GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
September 1, 2023
Joseph Khoury
Principal/EVP of Preconstruction
MCN Build
1214 28th Street NW,
Washington, DC 20007
joseph@mcnbuild.com
Reference: Request for Proposals No. DCAM-23-CS-RFP-0017 (“RFP”) – Design-Build
Services for MacArthur High School Expansion
Subject: Notice to Proceed and Letter Contract
Dear Mr. Joseph,
We refer to the proposal submitted by MCN Build, Inc. (the “Contractor” or “Design-Builder”) in
response to the above-referenced RFP. We are please d to inform you that this work has been awarded
to MCN Build, Inc. and if this Letter Contract (“Letter Contract”) is signed by the Contractor without
modification of any kind, it will serve as a notice to proceed with the work described below. This notice
to proceed is subject to the following terms:
1. Letter Contract. This is a Lett er Contract between the Contra ctor and the District of Columbia
Government, acting by and through its Department of General Services (“DGS” or the “Department”),
and shall govern our relationship until such time as a final contract is entered into for the work described
in the above-referenced RFP (the “Definitized Contract”); provided, however, that to the extent an issue
is not covered in this Letter Contract, the RFP shall govern. Once th e Definitized Contract is executed
by an authorized Contracting Officer, this Letter Contract shall automatically terminate and merge into
the Definitized Contract.
2. Scope of Work. The Contractor shall provide Design-Build Services for MacArthur High School
Expansion, located at 4530 MacArthur Blvd NW , Washington, DC 20007, as described in the
Contractor’s Proposal datedJuly 14, 2023, submitted in response to the subject RFP.
3. Deliverables. In connection with the services provided pursuant to this Letter Contract, the
Contractor shall provide, at a minimum, the deliverables ( Exhibit C ) in accordance with the
requirements in the RFP and Form of Contract and Schedule of Values (Exhibit A) to the Department’s
Program Manager and in the referenced instances to the Contracting Officer.
In the event that the Contractor fails to timely submit any such deliverable, the Contractor shall pay to
the Department as a disincentive fee Seven Thousand and Five Hundred Dollars ($7,500.00) plus Five

3924 Minnesota Avenue, NE, Washington DC 20019|Telephone (202) 727.2800 | Fax (202) 727-7283
Hundred Dollars ($500.00) per day after receiving written notice from the Contracting Officer of failure
to submit each deliverable. This remedy is cumulati ve and does not limit any other right or remedy of
the Department under the contract or applicable District law.
 Not to Exceed Amount. The limit of this authorization is up to $995,000.00 (“Not to Exceed”
amount or “NTE”) including $844,270.00 for Design Fee, $80,000.00 for Preconstruction Fee,
$18,485.00 for Insurance Burden, $18,855.00 for Performance and Payment Bonds, and $33,3
.00 for
Construction Management Fee as further described in the Schedule of Values ( Exhibit A). In no event
shall the Contractor be entitled to receive more than the NTE amount under this Letter Contract unless 
authorized in advance and in writing by a duly authorized Contracting Officer. This not-to-exceed 
amount includes all costs incurred by the Contractor in connection with the work authorized hereby.
 Construction Phase Compensation. The Contractor understands and agrees that the Department 
makes no representation or warranty that the Contractor shall be entitled to serve as the builder for the 
Project. If, however, the Department and the Contractor agree upon a GMP and schedule for the Project,
the Contractor agrees that it shall be paid a Design Fee of $4,100,000.00, Design-Build Fee of
$2,500,000.00 and that the Lump Sum General Conditions Cost shall be $3,010,000.00 including the
amounts in Section 4, based on the schedule and budget set forth in the RFP. The Contractor further 
agrees to enter into a design-build agreement that is substantially similar to the Agreement for Design-
Build Services issued with the RFP, subject only to such adjustments as were requested by the Contractor
in its bid and which are agreed to by the Department.
 Insurance. At all times while working under this Letter Contract, the Contractor shall maintain 
insurance as described in the RFP. All such policies shall be endorsed to add the District of Columbia, 
including, but not limited to, its Department of General Services, and the respective agents, employees,
and offices of each as additional insured. The Contractor must maintain insurance for all of their 
subcontractors as described in Exhibit I.
 Duration. Once signed by the Contractor, the Letter Contract will become effective on the date 
the Letter Contract is executed by the Department. This Letter Contract will terminate on the earlier to 
occur of the following: (i) the date the Definitized Contract becomes effective; or (ii) February 13, 2024.
DGS reserves the right to terminate this Letter Contract, in whole or specified part, for convenience in 
the manner described in Article 5 and Article 6 of the District of Columbia Department of General 
Services Standard Contract Provisions General Provisions for Construction Contracts (Exhibit B1)a n d
Standard Contract Provisions for Architectural and Engineering Services Contract (Exhibit B2).
 Billing. All invoices shall be submitted directly to the Department at the address specified in the
RFP. Purchase Order numbers should be included in all future invoices and accounting records. Properly
prepared invoices with the necessary backup shall be paid within thirty (30) days of receipt. Invoices 
not paid by that date shall bear interest in accordance with the Quick Payment Act.

