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MURIEL BOWSER
MAYOR
June 11, 2025
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. 2 to Contract No. DCAM-24-CS-RFP-0006 with Gilbane Building
Company ("Gilbane"), increasing the not-to-exceed amount by $16,278,961, from $11,504,202 to
$27,783,163. The increase in the not-to-exceed amount is an early release of funds for an additional
initial phase of the modernization of Burroughs Elementary School.
As part of the additional initial phase of the project, Gil bane will provide the preliminary scope of
work for the design-build services for the project, including concrete, rough carpentry, signage,
low voltage, modular structures, landscape, earthwork, fencing, site utilities, and hardscape for the
modular swing site. Gilbane will also provide abatement, demolition, mass timber, skylight,
geothermal, and electrical services, while the District and Gilbane finalize the full scope and the
guaranteed maximum price for the project.
My administration is available to discuss any questions you may have regarding the proposed
contract. 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.
1
Contracts & 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. 2 to Design-Build Agreement for Burroughs Elementary School Modernization
& Modular Campus Swing Site
(A) Contract Number: DCAM-24-CS-RFP-0006
Modification No. 2
Proposed Contractor: Gilbane Building Company
Proposed Increased Amount $16,278,961
Via Modification No. 2:
Total Contract’s Not-To-Exceed (“NTE”)
Amount: $27,783,163
Unit and Method of Compensation: Progress payments on a monthly basis
Term of Contract: April 22, 2024 (date of execution of the
Letter Contract by the Department of
General Services (the “Department” or
“DGS”)) through July 15, 2025
(“Substantial Completion Date of the
Modular Campus”) and July 15, 2027
(“Substantial Completion Date of the
Modernization”) (collectively, the
“Substantial Completion Dates”); with an
Administrative Term of March 15, 2028.
Type of Contract: Cost Plus Fixed Fee with a Guaranteed
Maximum Price (“GMP”)
Source Selection Method: Competitive Request for Proposals
2
(B) For a contract containing option periods, the contract amount for the base period and for
each option period. If the contract amount for one or more of the option periods differs
from the amount for the base period, provide an explanation of the reason for the difference:
Not applicable.
(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 and construction services for
Burroughs ES, which is an approximately 75,000 square-foot school facility, and the design and
construction of a Modular Campus on Burroughs Field. The Design -Builder shall design and
construct a combination of renovation and new construction to increase the existing footprint to
accommodate the square footage required in the educational specifications to bring it in line with
the District of Columbia Public Schools (“DCPS”) requirements.
The Project also includes the full design and construction of temporary school facilities. The
location will need to have approximately forty (40) classroom -sized spaces, one (1) large tent
membrane structure for gym/dining, a modular kitchen with dedicated restrooms, one (1) health
suite space with ensuite restroom, group restrooms, two (2) playgrounds, and covered
Americans with Disabilities Act (“ADA”) access across all temporary facilities. Each facility
must also provide parking for the school staff, include access to delivery and garbage/recycling
trucks, and have a designated pick-up/drop-off location for the school population.
The underlying contract was deemed approved by the Council on July 7, 2024, as CA25-912, with
an initial NTE amount of $11,504,202 ($995,000 Letter Contract + $10,509,202 Early Start
Agreement #1). Modification No. 1 was a $0 modification to revise key personnel.
The Department now seeks Council approval to execute proposed Modification No. 2. If
approved, Modification No. 2 will increase the Contract’s NTE amount by $16,278,961, from
$11,504,202 to $27,783,163. Modification No. 2 will authorize the release of necessary Project
funding for the completion of Modular Campus, the release of long lead items and elements such
as switchgear and generator for Modernization phase, the remaining design fee for Modernization
phase, funding of allowances, and enabling abatement and demolition work, while the Department
and Contractor finalize the GMP. 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 (CA25-912) on July 7, 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.
3
(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. The list of projects is provided
as Exhibit A. The Contractor is not currently seeking any additional projects with the District.
(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 Arlington, Virginia, and is not a certified business enterprise (“CBE”).
The Contractor is specialized in construction and facilities management, real estate development,
property management, and consulting services. The Contractor has successfully completed
multiple school modernization projects for DGS including:
1. John Lewis Elementary School in Washington, DC;
2. Roosevelt Senior High School in Washington, DC;
3. Ron Brown College Preparatory High School in Washington, DC;
4. Whitlock Elementary School in Washington, DC;
5. Marie Reed Elementary School & Community Learning Center in Washington, DC; and
6. Van Ness Elementary School in Washington, DC.
The Contractor possesses the financial stability to successfully perform the Project and has
provided a staffing plan for the Project, which has been reviewed and approved by the
Department. The Contractor has been determined responsible in accordance with 27 DCMR §
4706.1.
(H) A summary of the subcontracting plan required under section 2346 of the Small, Local, and
Disadvantaged Business Enterprise Development and Assistance Act of 2005, as amended,
D.C. Official Code § 2- 218.01 et seq . (“Act”), including a certification that the
subcontracting plan meets the minimum requirements of the Act and the dollar volume of
the portion of the contract to be subcontracted, expressed both in total dollars and as a
percentage of the total contract amount:
The Contractor is not a certified business enterprise . Pursuant to D.C. Official Code § 2 -218.46
(d-1), the Contractor shall submit a detailed subcontracting plan to DSLBD that meets the
requirements of D.C. Official Code § 2- 218.46(d), before entering into a GMP. The preliminary
subcontracting plan, which will be finalized at the time of GMP, is as follows:
Contract’s NTE Dollar Value: $27,783,163
Subcontracting Requirement %: 35%
Subcontracting Plan Required Dollar Value: $9,724,107.05
Subcontracting Plan Actual Dollar Value: $7,914,936
4
(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 other services necessary to substantially complete the Modular Campus no later than July
15, 2025, and the Modernization no later than July 15, 2027. In general, the Contractor must
perform the requirements contained in the Contract and meet or exceed the performance standards
therein. The Contractor is subject to liquidated damages of $2,500 per day of delay for failure to
timely achieve substantial com pletion of the Project. The Contract also provides a disincentive
fee of $25,000 for the replacement of key personnel without the Department’s prior approval and
not as a penalty, to reimburse the Department for its administrative costs arising from the
Contractor’s failure to provide the key personnel.
(J) The amount and date of any expenditure of funds by the District pursuant to the contract
prior to its submission to the Council for approval:
Not applicable.
(K) A certification that the proposed modification to the contract is within the appropriated
budget authority for the agency for the fiscal year and is consistent with the financial plan
and budget adopted in accordance with D.C. Official Code §§ 47-392.01 and 47-392.02:
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. The 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 M odification No. 2 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 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.
5
(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.:
The Contractor is not a CBE.
(P) Other aspects of the proposed contract that the Chief Procurement Officer considers
significant:
None.
(Q) A statement indicating whether the proposed contractor is currently debarred from
providing services or goods to the District or federal government, the dates of the
debarment, and the reasons for debarment:
The Contractor is not debarred from providing services to the Government of the District of
Columbia or the Federal Government according to the Office of Contracts & Procurement’s
Excluded Parties List and the Federal Government’s Excluded Parties List.
(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):
None.
(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
List of Contracts that the Gilbane Building Company currently holds with the District Agencies:
No Contract No. Contract Description Value
1 DCAM23CSRFP0020 Drew Elementary School Modernization $995,000
2 DCAM16CS0142 McMillan Sand Filtration Site Life Safety and
Historic Stabilization and Restoration
$91,492,842
3 DCAM23CSRFP0030 CMAR Services for the Construction of New
D.C. Archives
$990,000
4 DCAM24CSRFP0006 Burroughs ES Modernization and Modular
Campus Swing Site
$11,504,202
List of Contracts that the Gilbane Building Company is currently seeking with the District
Agencies:
No Contract No. Contract Description Value
NA NA NA
1101 4th Street, SW
Washington, DC 20024
Date of Notice: May 15, 2025 L0014207654Notice Number:
FEIN: **-***5530
Case ID: 18592638
Government of the District of Columbia
Office of the Chief Financial Officer
Office of Tax and Revenue
GILBANE BUILDING COMPANY
7 JACKSON WALKWAY
PROVIDENCE RI 02903-3638
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
C
As reported in the Clea
reported in the Cle
iability with the District o
ility with the Di
vices. As of the date abov
ices. As of the date abov
ertificate of Clean Hands
ertificate of Clean Hand
TITLE 47. TAXATION, L
TLE 47. TAXATION,
CHAP
CHAP
PTER II. CLEAN HAND
PTER II. CLEAN HAN
D.C. CO
D.C. CO
PROHIBITION AGAINS
ROHIBITION AGAIN
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Contracts & Procurement
Memorandum
To: Delano Hunter
Director
From: Antoinette Hudson - Beckham
Agency Fiscal Officer
Reference: Proposed Modification No. 2 to Contract No. (DCAM-24-CS-RFP-0006)
Design-Build Services for Burroughs Elementary School Modernization and
Modular Campus Swing Site
Date: June 3, 2025
Subject: Fiscal Sufficiency Review
In my capacity as the Agency Fiscal Officer of the Department of General Services (the “Department”),
I hereby certify that the Modification No.2 to Design-Build Agreement for Design Build Services for
Burroughs Elementary Modernization and Modular Campus Swing Site (DCAM-24-CS-RFP-0006),
with Gilbane Building Company (the “Contractor”) in the amount of $27,783,163.00, is consistent with
the Department’s current budget and adequate funds are available in the budget for the expenditure.
Per the Department’s Contracts & Procurement (“C&P”) team, the underlying Contract was deemed
approved by the Council on July 7, 2024, as CA25-0912, with an initial Not-to-Exceed (“NTE”) amount
of $11,504,202.00 ($995,000.00 Letter Contract amount + $10,509,202.00 Early Start Agreement No.1
amount).
Per C&P, if approved, the proposed Modification No.2, in the amount of $16,278,961.00, will increase
the Contract’s NTE amount to $27,783,163.00 ($16,278,961.00 + $11,504,202.00).
While funding in the amount of $27,783,163.00 is being approved for capital-eligible items only, there
is an ineligible amount of $715,379.00 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 $27,067,784.00.00 in the District
of Columbia Public Schools (DCPS – Owner AGY) cumulative capital budget authority balance.
There is $24,231,055.00 in the current approved allotment budget, and an additional $2,836,729.00 is
pending the FY202 6 capital budget load for the Burroughs ES capital project – 100247. Per the
approved FY202 5 – FY2030 CIP, Burroughs ES capital project will receive $ 35,466,615.00 in
FY2026.
There is also $715,379.00 in the current DCPS FY25 approved reverse capital paygo to operating
funds (DGS operating budget)
The DIFS/PASS information is listed below/attached.
Project Number/ Name
Subtask
AY
Fund
Detail
Imp.