 Key Personnel. To carry out its duties, the Design-Builder shall provide at least the key personnel
identified in Exhibit F (“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:
(i) Project Manager; (ii) Superintende nt; and (iii) Project Executive.
B - Key Personnel of the Architect/Engineer:
(i) Project Manager; (ii) Project Architect; (iii) Principal in Charge; (iv) Lead Mechanical
Engineer; and (v) Lead Envelope Consultant.
It is contemplated that these Key Personnel 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. If any of the Key Personnel
becomes unavailable to perform services in connection with the Letter Contract 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 sh all be entitled to complete information before
approving such replacement. Certain members of the Design- Builder’s Key Personnel shall be subject
to a replacement fee for their removal or reassignment by the Design-Builder.
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
the Department $25,000 for each replacement as a rep lacement fee and not a pe nalty, 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.
10. The Design- Builder shall utilize the Department’s current project management software,
ProjectTeam, to submit any and all project documentation 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 Track er); (vi) drawings and specifications; (vii) GMP
and any Submissions that require approval by DC Council (viii) punch list; and (ix) other Project
documents as may be designated by the Department.
Electronic storage and transmission of information via ProjectTeam system shall be compliant with the
provisions of DGS document security.
11. Invoice Submittal. The Contractor shall create a nd submit payment requests in an electronic
format through the DC Vendor Portal, https://vendorportal.dc.gov. The Contractor shall submit proper
invoices on a monthly basis. To constitute a proper invoice, the Contractor shall enter all required
information into the Portal after selecting the applicab le purchase order number which is listed on the
Contractor’s profile. Properly prepared invoices with the n ecessary backup shall be paid within thirty
(30) days of receipt. Invoices not paid by that date shall bear interest in accordance with the Quick
Payment Act. For assistance with th e registration process call (202) 741-5200
or visit http://vendorportal.dc.gov to submit an inquiry.
12. Purchase Order Number. This Letter Contract will become ef fective on the date the Letter
Contract is executed by the Department. The Depa rtment’s Contracting & Procurement Division will
issue a purchase order number and will be sent in a separate cover. That number should be included in
all future invoices and accounting records. In the event that you do not obtain a purchase order number
please contact Safiullah Baran via safiullah.baran@dc.gov directly to obtain this number.
13. Ownership and Use of Documents. All documents and work product prepared by the Contractor
shall become the property of the Department upon the payment of invoices s ubmitted under the Letter
Contract.
 Trade Work/Site Control. Unless otherwise directed by the Department, the Contractor shall not
perform any trade work or take control of the site. Any authorization to proceed with trade work will 
include appropriate provisions relating to compliance documents (first source employment agreement, 
Department of Small and Local Business Development ( “DSLBD”)), bonds, insurance, and safety
procedures. At a minimum, however, the Department’s Standard Contract Provisions for Construction 
shall apply. In addition to the requirements set forth in any such subsequent authorization, prior to 
executing this Letter Contract, the Contractor shall provide the Department’s Contracting Officer with 
certificates evidencing insurance, a payment and performance bond having a penal value equal to the 
then value of the Letter Contract and the Contractor’s agreement of indemnit y. In the event the 
Contractor fails to provide the Department with such certificates of insurance, the agreement for 
indemnity or bond, the Department may withhold any subsequent payment until such documents are 
provided.
 Entire Agreement; Modification. This Letter Contract, along with the Standard Contract 
Provisions, (Exhibit B2 – Architectural & Engineering Services and Exhibit B1 – Construction
Services) supersede all contemporaneous or prior negotiations, representations, course of dealing, or 
agreements, either written or oral. No modifications to this Letter Contract shall be effective against the
Department and unless made in writing signed by the Department. Notwithstanding the provisions of 
this Section 15, nothing herein shall limit the Department’s ability to unilaterally modify this Letter 
Contract.
 Davis Bacon Act Wage Determination. The Contractor agrees that the work performed under this
Letter Contract shall be subject to the Davis Bacon Wage Determination and Title 29 Code of Federal 
Regulations (“CFR”) as set forth in Exhibit D1 and Exhibit ( in effect at the time of Letter Contract 
execution by the Department.
 Living Wage Act. The Contractor agrees that the work performed under this Letter Contract shall
be subject to the Living Wage Act in effect at the time of Letter Contract execution by the Department. 
As such, the Contractor and its subcontractors shall comply with the wage reporting requirements 
imposed by the act as set forth in Exhibit G.
 Performance and Payment Bonds. The Contractor agrees to post a payment and performance 
bond having a penal value equal to the Agreement amount at the time the Agreement is executed. The 
Design-Builder will be required to post an updated payment and performance bonds to reflect the 
GMP Amendment amount (Exhibit H).
18. Campaign Finance Reform Act. Prior to the ex ecution of the Contract, the Design-Builder shall
complete and submit to the Department a completed Campaign Finance Reform Act Self-Certification
Form, Exhibit J, pursuant to D.C. Official Code § 1-1161.01.
ISSUED BY: ACCEPTED BY:
The Department of General Services MCN Build, Inc.
By: By:
Name: Peter Ghogomu Name:
Title: Contracting Officer Title:
Date: Date:
Joseph Khoury
EVP of Preconstruction
9/26/23
Joseph Khoury
Digitally signed by Joseph Khoury
DN: C=US, E=joseph@mcnbuild.com, O="MCN Build, Inc.",
CN=Joseph Khoury
Reason: I am the author of this document
Date: 2023.09.26 13:43:49-04'00'
9/26/2023
1/24/2024

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DCAM.23-05-RFP.0017 ModificationNo_t 2012
5.ContractRecap:
NTPLetterContact Executed:0972672023 $985,000.00
Contract(ESA1) Exocutod:1728/2024 $ 12,948,998.00,
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GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES

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1 MacArthurHighSchoo!Expansion4530MacArthurBivdNW Washington,DC20007
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MCNBuild,IncDate:1/16/2025 ‘Area(s.f):111,000Rov:100%DesignDevelo Estimatoris):MB,SB
ESA #2
Description

‘GENERALREQUIREMENTS:EXISTINGCONDITIONS-DEMOLITION.(CONCRETE.MASONRY‘STRUCTURALSTEEL.MISCELLANEOUSMETALS.ROUGHCARPENTRY.‘ARCHITECTURALMILLWORKROOFING&WATERPROOFING.‘JOINTSEALANTSDOORS/FRAMES/HAROWARE.‘ALUMINUM&GLASS.‘GYPSUMWALLBOARDSYSTEMS.(CERAMICTILE,"ACOUSTICALCERINGSFLOORINGPAINTING.SPECIALTIESEQUIPMENTFURNISHINGSELEVATORSFIREPROTECTIONPLUMBING.HVAC.ELECTRICALLOWVOLTAGE‘EARTHWORK,‘SITEIMPROVEMENTS.‘SITEUTILITIES $53,814,506]$60,746,979
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GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES

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-1-

DESIGN-BUILD AGREEMENT
FOR
MACARTHUR HIGH SCHOOL EXPANSION
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
MCN BUILD, INC.
CONTRACT NUMBER: DCAM-23-CS-RFP-0017

-2-
PROJECT INFORMATION
A. P
ROJECT SUMMARY
1.
Project Name:
Design-Build Services for MacArthur HS
Expansion
2. Project Address: 4530 MacArthur Boulevard NW,
Washington, DC 20007
3. Agreement Type: Design-Build with Guaranteed Maximum
Price
4. Client Agency: District of Columbia Public Schools
(“DCPS” or “Client Agency”)
5. Design-Builder: MCN Build, Inc.
6. Agreement Amounts:
i. Initial NTE: $14,944,998.00
ii. Project Budget: $85,897,344.00
7. Design-Builder Compensation:
i. Design Fee (including
Construction Administration): $4,825,595.00
ii. Design-Build Fee: $2,942,005.00
a. Base Design-Build Fee: (60% of
Design-Build Fee)) $1,765,203.00
b. At-Risk Design-Build Fee: (40%
of Design-Build Fee) $1,176,802.00
iii. Lump Sum General Conditions
Cost: $3,010,000.00
iv. Allowances:
$2,750,000.00 - Permit Allowance
(including cost for DOB’s Program ),
$900,000.00; Utility Allowance for new
services, $500,000.00; Public Space
Improvements Allowance , $500,000.00;
Maintenance Allowance, $100,000.00; and
furniture, fixtures, and equipment
(“FF&E”)/Millwork/Locker Allowance for
Part 1 and Part 2 areas, $750,000.00.
-3-

v. Preconstruction Fee (15% of the
Base Design-Build Fee) $264,780.45
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 May 2024
11. Substantial Completion Dates:
Part 1A - August 1, 2024
Part 1B - August 16, 2024
Part 2 - August 1, 2025
Part 3 - August 5, 2026
12. Final Completion Date: January 15, 2027
13. Administrative Term Expiration
Date: August 16, 2027
14. Letter Contract:
Period of Performance
From September 26, 2023 (date of
execution of Letter Contract) through
October 1, 2024.
NTE Amount: $995,000.00
15. GMP Basis Project Documents Design Development Documents
16. Key Personnel Replacement: $25,000.00 per replacement
17. Assumptions and Clarifications Exhibit Y

Page 4 of 121

DESIGN-BUILD AGREEMENT
MACARTHUR HIGH SCHOOL EXPANSION
DCAM-23-CS-RFP-0017
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 MCN
BUILD, INC., a company duly organized under the laws of the District of Columbia, and with
a place of business at 1214 28 th Street NW, Washington, DC 20007 (the “Design-Builder” or
“Contractor” and collectively with the Department, the “Parties”).
RECITALS
WHEREAS, the Department issued a Request for P roposals dated May 30, 2023 (the
“RFP”) to engage a design-builder to prepare a design for and to construct and complete the
work at MacArthur High School (“MacArthur HS”) Expansion located at 4530 MacArthur
Boulevard NW, Washington, DC 20007 (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/
preconstruction phase; and (ii) the construction phase;
WHEREAS, the Department requires that Part 3, the final part of the Project, be
substantially completed no later than August 5, 2026 (“Part 3 Substantial Completion Date”);
WHEREAS, the Design-Builder submitted a proposal entitled “Design-Build Services
for MacArthur High School Expansion,” dated July 14, 2023, 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 MacArthur High School Expansion;
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, and including an allowance for the maintenance of the school and grounds per
the maintenance and operations plan until achieving Final Completion (such budget, the
“Project Budget”); and
WHEREAS, the Department and the Design-Builder entered into a letter contract dated
September 26, 2023 (the “ Letter Contract”) pursuant to which the Design-Builder was
authorized to proceed with certain design, preconstruction, abatement, and demolition services

Page 5 of 121

in furtherance of the Project.
NOW, THEREFORE, the Department and Design-Builder, for the consideration set
forth herein, mutually agree as follows.
Article 1 - 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 term s “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 (Exhibit
J)), 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 have the meaning set forth in Section 0 of this
Agreement.
Section 1.7. Contract Documents.
The term “Contract Project Document(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 , and any
addenda to the RFP issued thereto.

Page 6 of 121

Section 1.8. Design/Preconstruction Phase Services.
The services to be provided under Article 3 constitute the design & preconstruction phase
services to be performed by the Design-Builder.
Section 1.9. Drawings.
The drawings are the graphic and pictorial portions of the Contract Project D ocuments,
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 punch-list 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 punch-list 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 emission, 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

Page 7 of 121

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
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
controlled 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,
General 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 Part 1.
Substantial Completion Part 1 shall mean that all of the following have occurred:
A. The Project’s Part 1 construction and installation work have been completed
with only minor punch-list items remaining to be completed.
B. Part 1 of the Project has obtained a Department of Buildings (“DOB”)
Certificate of Occupancy, if required.
C. All Operation and Maintenance Manuals for Part 1 have been finalized,
submitted, and approved. All Operations and Maintenance Manuals shall be

Page 8 of 121

submitted to the Department six months prior to Substantial Completion.
D. Required trainings for Part 1 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.
E. Draft Warranties for Part 1 have been submitted and approved.
F. The Part 1 portion of the facility and site have been deep cleaned and cleared of
any construction debris.
G. Part 1 of the Project is ready for the Department and the District of Columbia
Public Schools (“DCPS”) to use it for its intended purpose.
H. All equipment, supplies, materials, and 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 for Part 1.
I. Part 1 commissioning is complete, and a final punch- list is documented with
completion dates established.

Section 1.23 Substantial Completion Part 2.
Substantial Completion Part 2 shall mean that all of the following have occurred:
A. The Project’s Part 2 construction and installation work have been completed
with only minor punch-list items remaining to be completed.
B. Part 2 of the Project has obtained a DOB Certificate of Occupancy.
C. The Project has obtained DC Department of Health approval for the Health
Suite.
D. All Operation and Maintenance Manuals for Part 2 have been finalized,
submitted, and approved. All Operations and Maintenance Manuals shall be
submitted to the Department six months prior to Substantial Completion.
E. Required trainings for Part 2 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.
F. Draft Warranties for Part 2 have been submitted and approved.
G. The Part 2 portion of the facility and site have been deep cleaned and cleared of
any construction debris.
H. Part 2 of the Project is ready for the Department and DCPS to use it for its
intended purpose.
I. All equipment, supplies, materials, and 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 for Part 2.
J. Any Part 2 commissioning is complete and a final punch-list is documented
with completion dates established.

Section 1. 24. Substantial Completion Part 3.
Substantial Completion Part 2 shall mean that all of the following have occurred:
A. The Project’s Part 3 construction and installation work have been completed
with only minor punch-list items remaining to be completed.
B. Part 3 of the Project has obtained a DOB Certificate of Occupancy; Final DOB
Certification of Occupancy for the entire building shall be received within thirty
(30) days of Substantial Completion; and all other required permits or approvals
have been obtained.