Agency
Owner
Agency
RK/PO Amount Comments
100247 -
AM0.TB237C.BURROU
GHS ES
MODERNIZATION/RE
NOVATION
04.01 -
TB23D.95101.BURROUGH
S ES
MODERNIZATION/RENO
VATION.CAP PROJ -
PHYSICAL PLANT (GA0)
N/A 3030300 AM0 GA0 PO706851 $995,000.00 Letter Contract
100318 -
AM0.YY1SPC.CENTR
ALIZED SWING
SPACE
04.02 -
AM0.YY1SPC.CENTRALI
ZED SWING SPACE
N/A 3030300 AM0 GA0 PO712578 $10,509,202.00 ESA #1
100247 -
AM0.TB237C.BURROU
GHS ES
MODERNIZATION/RE
NOVATION
04.01 -
TB23D.95101.BURROUGH
S ES
MODERNIZATION/RENO
VATION.CAP PROJ -
PHYSICAL PLANT (GA0)
N/A 3030300 AM0 GA0 RK305188 $5,991,623.00 Proposed Mod #2
FY25
Modernization Cap
Part of
$16,278,961.00
100318 -
AM0.YY1SPC.CENTR
ALIZED SWING
SPACE
04.02 -
AM0.YY1SPC.CENTRALI
ZED SWING SPACE
N/A 3030300 AM0 GA0 RK305192 $6,735,230.00 Proposed Mod #2
FY25 Modular
Campus Part of
$16,278,961.00
201552 -
CCD Reverse Capital
Paygo to Operating
Funding and
Contingency Cash
Reserve
25.08 -
FY25 Reverse Capital Paygo
to Operating Funds - DCPS
Centralized Swing Space
Projects
N/A 1010001 AM0 AM0 RK305193 $715,379.00 Proposed Mod #2
FY25
Ineligible/Operatin
g Part of
$16,278,961.00
100247 -
AM0.TB237C.BURROU
GHS ES
MODERNIZATION/RE
NOVATION
04.01 -
TB23D.95101.BURROUGH
S ES
MODERNIZATION/RENO
VATION.CAP PROJ -
PHYSICAL PLANT (GA0)
N/A 3030300 AM0 GA0 RK305189 $2,836,729.00 Proposed Mod #2
FY26
Modernization Cap
Part of
$16,278,961.00
Total $27,783,163.00
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Services
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Contracts & Procurement
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
Proposed Modification No. 2 to the Design- Build Services Agreement for the
Burroughs Elementary School Modernization and Modular Campus Swing Site
Contract Number: DCAM-24-CS-RFP-0006
Contractor: Gilbane Building Company
DATE: June 3, 2025
This is to certify that this Office has reviewed the above -referenced proposed Modification
No. 2 and has found it to be legally sufficient, subject to submission of: (i) any required
materials and Council 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
X
tswartzwelder@gilbaneco.com
1100 North Glebe Road | Suite 1000
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
X
10A. Modification of Contract/Order No.
10B. Dated (See Item 13)
August 27, 2024
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
A. This change order is issued pursuant to: (Specify Authority)
1
date, etc.) set forth in item 14.
is not,
B. The above numbered contract/order is modified to reflect the administrative changes (such as changes in paying office, appropriation
C. This supplemental agreement is entered into pursuant to authority of:
D. Other (Specify type of modification and authority)
1. Contract Number
MODIFICATION OF CONTRACT
Page of Pages
DCAM-24-CS-RFP-0006 1 1
5. Caption
copies of the amendment: (b) By acknowledging receipt of this
Modification No.1 See Block 16C
Design Build Service Burroughs
Elementary School Modernization
and Modular Campus Swing Site
7. Administered By (If other than line 6)
2. Modification Number 3. Effective Date
Vice President, DC Business Leader
4. Requisition/Purchase Request No.
3924 Minnesota Avenue NE, 5th Floor
Department of General Services
Washington, DC 20019
Contracts and Procurement Division
6. Issued By:
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
Tyler Swartzwelder
9B. Dated (See Item 11)
Gilbane Building Company
DCAM-24-CS-RFP-0006
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers is extended. is not extended.
following methods: (a) By completing Items 8 and 15, and returning
Arlington, Virginia 22201
amendment number. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS
PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change
solicitation and this amendment, and is received prior to the opening hour and date specified.
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
12. Accounting and Appropriation Data (If Required)
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
27 DCMR Sections 4728 and Contract No. DCAM-24-CS-RFP 0006
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
1. Change in Key Personnel. Design Builder's Architect Engineering Team (Quinn-Evans) Modernization Project Architect, David Leestma is hereby
replaced by Katrina McRainey (Modernization Project Architect), per the Design-Builder's request (Exhibit A) and the Department's approval.
(Signature of person authorized to sign) (Signature of Contracting Officer)
15B. Gilbane Building Company
16A. Name of Contracting Officer
2. Release. It is mutually agreed that in exchange for this Modification and other consideration, the Contractor hereby releases, waives, settles and hold the
Department harmless from any and all actual or potential claims or demands for delays, disruptions, additional Work, additional time, additional cost,
contract extensions, compensations or liability under any theory, whether known or unknown, that the Contractor may have now or in the future against the
Department arising from or out of, as a consequence or result of, relating to or in any manner connected with this Modification, the above referenced
project, and the Contract Work.
15C. Date Signed 16B. District of Columbia 16C. Date Signed
Peter Henry Lyonga
3. Terms and Conditions. ALL OTHER TERMS AND CONDITIONS OF THE CONTRACT REMAIN UNCHANGED.
Contract No. DCAM-24-CS-RFP-0006, for Design Build Services for Burroughs Elementary School Modernization and Modular Campus Swing Site, is
hereby modified as follows:
15A. Name and Title of Signer (Type or print)
Contractor is required to sign this document and return copy to the issuing office.E. IMPORTANT:
X
Tyler Swartzwelder - Sr. Business Leader
5/15/2025Tyler Swartzwelder
Digitally signed by Tyler Swartzwelder
DN: C=US, E=tswartzwelder@gilbaneco.com,
O=Gilbane Building Company, OU=DC Business Unit,
CN=Tyler Swartzwelder
Date: 2025.05.15 13:15:58-04'00'
5/15/2025
(Continuation)
Contract Number Modification No. Page of Pages
DCAM-24-CS-RFP-0006 Modification No.1 2 of 2
4. Contract Recap:
Letter Contract Executed: 4/22/2024 $995,000.00
Contract (ESA 1) Executed:8/27/2024 $10,509,202.00
Mod No. 1 (Key Personnel Change)
Total Price $11,504,202.00
(;+,%,7$
5HTXHVWIRU&KDQJHLQ.H\3HUVRQQHO
>(;+,%,7:,//$33($5217+()2//2:,1*3$*(@
prt24th,2025 cilbane
Mr.PatrickMoloney
DGSSeniorProjectManage
DepartmentofGeneralServices
3924MinnesotaAve,NE|5**Floor
Washington,DC20019
RE:KeyPersonnelChange
DearPatrick:
InaccordancewithSection5.7ofthecontract,theBurroughsElementaryDesign-BuildTeamwillbe
addingKatrinaMcRaineytoreplaceDavidLeestmaastheQuinn-EvansModernizationProjectArchitect,
asDavidLeestmaisnolongerwiththeQuinn-Evansfirm.
Katrinahasover10yearsofexperienceasanArchitectandworkedonmultipleschoolprojects
includingDGS/DCPSprojects.
Sincerely,
UCT LeGilbaneBuildingCompany
Derek DiPiazza
SeniorProjectExecutive
X
9B. Dated (See Item 11)
August 27, 2024
X
10A. Modification of Contract/Task Order No. 1100 North Glebe Road | Suite 1000
Arlington, Virginia 22201
tswartzwelder@gilbaneco.com 10B. Dated (See Item 13)
Tyler Swartzwelder
9A. Amendment of Solicitation No.
is required to sign this document and return
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers is extended. is not extended.
following methods: (a) By completing Items 8 and 15, and returning
DCAM-24-CS-RFP-0006
1 copies of the amendment: (b) By acknowledging receipt of this
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
amendment number. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS
PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
E. IMPORTANT:
X D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and Contract DCAM-24-CS-RFP-0006
1
B. The above numbered contract/order is modified to reflect the administrative changes (such as changes in paying office, appropriation
date, etc.) set forth in item 14.
C. This supplemental agreement is entered into pursuant to authority of:
A. This change order is issued pursuant to: (Specify Authority)
Vice President, DC Business Leader
Gilbane Building Company
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code)
Contractor
(Signature of person authorized to sign) (Signature of Contracting Officer)
solicitation and this amendment, and is received prior to the opening hour and date specified.
12. Accounting and Appropriation Data (If Required)
15B. Gilbane Building Company 15C. Date Signed 16B. District of Columbia 16C. Date Signed
15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer
3. Release: It is mutually agreed that in exchange for this Modification and other considerations, the Contractor hereby releases,
waives, settles, and holds the Department harmless from any and all actual or potential claims or demands for delays, disruptions,
additional work, additional time, additional cost, contract extensions, compensations or liability under any theory, whether known or
unknown, that the Contractor may have now or in the future against the Department arising from or out of, as a consequence or
result of, relating to or in any manner connected with this Modification, the above-referenced Project, and the Contract Work.
Peter Henry Lyonga
4. Terms & Conditions: All other Terms and Conditions remain unchanged.
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
1. Scope of Work. The Contractor's scope of work remains unchanged. This Modification No. 2 is a second Early Start Agreement
that increases the Not-to-Exceed ("NTE") amount to release additional Project funding. Modification No. 2 is for the release of funds
necessary for several construction services for the Project.
Contract No. DCAM-24-CS-RFP-0006 to provide Design-Build Services for Burroughs Elementary School and Modular Campus
Swing Site is hereby modified as follows:
copy to the issuing office.is not,
Washington, DC 20019
2. Not-to-Exceed Amount. The Contract's NTE amount is hereby increased by $16,278,961.00, from $11,504,202.00 to
$27,783,163.00. The amount of $27,783,163.00 includes the previously released contract amount of $11,504,202.00 as further
described in Exhibit A. Pre-authorization by the Department in writing is required to use the Owner's Allowances.
While funding in the amount of $27,783,163.00 is being certified for capital-eligible items only, there is an ineligible amount of
$715,379.00 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. Provided, however, there is $24,231,055.00 in the current approved allotment budget, and an additional $2,836,729.00 is
pending the FY2026 capital budget load for the Burroughs ES.