Page 9 of 121

C. All Operation and Maintenance Manuals for Part 3 have been finalized,
submitted, and approved. A ll Operations and Maintenance Manuals shall be
submitted to the Department six months prior to Substantial Completion.
D. Required trainings for Part 3 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.
E. Draft Warranties for Part 3 have been submitted and approved.
F. The Part 3 portion of the facility and site have been deep cleaned and cleared of
any construction debris.
G. Part 3 of the Project is ready for the Department and DCPS to use it for its
intended purpose.
H. All equipment, supplies, materials, and 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 for Part 3.
I. Any Part 3 commissioning is complete and a final punch-list is documented
with completion dates established.

Section 1. 25. Substantial Completion Date(s).
The date s established herein by which the Design-Builder shall achieve Substantial
Completion for each Part of the Project . The Substantial Completion Date may be modified
only by Change Order, Contract Modification, or Change Directive in accordance with the
Agreement.
Section 1. 26. 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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Article 2 - GENERAL PROVISIONS
Section 2.1. Letter Contract
The 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 P arties dated September 26, 2023. Pursuant to the terms of the Letter
Contract, upon execution of this Agreement by the Department (the “Agreement Effective
Date”), the Letter Contract shall automatically terminate and shall merge into and be
superseded by 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 Letter Contract by the Department 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
Contract 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 endeav or 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 shall allow the Depa rtment to both participate in the investigation of
incidents and exercise control over decisions regarding external reporting. The Design-Builder,

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Subcontractors, and their respective employees working on this Project may be required to sign
a confidentiality statement.
Section 2.5. Project Description.
The Design-Builder shall provide design-build services required for a fully modernized
facility of MacArthur High School, located at 4530 MacArthur Boulevard NW, Washington,
DC 20007. The Project includes full design and construction services for MacArthur HS. The
Design-Builder shall provide a complete renovation of the existing building and a new
construction addition to best execute the school’s programmatic needs. The Design Builder
shall coordinate and advise on a design that is most advantageous to add a new addition that is
aligned with the DCPS Educational Specifications (“Educational Specification” or “Ed
Spec(s)”).
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 Contract
Documents.
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:
civil, architectural, electrical, structural, and mechanical design services as required for
the Project; construction management services inclusive of budgeting, value
engineering (“Value Engineering”), scheduling, P roject phasing, P roject
administration, management and coordination of subcontractors. Design scope shall
also include full design and specifications, with a minimum of two options for basis -
of-design for each, of the furniture, fixtures, and equipment (“FF&E”) for GMP pricing.
c) To conduct subsurface investigation work if and as required for the Project.
d) To furnish and provide all materials, management, personnel, equipment, hazardous
material abatement, supervision, labor, and other services necessary to complete the
Project.
e) To provide the necessary design, consultants , and documentation for all permitting,
zoning, historic preservation, and US Commission of Fine Arts approvals.
f) To provide move coordination and logistics support for the Project.
g) To confirm the design and construction meets the requirements of Appendix Z of the 2017
DC Energy Conservation Code and can be certified Net Zero Energy through International
Living Future Institute’s (“ILFI”) Zero Energy Building program or U.S. Green Building
Council’s (“USGBC”) LEED Zero program

h) If applicable, the Design-Builder shall obtain Chapter 2 and Chapter 3 permits from the
Department of Energy and Environment (“DOEE”) prior to the installation of a boiler.

The Design -Builder shall provide the Department with a GMP based on the Design
Development Documents. In addition to this Early Start Agreement, the District anticipates a
subsequent 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

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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 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 and the like.
Section 2.6. Program Manager.
The Department has engaged a Program Manager to provide certain program
management functions. 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 Services 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 -Builder will be required to work with the Department and the Project
stakeholders through a collaborative design process to advance the programmatic educational
specifications (“Ed Specs”) to a fully realized Project in accordance with the available Project
budget. The Design-Builder will be required to : (i) 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); (ii)
develop a comprehensive Project phasing; (iii) solicit competitive trade bids for the
construction work and to develop an acceptable guaranteed maximum price and corresponding
scope and schedule for the work, and (iv) 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.
Section 2.8. Warranties and Representations

Section 2.8.1 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.
Section 2.8.2 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

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materially inaccurate, that shall constitute a material breach of the Agreement, entitling
the Department to any and all available remedies.
Section 2.8.3 The terms and conditions of this Section 2.8 shall apply during both the
Design & Preconstruction and Construction Phases.
Section 2.9. Responsibility 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, m aterial
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 Building Information Modeling.
Building Information Modeling (“ BIM”) is required to be used throughout the lifecycle
of the Project, including all Project phases from P roject 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.

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Article 3 - 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; (iv) 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 assessment 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. Building System Assessment. If requested by the Department, within
fourteen (14) days after the Preconstruction NTP is issued, the Design-Builder shall
conduct an assessment report of the building systems and submit a written report to the
Department that assesses whether the existing building systems can accommodate the
new space or it additional systems need to be added as part of this Project. Such a report
shall take into consideration the nature of this Project and the proposed Ed Spec. This
report sh all assess all of the building’s key systems, in cluding, but not limited to
HVAC, kitchens, roof, windows, electrical, lighting, audiovisual equipment, intercom,
fire alarms, and plumbing.
Section 3.1.1.1 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 , the Design-Builder, and any other affe cted
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.

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The Project schedule is attached hereto as Exhibit B.
Section 3.1.1.2 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 for the Ed Specs. As part of the concept design phase, the Department
requires 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 submittal shall specifically identify any deviations from the
Educational Specifications and shall explain the rationale and cos t implications
associated with such deviations. The Department shall have the right to disapprove the
concept design submittal for any reason. Following the review of the concept design
submissions by DCPS and the Department, the Department shall approve a final
concept design. The Design-Builder shall make revisions to the concept 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 for the Concept Design are referenced in
Exhibit W.

Section 3.1.1.3 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 3.1.1.4 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 3.1.1.5 Construction Management Plan. The Design-Builder shall submit a
draft of its construction management and project phasing plan (“Construction
Management Plan”) within fourteen (14) 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

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surveys plan, temporary fire protection measures, P roject signage, pest control,
construction staging plan, and construction logistics plan.