Contracts and Procurement Division
3924 Minnesota Avenue NE, 5th Floor
1. Contract Number
MODIFICATION OF CONTRACT Page of Pages
DCAM-24-CS-RFP-0006 1 2
7. Administered By (If other than line 6)
Department of General Services
6. Issued By:
3. Effective Date 4. Requisition/Purchase Request No. 5. Caption
Modification No. 2 See Block 16C
PR-015003
RK305188 RK305189
RK305192 RK305193
Design-Build Services for Burroughs
ES Modernization and Modular
Campus Swing Site
2. Modification Number
(Continuation)
Contract Number Page of Pages
DCAM-24-CS-RFP-0006 2 of 2
5. Contract Recap:
NTP Letter Contract Executed: 04/22/2024 995,000.00$
Contract (ESA 1) Executed:8/27/2024 10,509,202.00$
Mod 1 (Key Personnel Change) Executed: 5/15/2025 ─
Mod 2 (ESA2) 16,278,961.00$
Total Price 27,783,163.00$
Modification No.
Modification No. 2
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Contracts & Procurement
EXHIBIT A
ESA 2 Summary
[EXHIBIT WILL APPEAR ON THE FOLLOWING PAGE]
Cost Summary
DGS Burroughs ESA 2
Washington, DC
Bid Package No. Bid Package Description Recommended Contractor Letter Contract ESA #1
Modular
ESA#2
Modular
ESA #2
Modernization
ESA #2
Total
Total Contract
Value CBE (Value) CBE (%) BID 1 BID 2 BID 3 BID 4
MODULAR CAMPUS
01A GENERAL REQUIREMENTS Gilbane Allowance $75,000 $100,000 $100,000
$175,000
03A CONCRETE LA Howard $1,297,600 $1,297,600 $1,297,600 $1,297,600 $1,487,000 $1,297,600 $1,710,417
06A ROUGH CARPENTRY WKM $726,729 $726,729 $726,729 $726,729 $1,450,883 $770,000 $726,729
10A SIGNAGE Intelligent Hardware, Inc. $82,400 $82,400 $82,400 $82,400
13A MODULAR STRUCTURES Nadler / US Mobile Kitchens $4,862,381 $719,225 $719,225 $5,581,606 $830,000 $1,831,000 $719,225
22A PLUMBING Pro-Air $993,851 $0 $993,851 $993,851 ESA 1 ESA 1 ESA 1
26A ELECTRICAL Nationwide Electrical Services $2,775,871 $0 $2,775,871 $2,775,871 ESA 1 ESA 1 ESA 1
27A LOW VOLTAGE Vision Security $557,275 $557,275 $557,275 $555,275 $635,000 $557,275 $775,145
31A EARTHWORK JJ Prime $159,410 $280,590 $280,590 $440,000 $440,000 $440,000 $461,007 $467,510
32A LANDSCAPE Ruppert $98,125 $98,125 $98,125 $98,125
32B FENCING Century Fence $373,730 $373,730 $373,730 $417,570 $373,730 NO RESPONSE NO RESPONSE
32C HARDSCAPE LA Howard $75,000 $75,000 $75,000 $75,000 $206,728 $253,000 $75,000
33A SITE UTILITIES JJ Prime $695,000 $695,000 $695,000 $695,000 $695,000 $791,140 $858,000
MODERNIZATION
01A GENERAL REQUIREMENTS Gilbane Estimate $250,000 $250,000 $250,000
02A ABATEMENT Gilbane Estimate $717,176 $717,176 $717,176
02B DEMOLITION Gilbane Estimate $897,726 $897,726 $897,726
06A MASS TIMBER Quality Building $27,000 $27,000 $27,000 $27,000
08A SKYLIGHT Linel $19,600 $19,600 $19,600 $19,600
22A GEOTHERMAL Allied $43,500 $43,500 $43,500 $43,500
26A ELECTRICAL Gilbane Estimate $1,500,000 $1,500,000 $1,500,000 $1,500,000
$8,866,513 $5,005,674 $3,455,002 $8,460,676 $17,327,189 $9,059,326
General Conditions $455,136 $500,000 $500,000 $955,136
Design Contingency 2.00% $277,444 $277,444 $277,444
Construction Contingency 3.00% $416,166 $416,166 $416,166
Owner Directed Allowance Lump Sum $200,000 $150,000 $150,000 $350,000
Subcontractor Default Insurance 1.30% $117,865 $76,041 $44,915 $120,956 $238,821
Accepted Alternates N/A $0
Preconstruction $143,120 $143,120
Design Fee $669,955 $821,697 $3,115,858 $3,937,555 $4,607,510
Public Space Improvements Allowance $500,000 $500,000 $500,000
Utility Allowance $100,000 $300,000 $300,000 $400,000
Permit Allowance $175,000 $100,000 $75,000 $350,000 $425,000 $700,000
$988,075 $9,839,514 $6,822,022 $8,265,775 $15,087,797 $25,915,386
CCIP 2.90% $304,767 $244,923 $256,022 $500,945 $805,712
Coverage Differential 0.10% $10,509 $8,446 $8,828 $17,274 $27,783
Payment and Performance Bonds 0.696% $6,925 $73,144 $51,856 $61,445 $113,301 $193,370
WKM Fee (DGS/M/P) $100,000 $100,000 $100,000 $100,000
Design-Build Fee 2.75% $281,268 $223,362 $236,282 $459,644 $740,912
$995,000 $10,509,202 $7,450,609 $8,828,352 $16,278,961 $27,783,163 $9,159,326 32.97%
Subtotal - Trade Contractors
Subtotal - Cost of Work
Total ESA 2
1 v. 1/1/2023
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Contracts & Procurement
EXHIBIT B
Capital Eligibility Scrub
[EXHIBIT WILL APPEAR ON THE FOLLOWING PAGE]
Burroughs ES Modular Campus
Capital Financial Eligibility
4/21/2025
Summary 06A - Rough Carpentry 13A - Modular
Structures 12C - FF&E 27A - Low Voltage TOTAL
Capital Eligible 92,181.00$ 698,034.00$ -$ 497,635.00$ 1,287,850.00$
Non-Capital 634,548.00$ 21,191.00$ -$ 59,640.00$ 715,379.00$
Extended Totals 726,729.00$ 719,225.00$ -$ 557,275.00$ 2,003,229.00$
Description Manufacturer Count Unit Price Extended Total Capital Expenditures Non-Capital Expenditures
06A - Rough Carpentry
Elevated Walkway Material 1 350,832.00$ $ 350,832.00 350,832.00$
Rough Carpentry Installation 1 283,716.00$ $ 283,716.00 283,716.00$
Multipurpose Drywall 1 92,181.00$ $ 92,181.00 92,181.00$
06A - Rough Carpentry Total 726,729.00$ 92,181.00$ 634,548.00$
Description Manufacturer Count Unit Price Extended Total Capital Expenditures Non-Capital Expenditures
13A - Modular Structures
Fire Extinguishers
Fire Extinguisher - 10 lb Amerex 10 $ 110.00 $ 1,100.00 1,100.00$
Fire Extinguisher Cabinets Amerex 10 $ 200.00 $ 2,000.00 2,000.00$
Fire Extinguisher - Type K Amerex 1 300.00$ $ 300.00 300.00$
Fire Extinguishers Total 3,400.00$ -$ 3,400.00$
Equipment
Walk-In Cooler Arctic Industries 1 $ 14,531.00 $ 14,531.00 $ 14,531.00
Walk-In Freezer Arctic Industries 1 $ 16,269.00 $ 16,269.00 $ 16,269.00
Reach-In Heated Cabinet Carter-Hoffman 1 $ 5,342.00 $ 5,342.00 $ 5,342.00
Reach-In Refrigerator True 2 $ 4,882.00 $ 9,764.00 $ 9,764.00
Dunnage Rack Metro Shelving 3 $ 815.00 $ 2,445.00 2,445.00$
Shelving Metro Shelving 20 $ 327.00 $ 6,540.00 $ 6,540.00
Pan Rack Cart, Mobile New Age 1 $ 930.00 $ 930.00 930.00$
Utility Cart, Mobile Steril-Sil 2 $ 2,162.00 $ 4,324.00 4,324.00$
Worktable Eagle Group 6 $ 1,791.00 $ 10,746.00 $ 10,746.00
Prep Sink Eagle Group 1 $ 3,111.00 $ 3,111.00 $ 3,111.00
Range/Oven, Electric Garland 1 $ 8,541.00 $ 8,541.00 $ 8,541.00
Convention Steamer, Mobile AccuTemp 1 $ 9,960.00 $ 9,960.00 9,960.00$
Pot Washing Sink Eagle Group 1 $ 3,603.00 $ 3,603.00 $ 3,603.00
Disposer Salvajor 1 $ 4,647.00 $ 4,647.00 $ 4,647.00
Wall Shelf Quantum 3 $ 44.00 $ 132.00 132.00$
Hand Sink Eagle Group 4 892 $ 3,568.00 $ 3,568.00
Plumbing, Electrical and HVAC connections 1 611372 $ 611,372.00 $ 611,372.00
Equipment Total 715,825.00$ 698,034.00$ 17,791.00$
13A - Modular Structures 719,225.00$ 698,034.00$ 21,191.00$
Page 1 of 3
Burroughs ES Modular Campus
Capital Financial Eligibility
4/21/2025
Summary 06A - Rough Carpentry 13A - Modular
Structures 12C - FF&E 27A - Low Voltage TOTAL
Capital Eligible 92,181.00$ 698,034.00$ -$ 497,635.00$ 1,287,850.00$
Non-Capital 634,548.00$ 21,191.00$ -$ 59,640.00$ 715,379.00$
Extended Totals 726,729.00$ 719,225.00$ -$ 557,275.00$ 2,003,229.00$
Description Manufacturer Count Unit Price Extended Total Capital Expenditures Non-Capital Expenditures
Description Manufacturer Count Unit Price Extended Total Capital Expenditures Non-Capital Expenditures
12C - FF&E
NO FF&E INCLUDED $ -
$ -
12C - FF&E Total -$ -$ -$
Description Manufacturer Count Unit Price Extended Total Capital Expenditures Non-Capital Expenditures
27A - Low Voltage
ACS and IDS
12v Battery 4 $97 $ 388.00 388.00$
Access Credentials Cards 150 $9 $ 1,350.00 1,350.00$
ACS Control Panel 1 $26,525 $ 26,525.00 26,525.00$
Card Reader opening 15 $11,537 $ 173,055.00 173,055.00$
Axis I8016-LVE Doorstation 2 $1,494 $ 2,988.00 2,988.00$
Batteries 2 $95 $ 190.00 190.00$
Recessed DPDT Door Position Switch 2 $37 $ 74.00 74.00$
TeleData
MDF & IDF Hardware 1 $10,931 $ 10,931.00 10,931.00$
Fiber 1 $5,100 $ 5,100.00 5,100.00$
Cabling 1 $66,173 $ 66,173.00 66,173.00$
MDF/IDF Installation Total 1 $27,704 $ 27,704.00 27,704.00$
PA's and Clocks
PA Control Unit 1 $22,199 $ 22,199.00 22,199.00$
Cabling 1 $15,664 $ 15,664.00 15,664.00$
Installation Total 1 $15,448 $ 15,448.00 15,448.00$
2x2 Drop-in speaker - Bright White 64 $108 $ 6,912.00 6,912.00$
Master Control 1 $4,280 $ 4,280.00 4,280.00$
Installation Total 1 $6,326 $ 6,326.00 6,326.00$
12" Round Clock (Wireless) 46 $214 $ 9,844.00 9,844.00$
Page 2 of 3
Burroughs ES Modular Campus
Capital Financial Eligibility
4/21/2025
Summary 06A - Rough Carpentry 13A - Modular
Structures 12C - FF&E 27A - Low Voltage TOTAL
Capital Eligible 92,181.00$ 698,034.00$ -$ 497,635.00$ 1,287,850.00$
Non-Capital 634,548.00$ 21,191.00$ -$ 59,640.00$ 715,379.00$
Extended Totals 726,729.00$ 719,225.00$ -$ 557,275.00$ 2,003,229.00$
Description Manufacturer Count Unit Price Extended Total Capital Expenditures Non-Capital Expenditures
CCTV
Recording and matrix server based on Camera specs to achive minimum 60 days recording 1 $41,420 $ 41,420.00 41,420.00$
Fixed & Bolted Enclosure 1 $6,277 $ 6,277.00 6,277.00$
Cabling 1 $13,304 $ 13,304.00 13,304.00$
Installation Total 1 $23,990 $ 23,990.00 23,990.00$
M3085-V 3 $292 $ 876.00 876.00$
M3086-V 1 $360 $ 360.00 360.00$
P3265-V 1 $546 $ 546.00 546.00$
P3265-LVE 1 $731 $ 731.00 731.00$
P4705-PLVE 7 $945 $ 6,615.00 6,615.00$
P3735-PLE 14 $1,462 $ 20,468.00 20,468.00$
V-PTZMOUNT-C 14 $228 $ 3,192.00 3,192.00$
V-PTZMOUNT-W 14 $370 $ 5,180.00 5,180.00$
Smart Boards
Cabling 1 $28,875 $ 28,875.00 28,875.00$
Installation Total 1 $10,290 $ 10,290.00 10,290.00$
27A - Low Voltage Total 557,275.00$ 497,635.00$ 59,640.00$
Grand TOTAL 2,003,229.00$ 1,287,850.00$ 715,379.00$
**Note: The above is based on the current GMP and subcontractor identified in the bid summary. As subcontract agreements are negotiated and executed, the above is subject to change.