Section 3.1.1.6 Disincentive 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
deliver any of the deliverables required in Section 3.1 (and 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 3.1.1.7 Additional Preconstruction Services. In addition 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 3.1.2 (Reserved)
Section 3.1.3 Design 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 set forth and attached hereto as
Exhibit A and the Department’s other requirements for the Project. 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.
Section 3.1.3.1 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 and soft copies of the complete set of 35% Schematic
Design Documents; (iv) prepare and submit soft copies of the complete set of 60%
Design Development Documents, Specifications and Design-Builder’s cost estimate
and schedule; (v) prepare soft copies of the complete set of 95% Construction
Documents, Specifications and Design-Builder’s cost estimate and schedule; (vi)
review existing condition assessment and recommendation; and (vii) obtain all
necessary building permits to support the Project Schedule.

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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.
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 Project
budget and programmatic requirements, as the same was 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 3.1.3.1.1 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 S chedule, Project Budget, 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. The Design-Builder
shall provide maintenance and repair cost services for major design components and
mechanical, electrical, and plumbing (“MEP”) systems selected at the schematic design
phase, 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. 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 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. The
requirements and tasks for Schematic Design are as referenced in Exhibit W.
Section 3.1.3.1.2 Schematic Budget Estimate 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, Value Engineering analysis , and a detailed
recommendation 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

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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 3.1.3.1.3 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 schedule contemplated in
this Agreement. To the extent any such long-lead items are identified, the memorandum
shall make recommendations for addressing such items.
Section 3.1.3.1.4 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 3.1.4 Design Development Phase & Early Release Packages.
The Design -Builder 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 halfway 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 s chematic 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.
Section 3.1.4.1 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 section, and schedules;

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b. Draft specifications for materials, systems, 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 FF&E design, including specifications, with a minimum of two options
for basis-of-design for all furniture selections that shall be used for GMP pricing
f. An interior finishes 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 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 ILFI or USGBC for Net Zero Certification
k. Net Zero Energy Report that includes all recommended strategies applicable to
achieving a Net Zero Energy ready building.
l. Participate in SIT Meetings, and community meetings as required by
DGS/DCPS;
m. 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;
n. Respond in writing to all DCPS comments on plans;
o. 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;
p. Coordinate final utility plans as required;
q. Act as scribe for all design-related meetings. Distribute meeting minutes to all
attendees;
r. Baseline Schedule bi-weekly update in the format set forth in the RFP; and
s. 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.

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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. Final Draft of the “Percent for Art” Public Art Package to be used as
the scope for the Artists’ RFP.
xi. Cost Estimate.
xii. Value Engineering analysis and detailed recommendation for
Project savings (even if the Project is not over budget).
xiii. Quality Control Plan.
xiv. Maintenance and Operations Plan.
xv. Final design and specifications, with minimum of two options for
basis-of-design for each, of the full FF&E package for GMP
pricing.

Section 3.1.4.2 Early Release Packages / Long Lead Materials /Abatement &
Demolition.
Section 3.1.4.2.1 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 3.1.4.2.2 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 3.1.4.2.3 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.

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Article 4 - FORMATION OF GMP PROPOSAL
Section 4.1. General.

During the Design & Preconstruction Phase, the Design-Builder shall cause the Design -
Builder’s Architect to prepare the design development documents, which will serve as the
GMP basis project documents (“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 the 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 Guaranteed Maximum Price.
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 Guaranteed Maximum Price,
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-
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

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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. Following 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 that 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’ compli ance
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. As 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 t hat the Des ign-
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

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bidding process and that the Design-Builder shall not misrepresent any such data to the
Department or its Program Manager.
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 Value 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 (including cost for
Department of Buildings (“DOB”) Velocity Program) ($900,000.00), Utility
Allowance ($500,000.00), Public Space Improvements Allowance ($500,000.00),
Maintenance Allowance ($ 100,000.00), and FF&E/Millwork/Locker Allowance for
Part 1 and Part 2 areas ($750,000.00).
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 Completi on
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 three
categories as applicable: New Construction, Renovation and Sitework.
j) Each GMP may include an agreed-upon sum as the Design-Builder’s Contingency and
the Owner contingency, each of which shall be identified as a separate line item in the
GMP's Schedule of Values.
A. Construction contingency

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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 the 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
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 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 the 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.

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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.
Section 4.8 Approval of GMP.
The Department and the Design-Builder 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 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 the 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.
Section 4.12. Unsafe Materials and Hazardous Materials

Section 4.12.1 The Design-Builder shall not bring, spill or release onto the site asbestos,
polychlorinated biphenyls (PCBs), or any other Hazardous Material that is not
customarily used in a facility of the type and similar to the Project, and shall bring it to
the Department’s attention any specification of such Hazardous Materials in the Design
Documents. If the Design-Builder believes that anything in the Agreement would
require that it use or bring onto the site asbestos, PCBs, or any Hazardous Material that

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is not customarily used in a facility of the type and similar to the Project, it shall
immediately inform the Department and seek direction before proceeding.
Section 4.12.2 The Design-Builder shall abate and remove Hazardous Materials on or
within the site as necessary to complete the Work contemplated by this Agreement.
The Design -Builder shall comply with all laws, including, without limitation, the
requirements of the Environmental Protection Agency (“ EPA”) and all jurisdictional
agencies as well as all laws relating to safety, health welfare, and protection of the
environment, in removing, treating, encapsulating, passivating, and/or disposing of
Hazardous Materials, including, but not limited to, removal, treatment, encapsulation,
passivation, and/or disposal of the Hazardous Materials. If any notices to governmental
authorities are required, the Design-Builder shall also give those notices at the
appropriate times. The Design-Builder shall ensure abatement subcontractors and disposal
sites are appropriately licensed and qualified.
Section 4.12.3 The Design -Builder shall be entitled to submit a change request in
accordance with Article 3 of the Standard Contract Provisions (Construction Contracts)
in the event the Design -Builder encounters Hazardous Materials beyond those
contemplated in the Contract Documents.
Section 4.12.4 The Design-Builder shall keep detailed records documenting Work done
so that the Department may independently verify compliance with all laws, the number
of units actually removed, treated, and/or disposed of, and the appropriate unit price(s)
applicable to the Work.

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Article 5 - CONSTRUCTION PHASE
Section 5.1 General.
The Construction Phase shall not commence until the Department issues a Notice to
Proceed 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 Desi gn-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 paying 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.

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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. archi tectural,
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 for its review and comment.
Section 5.2.2 Construction 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 (“Drawings 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. The Design -Builder shall submit the Permit Set to the
Department of Buildings (“DOB”) 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

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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 De sign-Builder’s
maintenance of the building following Substantial Completion.
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 agreed, 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 Section
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-Builder 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 strategi es 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.

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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.
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;

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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;
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 provision requiring that all Subcontractors 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 Subcontractors; 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 which allows 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 subcontractors 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

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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 subcontractors 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 Subcontractors 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
Subcontractors 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 Subcontractors or Suppliers
at any tier.
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-Builder shall be required to provide an evaluation of each
of its subcontractors’ 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 Subcontractors
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

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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 la ter than the
applicable scheduled completion date shall not constitute requests for an 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 scheduled 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 Depa rtment’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 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 Guaranteed
Maximum Price 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 Guaranteed Maximum Price 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 Guaranteed Maximum Price
will operate to incr ease the Guaranteed Maximum Price or waive the Department ’s
right to enforce the Guaranteed Maximum Price. If the report reflects budget overruns,
it must also include a recovery plan.

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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 detail changes in the Work during the month. The Design-Builder shall also
maintain a daily log containing a record of weather, Subcontractors 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.
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 To 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:
i. Project Manager
ii. Superintendent; and
iii. Project Executive

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B - Key Personnel of the Design-Builder’s Architect/Engineer

i. Project Manager
ii. Project Architect
iii. Principal in Charge
iv. Lead Mechanical Engineer; and
v. Lead Envelope Consultant

It is contemplated that these Key Personnel 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-Builder’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.
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 Section of this Agreement as
replacement fee and not a penalty, to reimburse the Department for its administrative
costs arisi ng 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.

Section 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 removed 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.

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Section 5.8 Qualified Personnel/Cooperation.
The Design-Builder shall employ on the Project only those employees and Subcontractors
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 Subcontractors 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 Subcontractors 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 Subcontractors
to 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 The 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 Delays 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

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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 Subcontractors 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 Delays 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 The 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 Delays 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, Subcontractors or
material suppliers be deemed an Excusable Delay; or
Section 5.11.3.3 Delays caused by differing Site Conditions as permitted by Article 4,
S
ection 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, subcontractors , 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, Subcontractors 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

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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-Builder 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.

Section 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, 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.

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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 subcontractors 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.
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 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 & Preconstruction Phase and attached hereto as Exhibit N.

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Section 5.14.2 Punch-list. Promptly before Substantial Completion, the Design-
Builder shall cause the Design -Builder’s Architect to develop a punch-list . Once the
punch-list is prepared, the Design-Builder shall inspect the work along with
representatives from the Department. The punch-list shall be revised to reflect
additional work items that are discovered during such inspection. The Design-Builder
shall correct all punch-list items no later than ninety (30) 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 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.

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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 subcontractors, 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 NTP, 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 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.

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The Quality Control Plan must clearly describe quality control measures such as using
the 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-Build er 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 discuss 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. A ll 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 the 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.
Section 5.19 Acceleration.
Subject to the terms of this Section, the Department shall have the right to direct the

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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 behi nd 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 notic e (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 relie d 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 re quirements 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
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)

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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) punch-list ; 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 subcontractors 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 Exhibit C are required during the Construction Phase.
Section 5.25 Close-Out Deliverables.
The deliverables set forth in Exhibit N are required during the Project’s Close -Out and
prior to Final Payment, as set forth in Section 10.12 and below:
Deliverables shall include those outlined in Exhibit T (DGS Close-Out Manual) including but
not limited to the below items. If there is a conflict between Exhibit T and the deliverable list
below, Exhibit T shall prevail.
a) A complete set of the Design-Builder’s Project files.
b) A complete set of product manuals (O&M), training videos, warranties, etc.
c) As-built record drawings.
d) Attic stock and schedule.

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e) Equipment schedule.
f) Proposed schedule of maintenance.
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 its 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 th e 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-Builder’s Designated Representative.
The Design -Builder 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 personnel 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 approval. 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 The 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 this 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-
Builder acknowledges and agrees that the percentage of the total amount of the Design-Build
Fee set forth in the Project Information Section of this Agreement is at risk (the “At-Risk
Portion”), and the Design-Builder shall only be entitled to the At-Risk Portion as set forth
below. Unless and until the Design-Builder’s entitlement to any subset of the At-Risk Portion
is determined by the Department, the Design-Builder shall only be entitled to bill for the
portion of the Design-Build Fee that is not at risk (the “Base 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 Award Fee Pool. The At-Risk Portion shall be used to establish and fund
an award fee pool (“the Award Fee Pool”). Within sixty (60) days after approval and
fully execution of this Agreement, the Department shall appoint a committee that will
determine entitlement to those portions of the Award Fee Pool so designated below (such
committee, the “Award Fee Evaluation Committee”). The Award Fee Evaluation
Committee will consist of: (i) the Department’s Deputy Director for Capital
Construction or their designee; (ii) DCPS Chief of Facilities or their designee; (iii) DGS
Contracting Officer or their designee; (iv) DGS Capital Construction representative; and
(v) DCPS Facilities representative. Committee members shall not include an individual
who has day-to-day interactions or involvement on the Project, or an individual who is
presently involved in an active project with the Design-Builder.
Section 8.1.2 The Design-Builder may earn the At -Risk Portion of the Design -Build
Fee in accordance with Exhibit R.
Section 8.2 Lump Sum General Conditions Cost.
The Design-Builder shall not be entitled to recover more than the amount set forth in the
Project Information Section of this Agreement for the Cost of General Conditions (such
amount, the “Lump Sum General Conditions Cost”). If, as a result of any Change Order(s) or
Change Directive(s): (i) the Project durations extends 30 days or more beyond the Substantial
Completion Date; and (ii) the Design-Builder can demonstrate to the satisfaction of the
Department that such additional Costs of General Conditions are reasonable and not due to any
fault of the Design-Builder, its Subcontractors, material men , consultants or anyone making
claims thereunder, the Design-Builder may request a Change Order to adjust the Lump Sum
General Conditions Cost. To the extent the Design-Builder incurs Costs of General Conditions
in excess of the Lump Sum General Conditions Cost, the Design-Builder shall not be entitled
to reimbursement for such amounts unless the Department authorizes, in writing, 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.