Page 3 of 3
Page 1 of 121
DESIGN-BUILD AGREEMENT
FOR
BURROUGHS ELEMENTARY SCHOOL MODERNIZATION & MODULAR
CAMPUS SWING SITE
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
GILBANE BUILDING COMPANY
CONTRACT NUMBER: DCAM-24-CS-RFP-0006
Page 2 of 121
PROJECT INFORMATION
A. PROJECT SUMMARY
1. Project Name:
Design-Build Services for Burroughs
Elementary School Modernization &
Modular Campus Swing Site
2. Project Address: 1820 Monroe Street NE, Washington, DC
20018
3. Agreement Type: Design-Build with Guaranteed Maximum
Price
4. Client Agency: District of Columbia Public Schools
(“DCPS” or “Client Agency”)
5. Design-Builder: GILBANE BUILDING COMPANY
6. Agreement Amounts:
i. Initial NTE: $11,504,202.00
ii. Project Budget:
(Modernization & Modular Campus combined) $81,000,000.00
7. Design-Builder Compensation:
i. Design Fee (including Construction
Administration): $4,607,510.00
ii. Design-Build Fee: $2,227,500.00
a. Base Design-Build Fee:
(60% of Design-Build Fee ) $1,336,500.00
b. At-Risk Design-Build Fee:
(40% of Design-Build Fee) $891,000.00
iii. Lump Sum General Conditions Cost: $4,013,546.00
iv. Allowances:
a. Permit Allowance (including the cost for
Department of Buildings’ (“DOB”)
Velocity Program), $700,000;
b. Public Art Allowance (Modernization
only), $450,000.00;
c. Utility Allowance, $400,000.00;
d. Public Space Improvements Allowance,
$500,000;
e. Six Months Maintenance Allowance,
$300,000.
v. Preconstruction Fee (15% of the
Base Design-Build Fee) $200,475.00
vi. Contingency: To be determined at GMP
Page 3 of 121
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 : April 10, 2025
11.
Substantial Completion Dates:
a) Modular Campus:
b) Modernization:
July 15, 2025
July 15, 2027
12.
Final Completion Dates:
a) Modular Campus:
b) Modernization:
January 16, 2026
January 14, 2028
13. Administrative Term Expiration Date: March 15, 2028
14. Letter Contract (if applicable):
Period of Performance
From April 22, 2024 (date of execution of
the Letter Contract) through October 18,
2024
NTE Amount: $995,000.00
15. GMP Basis Project Documents Design Development Documents
16. Key Personnel Replacement: $25,000.00 per replacement
16. Assumptions and Clarifications Refer to Exhibit W
17. Mentor-Protégé Penalty: (5% of Lump
Sum General Conditions)
$200,677.30
Page 4 of 121
DESIGN-BUILD AGREEMENT
BURROUGHS ELEMENTARY SCHOOL MODERNIZATION & MODULAR
CAMPUS SWING SITE
DCAM-24-CS-RFP-0006
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
GILBANE BUILING COMPANY a company duly organized under the laws of the District
of Columbia, and with a place of business at 1100 North Glebe Road | Suite 1000, Arlington,
Virginia 22201 (the “Design-Builder” or “Contractor” and collectively with the Department,
the “Parties”).
RECITALS
WHEREAS, the Department issued a Request for Proposals dated December 12, 2023
(the “RFP”) to engage a design-builder to prepare a design for and to construct and complete
the work at Burroughs Elementary School Mo dernization & Modular Campus Swing Site
(“Burroughs ES & Modular Campus”), located at 1820 Monroe Street NE, Washington, DC
20018 (the “Project”); and
WHEREAS, the Department intends to impleme nt the Project through a design-build
approach. The scope of work for the Project will be divided into two phases: (i) the design and
preconstruction phase; and (ii) the construction phase; and
WHEREAS, the Department requires that the Project be completed no later than
July 15, 2025 (“Modular Campus Substantia l Completion Date”), and July 15, 2027
(“Modernization Substantial Completion Date”) (collectively, the “Substantial Completion
Dates”); and
WHEREAS, the Design-Builder submitted a pr oposal entitled “Proposal for Design-
Build Services for Burroughs Elementary Sc hool Modernization & Modular Campus Swing
Site – DCAM -24-CS-RFP-0006,” dated January 24, 2024, to provide design-build services for
the Project; and
WHEREAS, the Department retained the Desi gn-Builder to provide design-build
services for the Project, which is to incl ude design, preconstructi on, and construction,
administration services for Burroughs ES & Modular Campus; and
WHEREAS, the Design-Builder will provide the architectural, engineering,
construction, and related services necessary to co mplete the Project, s ubject to the terms and
conditions set forth in this Agreement; and
WHEREAS, the Department has retained the se rvices of a program manager (the
“Program Manager”) to advise it concerning the Project; and
WHEREAS, the Department has established a budget and the Design-Builder will
conduct its work in accordance with an underlyi ng 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 allowances, including an allowance for the maintenance of the school and
Page 5 of 121
grounds per the maintenance and operations pl an until achieving Final Completion (such
budget, the “Project Budget”); and
WHEREAS, the Design-Builder has entered in to a Mentor-Protégé Partnership
Agreement for the Project; and
WHEREAS, the Department and the Design-Builder entered into a letter contract dated
April 22, 2024 (the “Letter Contract”) pursuant to which the Design-Builder was authorized to
proceed with certain design, preconstruction, abatement, and demolition services in furtherance
of the Project.
NOW, THEREFORE, the Department and Design-Bu ilder, for the consideration set
forth herein, mutually agree as follows.
Page 6 of 121
DEFINITIONS
Section 1.1. Administrative Term.
The Agreement shall have an administrative term (the “Administrative Term”) that runs
from the effective date of the notice to proceed to the Administrative Term Date set forth in
the Project Information Section above. In addition, within this time the Design-Builder shall
execute and submit a Final Release of Liens and Claims in a form and format required by a
Contracting Officer (“CO” or “Contracting Officer), inclusive of providing the Department
with a complete set of any pr oduct manuals (“O&M”) and training videos, if applicable. The
Administrative Term is established for the sole purpose of permitting the Department’s Office
of the Chief Financial Officer to process payments in the event any payments become
due. Notwithstanding the foregoing, nothing herein shall be construed to extend the Substantial
Completion Date, extend the Final Completion Date, or limit the Department’s ability to assess
liquidated damages thereon.
Section 1.2. Agreement.
The terms “Agreement” or “Contract” shall mean this entire, integrated agreement
between the Department and the Design-Builder with respect to the Project, consisting of this
document and the Exhibits thereto, including but not limited to the Standard Contract
Provisions (Construction Contracts and Architect ural/Engineering Services Contracts), the
construction documents released for the Design-Builder’s use and any change orders, contract
modifications or change directives that have been executed by the Department.
Section 1.3. Client Agency.
The governmental or quasi-governmental entity, represented by the Department,
requesting the Project.
Section 1.4. Construction Documents.
The final Drawings and Specif ications, 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 a nd manage the completion of the design for the
Project, including construction administration services.
Section 1.6. Cost of General Conditions.
The Cost of General Conditions shall mean the lump sum amount the Design-Builder is
entitled to recover for general cond itions and is further described in Section 8.2 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 7 of 121
Section 1.8. Design and Preconstruction Phase Services.
The services to be provided under Article 3 constitute the design & preconstruction
phase services to be performed by the Design-Builder.
Section 1.9. Drawings.
The drawings are the graphic and pictorial portions of the Contract Project Documents,
wherever located and wherever issued, showi ng the design, locations, and dimensions of the
Work, generally including plans, elevations, sections, details, schedule, and diagrams.
Section 1.10. Final Completion.
The point at which Substantial Completion has been achieved, all punchlist items noted
at Substantial Completion have been completed and all Project documents the Design-Builder
is required to deliver to the Department as a condition to receiving 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 Completi on 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 fu lly construct and complete the Project and
execute all tasks necessary to obtain the final certificate of occupancy for the Project from the
District of Columbia, submit final lien releases from the Design-Builder and Subcontractors
and material suppliers, complete all punchlist items to the Department’s approval and sign-off,
and cause all representations, warranties, and guarantees to be honored and otherwise fulfill all
of the requirements set forth in the Agreement.