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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 Columbia, 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
the schedule of values Exhibit Z. 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.
The 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 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, if 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-Builder to develop a GMP that meets
the programmatic requirements set forth in Exhibit A 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 punch-list 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 punch-list 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

Section 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:

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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, 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. Incorporated and unincorporated materials as permitted under
Section 9.1.
Section 8.7.5 Direct Cost of the Work do es not, however, include home office
overhead, field supervision, general conditions, or the 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 Subcontractors 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-Builder 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-Builder 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

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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 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,
Subcontractors, 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, subcontractors 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: (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; (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

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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, the Cost of the Work does not include any of the following:
a) A ny 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 subcontractors or
suppliers at all tiers, negligent or otherwise.
g) Costs dues to breach of Contract by the Design-Builder or its subcontractors 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
subcontractors 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 Depart ment, and the Design-Builder shall
make provisions so that such amounts can be secured.
Section 9.4.2 Amounts 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
Department, its representatives, and the Department’s accountants shall be afforded access to

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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.
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 cost element is 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 -Build 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 general
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 Subcontractors 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 of 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 Project Documents Required with Application for Payment.
Each Application for Payment shall be accompanied by the Design-Builder’s job cost
ledgers in a form satisfactory to the Department, the Subcontractors’ and Suppliers’
Applications for Payment on AIA documents G702 and G703 or other form acceptable to the
Department, and such other supporting Project documentation as the Department may
reasonably request. Each Application for Payment shall include detailed Project
documentation of costs as a condition to approving progress payments, but the Design-Builder
shall nevertheless maintain complete documentation of the costs. An executed Release of
Liens and Claims in the format required by the Contracting Officer must accompany each
Application for Payment.

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Section 10.4 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
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 sha ll 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 10.5 Design-Builder’s Certification.
Each Application for Payment shall be accompanied by the Design-Builder's signed
certification that:
Section 10.5.1. all amounts paid to the Design-Builder on the previous Application for
Payment that were attributable to Subcontractor Work or to materials or equipment
being supplied by any supplier have been paid over to the appropriate Subcontractors
and suppliers;
Section 10.5.2. that all amounts currently sought for Subcontractor Work or supply of
materials or equipment are currently due and owing to the Subcontractors and material
or equipment suppliers;
Section 10.5.3. 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 10.5.4. 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 10.5.5. 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 mechanic’s lien and all other claims, in a form substantially similar to Exhibit K for the
Design-Builder and all Subcontractors 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 Subcontractors and material 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 submitting 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,

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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
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 acceptable 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 Subcontractors or suppliers
promptly or has made false or inaccurate certifications that payments to Subcontractors
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

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the GMP would not be adequate to cover actual or liquidated damages arising from the
anticipated delay; or
Section 10.9.8 the Department has reasonable evidence that the Work cannot be
completed for the unpaid balance of the GMP; or
Section 10.9.9 the Design-Builder is otherwise in substantial breach of this Agreement
including, without limitation, failures to comply with LSDBE Utilization requirements
or;
Section 10.9.10 the Application for Payment is incomplete, unsubstantiated, and/or
does not contain sufficient documentation for evaluation by the Contracting Officer.
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-
Builder 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:

Section 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

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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
that 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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10 Article 11 - INSURANCE
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

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coverage shall have limits of liability of not less than $1,000,000 each occurrence, 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 it’s 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 prope rty damage, including loss of use thereof. Such policy or policies of
automobile liability ins urance shall be written on an "occurrence" (as opposed to a
"claims made") basis.

Auto 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, i nclude Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Business Auto, Motor Carrier and Truckers (or
it’s 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

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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.

The 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 Insurance 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 $ 10,000,000 per occurrence and $10,000,000 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 maintained by The Government of the District of Columbia and the “other

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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 3 rd party fidelity to cover the dishonest acts of Contractors , 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. Employment Practices Liability - The Contractor shall provide evidence satisfactory to
the CO with respect to the operations performed to cover the defense of claims arising
from employment related wrongful acts including but not limited to: Discrimination,
Sexual Harassment, Wrongful Termination, Workplace Torts, "Bullying" in "any
location" and "by any means," including the Internet , whether between employees of
contractor or against third parties. Employment Practices Liability coverage must
specifically state Third Party Liability coverage is included. Contractor will indemnify
and defend The Government of the District of Columbia should it be named co-
defendant or be subject to or party of any claim. Coverage shall also extend to
Temporary Help Firms and Independent Contractors hired by Contractor. The policy
shall provide limits of not less than $1,000,000 for each wrongful act and $2,000,000
annual aggregate for each wrongful act.

10. Installation-Floater Insurance - For projects not involving structur al 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

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located at the project site, at temporary locations, or in transit; deductibles will be the
sole responsibility of the contractor.

11. 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 exclusions 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.

Construction Projects Controlled by the District

For construction projects controlled by the District, the District will procure the
following policies with the District listed as the first named insured. Since the District
will control the placement of the policies, the District should not contractually bind
itself to secure coverage broader than the minimum that satisfy the interests of the
Contractor.

Builders Risk – The District shall purchase and maintain, in a company authorized
to do business in the jurisdiction in which the project is located, builders risk insurance,
written on an “all risk”, special causes of loss or equivalent form. Builders risk coverage
will include boiler and machinery / equipment breakdown, earthquake and flood perils.
Building ordnance and terrorism coverage will be included.

The deductible shall not exceed $25,000 except for earthquake, flood, windstorm,
water damage or other perils at the discretion of the District and as available in the
insurance industry.

The project limit shall equal the replacement value of the structure, including
coverage for property in transit and stored off premises.

At the discretion of the District, builders risk coverage will extend to soft costs
and delayed completion.

Builders risk insurance shall include the interests of The Government of the
District of Columbia, the Contractor, Subcontractors and Sub – subcontractors in the
project.

C. SUBCONTRACTOR 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

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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 i nsurance 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

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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.

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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 th e Department, the
Design-Builder shall require all Subcontractors 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 subcontractors’ bonds must
include a dual obligee rider, naming the Design-Builder and the Department as dual obligees.
If the Guaranteed Maximum Price is 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 oblige e 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.

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Article 13 - ECONOMIC INCLUSION REQUIREMENTS
Section 13.1 LSDBE Utilization.
If the Design-Builder 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

Section 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 small business
enterprises (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
di
sadvantaged business enterprise shall not be required to comply with the provisions
of Sections 13.2.1 and 13.2.2.
Section 13.2.4 Except as provided in Sections 13.2.1 and 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 proposal 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.

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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
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

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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 The 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 Title 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

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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 percent age 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 13.9.13 The Design -Builder shall comply with applicable laws,
regulations and special requirements of the Contract Documents regarding equal
employment opportunity and affirmative action programs. In accordance with the
District of Columbia Administrative Issuance System, Mayor’s Order 85-85 dated June
10, 1985, the forms for completion of the Equal Employment Opportunity Information
Report are incorporated here in as Exhibit P. A contract award cannot be made to any
contractor that has not satisfied the equal employment requirements.

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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 Subcontractors 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 Design-Builder and all member firms and Subcontractors 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 the 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 Subcontractors; and (iii) providing the information collected
from its Subcontractors in the reports required to be submitted by the Design-Builder
pursuant to Section 9.3.
Section 13.10.5. Reserved
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, as amended (codified at D.C.
Official Code §§ 2-220.01 et seq.) and its implementing regulations Exhibit Q.
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 subcontractors 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 selec ted Design -Builder firms shall be liable for any
subcontractor non-compliance. Thirty-five percent (35%) of all apprentice hours shall
be worked by District residents.
Section 13.11 WAY TO WORK AMENDMENT ACT OF 2006
Section 13.11.1. Except 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 Subcontractors 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.

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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 The 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;

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(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 term s 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 Reserved

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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 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.

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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, Subcontractors, Sub-
subcontractors, 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 sole 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, subcontractors, 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;

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2. That the District determines are not mined, produced, or manufactured in the
United 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 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 and 29 CFR 5.5 Davis Bacon Provision.
The Design-Builder 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 Davis Bacon Provision Exhibit G2. The wage
rates applicable to this Project are attached as Exhibit G1 and Exhibit G2. The Design-Builder
further agrees that it and all of its subcontractors 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:

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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 Subcontractors

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 non-payment.

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

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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 Prime Contractor or a subcontractor to undertake any work that is determined to be
beyond the original scope of the Prime Contractor'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 a dditional
work.

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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 su ch general direction of the CO, or the duly

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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
Subcontractors or material suppliers shall make any press release or similar media release
related to the Project unless such press release has 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 Joseph Khoury
and Chief Procurement Officer Principal/EVP of Preconstruction
Department of General Services MCN Build, Inc.
3924 Minnesota Avenue, NE, 5th Floor 1214 28 Street NW
Washington, DC 20019 Washinton, DC 20007

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.

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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 right s 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 prov isions 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 cha rges 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

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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 Depart ment 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 Subcontractors 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 respec t 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 15.25.1 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)

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which shall be not less than ten times the costs incurred by the Design-Builder
in providing any such gratuities.

Section 15.25.2 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
contracts 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 15.26 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 t he 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 15.27 Non-Discrimination in Employment Provisions.

15.27.1 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:

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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. Unless 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. T he Design -Builder 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 15.27.3.
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. T he Design -Builder 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
15.27.1, and to require under terms of any Subcontractor agreement
each Subcontractor to permit access of the Subcontractors, books,
records, and accounts for such purposes.
7. T he Design -Builder shall include in every subcontract this Section
15.27.1 so that such provisions shall be binding upon each subcontractor
or vendor.
8. The Design -Builder 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,

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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 15.27.2 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 con ditions, or breastfeeding pursuant to the PPWF Act to:

1. New employees at the commencement of employment;
2. Existing employees; and

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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.

15.27.3 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 15.28 ASSIGNMENT OF CONTRACT PAYMENTS

a. Subject to this Section 15.28, 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 invoice
to (name and address of assignee).”

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Section 15.29 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 15.30 NONPROFIT FAIR COMPENSATION ACT OF 2020, D.C. Code § 2 -
222.01 et seq.
Section 15.30.1 Nonprofit organizations, as defined in the Act, shall include in their
rates the indirect costs incurred in the provision of goods or performance of services
under this contract pursuant to the nonprofit organization's unexpired Negotiated
Indirect Cost Rate Agreement (NICRA). If a nonprofit organization does not have an
unexpired NICRA, the nonprofit organization m ay elect to instead include in its rates
its indirect costs:
(1) As calculated using a de minimis rate of 10% of all direct costs under this
contract;
(2) By negotiating a new percentage indirect cost rate with the awarding agency;
(3) As calculated with the same percentage indirect cost rate as the nonprofit
organization negotiated with any District agency within the past 2 years;
however, a nonprofit organization may request to renegotiate indirect costs rates
in accordance with Section 15.30.2; or
(4) 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 15.30.2 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 15.30.3 The Contractor shall pay its subcontractors which are nonprofit
organizations the same indirect cost rates as the nonprofit organization subcontractors
would have received as a prime contractor.

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Section 15.31 CAMPAIGN FINANCE REFORM ACT
Prior to the execution of this Contract, the Design-Builder shall complete and submit to the
Department a completed Campaign Finance Reform Act Self -Certification Form, Exhibit X ,
pursuant to D.C. Official Code § 1-1161.01.
Section 15. 32 DGS Close Out Manual
Deliverables shall include those outlined in Exhibit T.

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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 Design-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, Subcontractors 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.

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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 16.5 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.

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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.

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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
Guaranteed Maximum Price 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-Builder 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
Guaranteed Maximum Price 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 Guaranteed Maximum Price 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
Guaranteed Maximum Price shall be limited to increased Cost of the Work due to the
Change Directive. The Desi gn-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 Guaranteed
Maximum Price that is justified by the Change Directive. If the Department and the

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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 arties 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.

Section 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 Guaranteed
Maximum Price 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 Guaranteed Maximum Price arising from the
Change Event.

Section 18.5 Detailed 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 Guaranteed Maximum
Price as a result of the Change Event. The Change Request shall include the same information
as described in Section 18.3 with respect to any Agreement changes the Design-Builder seeks
due to the Change Event, and the amount of any requested a djustment to the Guaranteed
Maximum Price 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 Guaranteed Maximum Price
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
Guaranteed Maximum Price 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.

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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 me an 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 Subcontractors 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 Subcontractors;

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2. To the extent permitted by Section 18.8, the Design-Builder shall be entitled to an
increase in its Design -Build Fee at a maximum rate of 2% on work performed by
Subcontractors. Such markup shall cover the same cost elements that were included in
the Design-Build Fee;

3. Direct 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.

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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 Services and Construction
Contracts).

Peter Henry Lyonga
Contracting Officer
6/26/2024