Section 1.13. Guaranteed Maximum Price or GMP.
The maximum amount, including, but not limited to, the design-build fee and the Cost
of the Work, that will be paid to the Design-Builder to Fully Complete the Project as set forth
in Article 4. The Guaranteed Maximum Price (“GMP”) may be modified only by Change
Order, Contract Modification, or Change Directive in accord ance with the Agreement. The
GMP shall be established in the GMP Amendment.
Section 1.14. Hazardous Material.
Hazardous Material includes but is not lim ited to, any toxic substance or hazardous
chemical defined or regulated pur suant 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 comprehens ive 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 sh all 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 Sc hedule”) agreed upon by the Department and
Page 8 of 121
the Design-Builder. Such schedule shall include a baseline schedule as updated periodically
by the Design-Builder, approved by the Department. The Project Schedule shall not be changed
except by a Contract Modifica tion, 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 a ny entity that is part of the Design-Builder.
Self-Performed Work is di stinguished 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 C ontract 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 (Construc tion Contracts 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 onl y 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. “Subc ontractors” shall include both those who are
retained to perform labor only and those who are retained both to perform labor and to supply
material or equipment. “Subcontractors” shall also include design professionals who are not
the Design-Builder’s employees and to whom the Design-Builder delegates any part of its
responsibilities under the Agreement, except that references to “trade Subcontractors” shall
exclude design professionals.
Section 1.22. Substantial Completion.
Substantial Completion shall mean that all of the following have occurred: (1) the
construction and installation work have been completed with only minor punchlist items
remaining to be completed; (2) the Project has obtained a DOB Certificate of Occupancy, and
the final DOB Certification of Occupancy shall be received within thirty (30) days of
Substantial Completion; (3) all other required permits or approvals must have been obtained;
(4) all Operation and Maintenance Manuals have been finalized, submitted, and approved and
must be submitted to the Department six months prior to Substantial Completion; (5) required
trainings per Turnover Manual have been scheduled within thirty (30) days of the Substantial
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Completion Date and the Design-Builder shall pr ovide final videotaped recordings within
thirty (30) days of the Substantial Completion Date; (6) Draft Warranties have been submitted
and approved; (7) the Project has obtained DC Department of Health approval of the kitchen
and health suite; (8) the Project site has been deep cleaned and cleared of any debris; (9) the
Project is ready for the Departme nt and Client Agency to use it for its intended purpose; (10)
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; and (11) commissioning is complete, and a final punchlist
is documented with completion dates established. “Minor punchlist items” are defined for this
purpose as items that, in the aggregate, can be completed within sixt y (60) days without
interfering with the Department or Client Agency’s normal use of the Project.
Section 1.23. Substantial Completion Date.
The date established herein by which the Design-Builder shall achieve Substantial
Completion. The Substantial Completion Date may be modi fied only by Change Order,
Contract Modification, or Change Directive in accordance with the Agreement.
Section 1.24. Work.
The term “Work” refers to any and all wo rk done in the performance of the services
necessary, at any and all phases of the Agreement, to Fully Complete the Project.
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GENERAL PROVISIONS
Section 2.1. Letter Contract
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 Parties dated April 22, 2024. Pursuant to the terms of the Letter Contract,
upon execution of this Agreement by the Departme nt (the “Agreement Effective Date”), the
Letter Contract shall automatically be incorporated into 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 Contract by the Department, unless the Department executes a Letter Contract,
in which case the period shall commence from the execution of the Letter Contract, and shall
terminate upon the expiration of the Administrative Term or upon termination by the
Department pursuant to Article s 5 and 6 of the Standard C ontract Provisions (Construction
Contracts) and Article 8 of th e 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 th e Program Manager in
furthering the interests of the Department. The Design-Builder shall use its best efforts to
perform the Work and complete the Project in an expeditious and economical manner
consistent with the interests of the Department. The Department shall endeavor to promote
harmony and cooperation among the Department, Design-Build er, 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 refer 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 a nd keep all information a nd 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, subpo ena or other regulator y authority. The Design-
Builder shall not be divulged of confidentia l information without the individual’s and the
Department’s written consent and only in accordance with District’s or Federal 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
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Subcontractors shall allow the Department to both participate in the investigation of incidents
and exercise control over decisions rega rding external reporting. The Design-Builder,
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 desi gn-build services required for a fully modernized
facility of Burroughs ES, located at 1820 Monroe Street NE, Washington, DC 20018. The
Project includes full design and construction services for an approximately 75,000 square-foot
school facility for Burrough ES and the design and construction of a Modular Campus on
Burroughs field, east of the school facility.
For Burroughs ES, the Design-Builder shall design and construct a combination of renovation
of the existing and new construction to increase the existing footprint to accommodate the
square footage required in the District of Columbia Pub lic Schools (“DCPS or “Client
Agency”) Educational Specifications (“Ed Specs(s)” or “Educational Specifications”). The
historic Burroughs ES was built in two phases, in 1921 and 1927. The building has since had
two additional construction projects, including a classroom wing in 1959 and a new cafeteria
addition in 2013. The building also received some minor upgrades to the mechanical,
electrical, and plumbing (“MEP”) and exterior doors throughout the years. The Department
anticipates the demolition of a portion of th e existing building, mainly the 1959 classroom
wing, but the Design-Builder shall recommend a design that is most advantageous to the
Project. This classroom wing has accessibility issues as well as maintenance concerns which
must be resolved as part of the modernization.
The Project includes the full design and construction for temporary school facilities. The
location will need to have approximately forty (40) classroom-sized spaces, one (1) large tent
membrane structure for gym/dining, a modular kitchen with dedicated restrooms, (1) health
suite space with ensuite restroom, group rest rooms, two (2) playgrounds, and covered ADA
access across all temporary facilitie s. Each facility must also provide parking for the school
staff, include access for delivery and garbage/ recycling trucks, and ha ve a designated pick-
up/drop-off location for the school population. The Design-Builder shall use the Goding
Elementary School Swing Site at Phelps Field as a basis of design (Exhibit B2). The location
shall also have a continuously fed natural gas emergency generator and have all utilities
independent of the existing school buildi ng to allow for continuous use throughout
construction.
Generally, the Design-Builder’s responsibilities shall include, but will not be limited to the
following:
a) To confirm the design and construction of the Project in accordance with the RFP
Documents, including all applicable attachments.
b) To provide all design, construc tion, 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 inclusiv e of budgeting, value engineering
(“Value Engineering”), scheduling, Project phasing, Project administration, management,
and coordination of subcontractors. Design scope shall also include full design and
specifications, with minimum of two options for basis-of-design for each, of the furniture,
fixtures, and equipment (“FF&E”) for GMP pricing.
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c) To conduct subsurface investigation work if and as required for the Project.
d) To furnish and provide all materials, ma nagement, personnel, e quipment, 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.
The Design-Builder shall provide the Depa rtment with a GMP based on the Design
Development Documents. The District anticipates an early start agreement (“ESA”) and a
subsequent GMP package shall follow this Agreement. 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 administr ation services. During the C onstruction Phase, the Design-
Builder shall be required to cause the Work to be completed in a manner consistent with the
design documents and phasing plan approved by the Department and sh all provide all labor,
materials, insurance, bonds, and equipment ne cessary to fully complete the Project in
accordance with the drawings, specifications, Project Schedule, 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 de signated Contracting O fficer 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 work (“Scope of the Wo rk” or “SOW”) 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 Ed Specs to
a fully realized Project in accordance with the available Project budg et. The Design-Builder
will be required to: (1) 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); (2) to develop a comprehensive Project
phasing; (3) to solicit competitive trade bids for the construction work and to develop an
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acceptable GMP and corresponding scope and schedule for the work; and (4) to implement the
requisite construction and other work necessary no later than the Substantial Completion Date.
The Design-Builder will be required to provide move coordination and logistics support. The
Design-Builder shall be responsib le 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
1. All disclosures, representations, warranties, and certifications the Design-
Builder makes in its proposal in response to the RFP shall remain binding
and in effect throughout the term of the Agreement. The Design-Builder
reaffirms that all such disclosures, representations, warranties, and
certifications are true and correct.
2. If any disclosure, representation, wa rranty 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 qua lifications, claims or
litigation history or financial condition, is materially inaccurate, that shall
constitute a material breach of the Agreement, entitling the Department to
any and all available remedies.
3. The terms and conditions of this Section 2.8 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 De partment for any and all acts and omissions of
the Design-Builder’s agents, employees, Subc ontractors, Sub-Subcon tractors, material
suppliers, and laborers, and the agents a nd 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 Project planning and conc ept 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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DESIGN-BUILDER’S DESIGN & PRECONSTRUCTION SERVICES
Section 3. 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 copies
of the 50% Design Development Documents and budget, approximately halfway through the
Design Development phase as a progress set to the Department; (v) prepare and submit soft
and hard copies of the complete set of 60% Design Developmen t Documents, Specifications
and Design-Builder’s cost estimate and schedule; (vi) prepare soft and hard copies of the
complete set of 95% Construction Documents, Specifications and Design-Builder’s cost
estimate and schedule; (vii) review existing condition asse ssment and recommendation, and
(viii) obtain all necessary building permits to support the Project Schedule.
Without limiting the generality of the foregoi ng, 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 toreturn the cost of the work to the Project
Budget; (iv) engage in preconstruction activities, includi ng identifying any long-lead items;
(v) develop a GMP proposal for the Project; a nd (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.
Section 3.1. Design and Preconstruction Phase Initial Deliverables
Section 3.1.1. Building System Assessment. If requested by the Department, within
twenty-eight (28) 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 if additional systems need to be added as part of this modernization. Such report shall
take into consideration the nature of this Project and the proposed Educational Specifications.
This report shall asse ss all the building’s key systems, including, but not limited to, HVAC,
kitchens, roof, windows, electrical, lighting, audio visual 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 and the
Design-Builder and any other a ffected parties to properly pl an the Project. The Baseline
Schedule shall show: (i) key de sign 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
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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 monthly basis.
The Project schedule is attached hereto as Exhibit B1.
Section 3.1.1.2 Concept Design . No later than twenty-four (24) 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 requests three (3)
concept options or alternatives. Each of the conc ept 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 Ed Specs and shall explain the rationale and cost
implications associated with such deviation. The Department shall have the right to disapprove
the concept design submittal for any reason. Fo llowing review of the concept design
submissions by DCPS and the Department, the Department shall appr ove a final concept
design. The Design-Builder shall revise the concept design submission as necessary to
incorporate comments, feedback and other di rection 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 as referenced in Exhibit A2.
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 Prelimin ary Budget Estimate sha ll 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 general conditions cost, and
contingencies shall be broken out in 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 provi ded (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 Pre liminary 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 construc tion management and pr oject phasing plan (“C onstruction Management
Plan”) within twenty-eight (28) days after the Preconstruction NTP is issued to include, but is
not limited to, noise control, hours for construction and deliveries, truck routes, trash and debris
removal plan, traffic and parking control, communications procedures, emergency procedures,
quality control procedures, dust control, public street cleaning and repair, planned occupancy
of public ways, erosion cont rol, tree protection plan, vi bration monitoring, existing and
adjacent building surveys plan , temporary fire protection measures, Project signage, pest
control, construction staging plan, and construction logistics plan.
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Section 3.1.1.6 Disi ncentive Fee for Fa ilure to Timely Provide Deliverables. The
Design-Builder acknowledges that the Department is engaging th e Design-Builder to provide
an extensive level of precons truction support services to minimize the potential for cost
overruns, schedule delays, or the need for extens ive Value Engineering/re-design late in the
Project and that the deliv erables 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 re ceiving 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, archeologi cal studies, recommende d 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 we ll as the programmatic
requirements set forth a nd attached hereto as Exhibit A1 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 sha ll 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 soft and ha rd copies of the complete set of 35%
Schematic Design Documents; (iv) prepare and submit soft copies of the 50% Design
Development Documents and budget, approximate ly half way through the Design
Development phase as a progress set to the Department; (v) prepare and submit soft and
hard copies of the complete set of 60% Design Development Documents, Specifications
and Design-Builder’s cost estimate and schedule; (vi) prepare soft and hard copies of
the complete set of 95% Construction Documents, Specifications and Design-Builder’s
cost estimate and schedule; (vii) revi ew existing condition assessment and
recommendation, and (viii) obtain all necessary building permits to support the Project
Schedule.
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Without limiting the generality of the foregoi ng, 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) obt ain bids from trade subcontractors to perform the work
described in the Design Development Docume nts 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 Proj ect Budget; (iv) enga ge 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 atte nd regular meetings
with the Department, the Program Manager, and the Design-Builder’s Architect.
Between the time the Preconstruction NTP is issued and the time the GMP is accepted
by the Department, the Design-Builder shall use commercially reasonable best efforts to
ensure that: (i) the design evolves in a manner that is consistent with the Department’s
budget and programmatic requirements, as the same were defined and established by the
Department at the end of the concept design; (ii) the design work is properly coordinated;
and (iii) the required desi gn 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 for the Project that is a logical de velopment of the approved concept design
and is consistent with the Departme nt’s schedule, budge t and programmatic
requirements. The schematic design shall contain at least the level of detail
contemplated in industry best practices for a schematic design. The design submittal
shall specifically identify any deviations from the approved concept design and shall
explain the rationale, cost, and time implications associated with such deviation. The
Department shall have the right to disapprove the schematic design submittal for any
reason.
Following a review of the schematic design submission by DCPS and the
Department, the Design-Builder shall ma ke revisions to th e 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 the Schematic
Design are as referenced in Exhibit A2.
Section 3.1.3.1.2 Schematic Budget Update. Concurrent with 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 pre liminary budget estimate. The Design-Builder
shall include a cost estimate and value engineering analysis and detailed
recommendations for Project savings (even if the Project is not over budget). To the
extent the budget update shows an overru n 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 require ments within budget)
suggestions that would return the Project to budget. Only the Department shall have
the authority to increase the Project budget, and absent such direction, the Deign-
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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-l ead delivery items that c ould adversely affect the
schedule contemplated in this RFP. 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 pha se, 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 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 final Design Devel opment Documents shall contain at least
the level of detail contempl ated in industry best prac tices for Design Development
Documents. The design submittal shall specifically identify any deviations from the
approved schematic design and shall explain the rationale and cost implications
associated with such deviation. The Design- Builder shall include a cost estimate and
Value Engineering Analysis and Detailed Recommendation for Project savings (even
if the Project is not over budget). The Desi gn-Builder shall provide maintenance and
repair cost services, which include 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 Deve lopment Submission. The Design-Builder shall prepare
the design development submission for review and comment by the Client Agencies and the
Department. Such design development submission shall include the elements and information
listed below:
The design development submittal shall include at least, but not limited to, the following:
a) Detailed and dimensioned plans, wall sections, building sections, and
schedules;
b) Draft Specifications for materials, systems, and equipment;
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c) Complete code compliance analysis and drawing;
d) Space-by-space equipment layouts for ke y spaces. As part of the design
development phase, the Design-Builder and/or the Design-Builder’s
architect and any design consultants sh all confer with representatives from
DCPS and the Department regarding these layouts to confirm that they are
acceptable to DCPS;
e) A final design and lay-out for FF&E;
f) An interior finishes schedule;
g) Preliminary designs for all buildi ng system upgrades, including low
voltage/AV/IT. With regard to HVAC systems, the submission should
include: (i) a detailed desc ription of the proposed me chanical systems; (ii)
their general layout, including ‘Singl e-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 the U.S. Green Building Council (“USGBC”) to
obtain LEED certification and pay all registration fees;
k) Register the Project with ILFI or U.S. Green Buildings;
l) Register the Project with International Well Building Institute (“IWBI”) for
WELL Gold Certification;
m) Participate in SIT Meetings, and community meetings as required by
DGS/DCPS;
n) Coordinate with the DC HPO and other agencies, commissions, groups, etc.
as required to assess and determin e historic and/or archeological
significance and requirements. Attend meetings and hearings if necessary;
o) Respond in writing to all DCPS and DGS comments on plans;
p) Prepare a presentation and provide a minimum of three (3) presentation
boards for each community meeting and present/display onsite. Presentation
boards shall be in full color and include at least four (4) 3-D renderings and
presentations shall also include a digital slide presentation;
q) Coordinate final utility plans as required;
r) Act as scribe for all design-related meetings. Distribute meeting minutes to
all attendees;
s) Baseline Schedule monthly updates in the format set forth in the RFP; and
t) Prepare and submit one (1) electronic copy in PDF of Design Development
Documents including detailed specifications, Cost Estimate, and schedule
to the District staff for review and approval. (60% plan review).
Components to include, but are not limited to:
i. Site plans, paving layouts, traffic circulation, lighting, signage, and
utilities;
ii. Floor plans, Structural, Civil, Ar chitectural, MEP, Fire Protection
and landscaping, etc.;
iii. Exterior elevations, rendering and color palette;
iv. Building sections and details as required;
v. Interior elevations, casework and millwork elevations as required;
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vi. Playground equipment, if applicable;
vii. Stormwater management;
viii. Food service or other equipment as required;
ix. LEED Information as appropriate;
x. WELL Score Card;
xi. Final Draft of the “Percent for Art” Public Art Package to be used as
the scope for the Artists’ RFP;
xii. Cost Estimate;
xiii. Value Engineering analysis and detailed recommendation for
Project savings (even if the Project is not over budget);
xiv. Energy Report that includes all recommended strategies applicable
to achieving the energy consumption goals (EUI requirements);
xv. Maintenance and Operations Plan; and
xvi. Quality Control Plan.
Section 3.1.4.2 Early Release Packages/ Long Lead Materials/Abatement &
Demolition.
Section 3.1.4.2.1 Abatement & Selective Demolition. Once the concept 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 Schematic Design 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 start 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. The De sign-Builder shall be encouraged to
participate in DOB’s program for accelerated plan reviews and permit approval
program as part of the permit allowance included in this Contract. The Design-
Builder shall provide the resources necessary to support these requirements.
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Article 4 - FORMATION OF GMP PROPOSAL
Section 4.1. General.
The Design-Builder shall provide the Depa rtment with a GMP based on the Design
Development Document. The Department antic ipates an ESA and subsequent one GMP
package.
During the Design & Preconstruction Phase, th e Design-Builder shall cause the Design-
Builder’s Architect to prepare the GMP Basis Project Documents. Based upon the GMP Basis
Project Documents, the Design-Builder sha ll propose a GMP (referred to as the “GMP
Proposal”) which shall be submitted in accordan ce with this Article. The Design-Builder
acknowledges and understands that the GMP Basi s Project Documents will be incomplete at
the time it submits its GMP Proposal. Although complete construction Project Documents will
not be available and many details will not be shown on GMP Basis Project Documents or will
otherwise need to be adjusted, the GMP proposed in the Design-Builder’s GMP Proposal shall
be intended to represent the Design-Builder’s offer for the Final Completion of the Project. If
the Design-Builder’s GMP Proposal is acceptable to the Department, it shall be memorialized
in form of an amendment to this Agreement (such amendment, the “GMP Amendment”). Such
amendment shall be in the form of Exhibit L attached hereto.
As part of the GMP Amendment, the Design-Builder shall certify that the GMP
established thereby: (i) contains sufficient amounts to perform all Work necessary for the Final
Completion of the Project; and ( ii) contains sufficient amounts to provide and construct any
items or facilities that are not contained in the GMP Basis Project Documents, but which are
necessary for a fully functioning facility that meets the programmatic requirements established
for the Project. The Design-Builder will further covenant and agree in the GMP Amendment
that it will perform all of the construction work necessary for the Final Completion of the
Project, including, without limitation, aspects of the Work that are not shown on the GMP Basis
Project Documents, but which are a logical deve lopment of the design intent reflected in the
GMP Basis Project Documents, for an amount not to exceed the GMP.
Section 4.2 Review of GMP Basis Project Documents.
The Department has selected the Design-Builder, in large part, because of its special
expertise in constructing similar projects. Before submitting its GMP, the Design-Builder shall
review the GMP Basis Project Documents for accuracy, constructability, and completeness and
shall bring such deficiencies to the attention of the Department and shall cause its Architect to
address any such deficiencies. To the extent that any such deficiencies in the GMP Basis
Project Documents could have been identified by such review by a competent Design-Builder,
such deficiencies shall not be the basis for a change in the GMP or delaying the Project
Schedule.
Section 4.3 Contingency.
The Cost of the Work shall include a conti ngency, 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, issu es 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
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date of the Agreement (the “Contingency”). During the C onstruction 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
Officer when draws reach 3% upon the contingenc y 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. With in 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 af ter 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 subc ontracted work which will be performed
by District residents. The Design-Builder sh all 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 receiv ed, the Design-Builder’s evalua tions 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 tabul ation shall include sc ope assessments and
identify required leveling of the trade submitted. To the extent that the Design-Builder’s
award recommendation is based on scoping adjustments, the Design-Builder shall
clearly identify the scoping adjustment and the need for such adjustments. Such bid
tabulation shall include LSDBE utilization information in addition to price and other
information. Such bid tabulations as well as copies of the bids shall be submitted to the
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Department’s Program Manager. The Design-Builder represents and warrants that the
bid tabs so submitted shall fairly repres ent the results of the subcontractor bidding
process and that the Design-Builder shall not misrepresent any such data to the
Department or its Program Manager.
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-B uilder 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, a ddenda, 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”)’s Velocity Program)
($700,000.00), Public Art Allowanc e ($450,000.00), Utility Allowance
($400,000.00), Public Space Improvements Allowance ($500,000.00), and
Six Months Maintenance Allowance ($300,000.00).
c) Assumptions and clarifications made in preparing the GMP Proposal, noting
in particular any exclusions. The assu mptions and clarific ations 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 ( Exhibit W ). Such memorandum shall specifically address
any changes in the Project aesthetics, functionality or performance.
d) The proposed GMP, including a statem ent 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 Ba seline Schedule, and wit hout 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
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Sitework. A separate summary shall be provided that notates any previous
contract approval such as the letter contract or any early start agreements.
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
i. The Design-Builder’s Contingency shall be utilized to
compensate for the increased cost of the Work incurred by the Design-
Builder due to unforeseen circumstances relating to construction of that
Project which resulted in an unavoidable increase in costs, except when
deemed the responsibility of the Department in accordance with this
Contract. If the Design-Builder fails to include 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 reac hes 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 applicable line items in a GMP, the
deficiency will be charged to the Design-Builder’s Contingency for that
Project, however, such events shall not because 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 Department’s Contingency. Any unused
Contingency, whether Department C ontingency or the Design-Builder
Contingency, shall be r econciled to a zero balance via a Contract
Modification upon Final Completion.
ii. When the Design-Builder proposes to use the Department’s
Contingency, the Design-Builder shall prepare an RCO, identifying the
amount sought to be charged to th e Department’s Contingency, the
reasons why the amount should be ch arged to that Contingency, and
demonstrating to the satisfaction of the Department that the costs to be
incurred are necessary for the Work and are the responsibility of the
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Department. At all times, the Design-Builder shall avoid and mitigate
Department Contingency costs whenev er possible. Before payment or
as part of an audit, the Architect and the Department shall have the
authority to verify the actual costs incurred. No costs may be charged
to the Department’s 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 so le discretion, is its
responsibility. The Department may increase, decrease or eliminate the
Owner contingency at any time.
Section 4.7 Department Revi ew of GMP Proposal.
The Design-Builder shall meet with the De partment 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 adjustme nts to the GMP Proposal, its
basis, or both.
Section 4.8 Department Acceptance of GMP Proposal.
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 for review and a pproval by the Council for the District of
Columbia (the “Council”) in the event it exceeds the previously approved not-to-exceed limit
established in the Agreement by more than $1 million. In such an event, the GMP shall not be
effective until so approved and executed by the Parties.
Section 4.9 GMP Amendment.
In the event that an acceptable GMP Proposal is not developed and a GMP Amendment
is not executed, the Agreement will be terminated. In the event the Agreement is terminated
pursuant to this Section, the Department shall be free to use any of the Project documents and
information developed through the date of termination to retain a new contractor to complete
the Project. 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 th e 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 ac cordance with this Article, the Design-
Builder agrees to specifically acknowledge and declare that the Contr act 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
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obligations hereunder. The De sign-Builder shall further acknow ledge that it has visited the
site, examined all conditions a ffecting the Work, is fully familia r with all of the conditions
thereon and affecting the same, and, has carefully examined all drawings and specifications
provided to it.
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Article 5 - CONSTRUCTION PHASE
Section 5.1 General.
The Construction Phase shall not commence until the Department issues a NTP for
Construction Phase Services. The Design-Builder shall, through Subcont ractors or, with the
written consent of the Department, with the Design-Builder’s own forces, perform all of the
Work necessary to construct the Project so that it is complete, safe, and properly built in strict
accordance with the approved Construction Project documents and the other requirements of
this Agreement. Without limitation, the Design-Builder shall provide all of the labor, materials,
tools, equipment, temporary services, and facilities necessary to complete the Project in
accordance with the drawings, specifications, Schedule, and Budget that are issued for the
Project. The Design-Builder shall be responsib le for paying for and obtaining all necessary
permits and to pay all necessary fees for utility connections. The Work shall be carried out in
a good and workmanlike, first-class manner, an d in a timely fashion. All materials and
equipment to be incorporated into the Proj ect 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 Construc tion Administration. The Design-Builder, through its
Architect/Engineer, shall provi de construction administrati on services to support the
construction phase of the Project. The Work shall include, but is not necessarily 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 porti ons of the structures should function, at a
minimum, at the level of functionality that existed immediately prior to the construction of the
Project. If any unrenovated portion of the Project functions at a lower level of functionality as
a result of the Design-Builder’s Work, the Design-Builder shall be back-charged the costs
incurred by the Department in addressing the decreased functionality.
Section 5.2 Design Completion.
Section 5.2.1 Mid-Point Construction Project Document Review. Based on the
approved Design Development Documents and any approved Value Engineering, the Design-
Builder shall prepare a set of Construction Documents. It is contemplated that the Construction
Documents will be issued in several different sets (i.e. architectural, electrical, mechanical,
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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 sh all 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 de parture shall have on th e 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 require d to prepare a revised design that complies with the GMP
drawings and specifications (“Drawings and Sp ecifications”) 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
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 doc ument shall be deemed approved, provided
however that the Department has not advised that such document is still under review.
Section 5.2.5 Third Party Contractors. The Department will hire third-party
contractors for plan review and for testing and material inspections. The Design-Builder shall
coordinate and work with th e Program Manager and third-pa rty 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 fi nal IFC Set(s). The approved
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Maintenance and Operations Plan shall form the basis of the Design-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 unle ss otherwise expressly author ized 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 re quirements 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 conditi ons of this Project and shall include appropriate
provisions in the subcontracts to minimize the cost impact associated with such
conditions. Such strategies may include, but are not limited to: (i) obtaining from
subcontractors unit price quotes for typical coordination items; (ii) setting aside
allowances for coordination work; and (iii) such other techniques as may be employed
by the Design-Builder.
Section 5.3.4 The Design-Builder shall carefully document its procedures for making
available bid packages to potential bidders , the contents of each bid package,
discussions with bidders at any pre-bi d meetings, bidders’ compliance with bid
requirements, all bids received, the Design-B uilder’s evaluations of all bids, and the
basis for the Design-Builder’s recommendation as to which bidders should be chosen.
The Department shall be afforded access to all such records at all reasonable times so
that, among other things, it may independently confirm the Design-Builder’s adherence
to all requirements set forth in the Agreement including, without limitation, affirmative
action requirements and subcontracting requirements.
Section 5.3.5 The Department may, in its sole di scretion, 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 disc retion, 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
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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 a ll subcontractors and suppliers. The
Department may elect to review the form of any subcontractor agreement with a
material supplier to ensure that such cont ract 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 compensa tion directly from the Department on
any third-party beneficiary, quantum meru it, 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 th ird-party beneficiary of the
subcontractor supply agreement, entitled to enforce any rights thereunder for its
benefit;
Section 5.3.8.4 that the subcontractor or supplier consents to the assignment of
its agreement to the Department, at the Department’s sole option, if the Design-
Builder is terminated for default;
Section 5.3.8.5 that the subcontractor or supplier shall comply immediately
with a written order from the Department to the Design-Builder to suspend or
stop work;
Section 5.3.8.6 that the subcontractor or supplier shall maintain records of all
Work it is requested or authorized to do on a time and material or cost-plus
basis, or with respect to claims that it has asserted on a time and materials or
cost-plus basis, during the Project and for a period of time specified in the
General Conditions and requiring the subcontractor or supplier to make those
records available for review or audit by the Department during that time;
Section 5.3.8.7 that the subcontractor shall obtain and maintain, throughout the
Project, workers’ compensation insurance in accordance with the laws of the
District of Columbia (this provision is not applicable to supply agreements);
Section 5.3.8.8 that, if the Department terminates the Agreement for
convenience, the Design-Builder may s imilarly terminate the subcontractor
supply agreement for convenience, and that the subcontractor or supplier shall,
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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 re pair or replace non-conforming work,
materials, or equipment at its own cost;
Section 5.3.8.11 a provision requiring that s ubcontractors and suppliers
promptly pay subcontractors and supp liers 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 (E conomic Inclusion Goals); provided,
however, that the Design-Builder may, in its reasonable discretion impose a
different LSDBE subcontracting goal on so me 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 th e Design-Builder to withhold
payment from the subcontractor if th e subcontractor does not meet the
requirements of the subcontract;
Section 5.3.8.14 lien and claim release and wa iver 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 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 subcontract ors 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.
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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 Depar tment without the Department 's Contracting Officer and
DSLBD’s prior written consent.
Section 5.3.12The Department has the right to contact subcontractors or suppliers at all
tiers, or material or equipm ent suppliers directly to c onfirm 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 di rections 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 c onduct, at a minimum, weekly progress
meetings following the Design-Builder’s genera ted agenda at which the Department, the
Design-Builder’s Architect, the Program Mana ger, 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 pr ogress of construction, id entify any developing
delays, regardless of their cause, and reflect the Design-Builder’s best projection of the actual
date by which Substantial Completion and Final Completion of the Project will be achieved.
Via a narrative statement (not merely a critical path method schedule), the Design-Builder shall
identify the causes of any potential delay and state what, in the Design-Builder’s judgment,
must be done to avoid or reduce that delay. The Design-Builder shall point out, in its narrative,
changes that have occurred since the last upda te, including those related to major changes in
the scope of work, activities modified since the last update, revised proj ections of durations,
progress, and completion, revisions to the schedule logic or a ssumptions, 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.
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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 th e information provided. Submission of updates
showing that Substantial Completion or Final Completion of the Project will be achieved later
than the applicable scheduled completion date shall not constitute requests for extension of
time and shall not operate to change the scheduled completion date(s). The Department’s
receipt of, and lack of objection to, any schedule update showing Subs tantial Completion or
Final Completion later than the dates agreed upon in the Project Schedule shall not be regarded
as the Department’s agreement that the Design-Builder may have an extension of time, or as a
waiver of any of the Department’s rights, but merely as the Design-Builder’s representation
that, as a matter of fact, Substantial Completion or Final Completion of the Project may not be
completed by the agreed-upon date in the Proj ect 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 incl ude: (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 qua lity control report; (v) progress photos; and (vi)
an updated buyout log for all awarded subcontract s. Such written report shall include the
following elements:
Section 5.5.1 Constructi on Progress Update. Each monthly update shall contain a
narrative description of the Project progre ss and a critical path method schedule in
Primavera format, including any plans to correct defective or deficient work or for time
lost due to delays.
Section 5.5.2 Cost Update. The monthly update shall reflect, by GMP line item, the
original line-item amount, approved, pending, and projected Change Order amounts, the
cost incurred to date, the projected cost to complete the Work of the line item, and any
variance between the actually approved budgeted balance of the line item and the
projected cost to complete. A clear distinction must be made between approved Change
Orders and those merely requested or anticipated. The report shall explain all variances
including “buy-outs” or final actual costs including those below their respective GMP
line item. In addition, the report must di sclose any instances in which the Design-
Builder has transferred amounts from one line item to another, or from the Contingency
to any other line item. Neither submission nor the Department’s failure to reject an
update reflecting that the projected cost to complete the Project exceeds the GMP will
operate to increase the GMP or waive the Department’s right to enforce the GMP. If the
report reflects budget overruns, it must also include a recovery plan.
Section 5.5.3 Economic Inclusion Report. The monthly report shall include a detailed
summary of the Design-Builder’s efforts and results with respect to the economic
inclusion goals set forth in this Agreement. Such report shall be in a format acceptable
to the Department and shall include, at a minimum: (i) the Design-Builder’s overall
performance with respect to the goals; (ii) a listing of subcontracts and agreements with
material suppliers during the month and the percentage of those subcontracts and
agreements with material suppliers awarded to LSDBEs; (iii) a listing of subcontracts
during the month and the estimated percentage of the labor hours to be worked by
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District of Columbia residents pursuant to t hose 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 sh all include a detailed
summary of the steps that are being empl oyed to ensure quality construction and
workmanship. Each report shall specifically address issues that were raised by the
Department and/or its Program Manager during the prior month and outline the steps that
are being taken to address such issues.
Section 5.5.6 Progress Photos. The monthly report shall include updated progress
photos that shall detail changes in the Work during the month. The Design-Builder shall
also maintain a daily log containing a record of weather, Subcontractors working on the
site, number of workers, major equipmen t on the site, Work accomplished, problems
encountered and other similar re levant data as the Departme nt 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 a nd 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-Bu ilder 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:
The following individuals shall be cons idered key personnel (“Key Personnel”) of
Design Builder, a different Project Manager shall be provided for the Modernization
and Modular Campus as noted below:
i. Project Manager of Modernization
ii. Project Manager of Modular Campus
iii. Superintendent
iv. Project Executive
B - Key Personnel of the Design-Builder’s Architect/Engineer
The following individuals shall be considered the Key Personnel of the Architect, a
different Project Architect shall be provided for the Modernization and Modular
Campus as noted below:
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i. Project Manager
ii. Project Architect of Modernization
iii. Project Architect of Modular Trailers
iv. Principal in Charge
v. Lead Mechanical Engineer
vi. Lead Envelope Consultant
It is contemplated that these Key Personnel will work from the design stage, purchasing,
and throughout the bulk of the fieldwork. Th e 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 prio r 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 De sign-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 Removal 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 repl acement fee, without the prior
written consent of the Department, then the Design-Builder shall pay to the
Department’s Contracting Officer th e 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 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, co sts, or expenses other
than the Department’s internal administrative costs.
Section 5.7.2.2 In addition, the Department sh all have the right, to be
exercised in its sole discretion, to rem ove, 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 Contracti ng Officer. In the event, that the
Department exercises the right to rem ove, 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
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complete the services required under th is Agreement in conjunction with the
new members of the Design-Builder’s team approved by the Department’s
Contracting Officer.
Section 5.8 Qualified Personnel/Cooperation.
The Design-Builder shall employ on th e Project only thos e employees and
Subcontractors who will work t ogether in harmony and who will cooperate with one another
on the Project. The Design-Builder shall enforc e 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 an y 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 qu ality and new unless ot herwise 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-Builde r, 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 acc ess to the Design-Builder’s Subcontractors and
material suppliers, invoices, pur chase orders, Change Order estimates, records for Self-
Performed Work, and other rele vant 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;
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Section 5.11.2.2 Delays due to adverse weather, unless the Design-Builder establishes
that the adverse weather was of a nature and duration in excess of averages established
by data from the U.S. Department of Commerce, National Oceanic and Atmospheric
Administration for the Project locale for the ten (10) years preceding the effective date
of the Agreement. For purposes of this clause, whether shall only be deemed “adverse”
if the weather in question was more severe than that encountered at the Project site over
the last ten (10) years for the month in qu estion. Such determina tions 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 weathe r 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 de lay 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 De sign-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, Section 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; or
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.
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.
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Section 5.11.4 If the Design-Builder wishes to make a claim for an adjustment in the time
allotted per the Project Schedule, written notice as provided herein shall be given. The
Design-Builder’s claim shall include an estimate of the cost and of the probable effect of
delay on the progress of the Work. In the case of continuing de lay, 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 eith er 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 em ployees 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 pr oposed separation and the specific nature of the safety
measures to be taken including fences and ba rriers 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 Depar tment or Client Agency at any time, including, but not
limited to, as necessary to a ddress any new national or lo cal 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
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the proposed separation and the specific nature of the fences and barriers that will be
used.
Section 5.12.4 Site Security. The Design-Builder shall be responsible for site security
and shall be required to provide such watchmen as are necessary to protect the site from
unwanted intrusion. Site Secur ity 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 th e Project site. The Design-
Builder shall, at all times, provide and maintain a fully equipped construction office for
DGS staff assigned to the Project. The costs for these Site Office(s) shall be included
as part of the Design-Builder’s general conditions cost.
Section 5.13.3 Parking. The Design-Builder shall organize its work in such a manner
so as to minimize the impact of its operations on the surrounding community. To the
extent that the number of workers on the site is likely to have an adverse impact on
neighborhood parking, the Design-Builder sha ll 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 th e 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 th e Work at all times while construction
is underway. Such personnel shall maintain full-time, on-site construction supervision
and provide daily inspections , quality control, monitori ng, coordination of various
trades, record drawings, and daily work log.
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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.
Section 5.14.2 Punchlist. Promptly before Substantial Completion, the Design-Builder
shall cause the Design-Builder’s Architect to develop a punchlist. Once the punchlist is
prepared, the Design-Builder shall inspect th e work along with representatives from the
Department. The punch list sh all be revised to reflect additional wo rk items that are
discovered during such inspection. The Desi gn-Builder shall correct all punchlist items
no later than sixty (60) days after Substantial Completion is achieved.
Section 5.14.3 Warranties & Manuals. The Design-Builder shall prepare and submit
the following Project documentation in accord ance with the Turnover Manual: (i) a
complete set of product manuals (“O&M” or “Operation and Ma intenance Manuals”),
training videos, draft and final warranties, etc.; (ii) attic stock; (iii) an equipment schedule;
(iv) a proposed schedule of maintenance for the new building; (v) environmental, health
and safety documents for the new 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. The Design-Builder shall provide a
maintenance and repair cost services report, 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.
Section 5.14.4 Eleven Month Walk. 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 5.14.5 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 5.14.6 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 5.14.7 The Design-Builder shall assist Client Agency in relocating FF&E and
other items as necessary within the renovate d 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.
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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 dur ing construction. Protection exte nds to the root systems of
existing vegetation. The Design-Bu ilder shall not store material s or equipment, or drive
machinery, within the drip line of existing trees and shrubs.
Section 5.17 Sediment and Erosion Control.
The Design-Builder shall be responsible for inst alling sediment and erosion control measures
in accordance with DOEE guidelines, inclus ive 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, c ontrol, 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 developmen t, preconstruction,
construction, and closeout pha ses. 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 stipul ations driving satisfactory integr ation 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 Deve lopment Documents, and in ge neral, shall include a table
of contents, quality control team organiza tion, and hierarchical arrangement detailing
ongoing, regular interaction/coordination within the Design-Builder’s teams,
duties/responsibilities of quality control personnel, s ubmittal procedures, schedule of
specified inspection & testing requirements, deficiency correction procedures, issues &
conflicts resolution, RFI documentation proces s, change manageme nt, 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
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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 Depart ment, 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 elemen ts and any delegated design features that
require engineered solutions, backed by supporting analysis data.
The Quality Control Plan must clearly describe quality control measures such as using
Department’s Quality Control Master Program 3-phase checklists recommended to be
undertaken by both design & construction teams. Prior to the construction phase commencing,
the Design-Builder must advise the Department regarding the status of their drawing &
specification documents, from a percentage completion standpoint. For that matter, the design
phase quality control effort shall provide metrics to gauge whether the design documents –
drawings & specifications – are as complete as possible, prior to the Design-Builder’s
groundbreaking. DGS QC Program Design Phase Checklists include metrics to perform this
evaluation of design documents. Similarly, the Quality Control Plan must describe in detail
the quality control mechanisms proposed to be implemented by the Design-Builder for
ensuring adherence with design documents by way of minimal rework and maintaining the
highest standards of construction. The Quality Control Plan must detail a description of any 3rd
parties suggested to be hired by the Department such as build ing envelope c onsultants 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 Wor k. The monthly report shall
include a detailed summary of the steps that are being employed to provide quality construction
and workmanship. The monthly report should specifically address issues raised during the
month and outline the steps that are being used to address such issues. The following are the
components that must at a minimum be included within the monthly Quality Control report
submitted to DGS. All components must be update d regularly, and current versions included
with monthly submissions to the Department.
1. A written narrative of Quality Cont rol 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.
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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 De partment shall have th e right to direct the
Design-Builder to accelerate the Work if, in th e reasonable judgment of the Department: (i)
the Design-Builder fails to supply a sufficiency of workers or to deliver the materials or
equipment with such promptness as to prevent the delay in the progress of the Work; or (ii) the
progress of the Work otherwise materially falls behind the projections contained in the then
currently approved Project Schedule. In the event that the Department or its Program Manager
determine that either of the events specified in the preceding sentence have occurred, the
Department shall provide the Design-Builder with written notice of such event and the Design-
Builder shall be required to provide the Department with a schedule recovery plan (“Recovery
Plan”) that is reasonably designed to address the concerns raised in such notice within three (3)
days after receipt of such notice. If the Department and the Design-Builder are unable to agree
on the terms of the Recovery Plan within five (5) days after the issuance of the notice (i.e.
within forty eight (48) hours after the receipt of the proposed Recovery Plan), the Department
shall have the right to direct such accelerati on as the Department, in its reasonable judgment,
deems necessary. Provided Department complies with the notice provisions of this Section,
the cost of any acceleration directed under this Section shall not justify an adjustment to the
GMP or the Substantial Completion Date.
Given the nature of the Project and the fact that there is a fixed date upon which the
Client Agency plans to occupy the building, the Design-Builder hereby: (i) acknowledges that
this provision is a material inducement upon which the Department has relied in entering into
this Agreement; and (ii) represents and warran ts that it will include 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 De partment shall have th e 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 industr y standards, requirements set fo rth 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 r easonable judgment, deem s necessary. Such
directive may include adjustments to the procedural provisions set forth in the Quality Control
Plan and/or may impose additional requirements on the manne r in which Work is being
performed. Provided the Department complies with the notic e provisions of this Section, the
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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 fo r information; (ii) submittals; (iii)
meeting minutes; (iv) invoices/applications for payment (full package including
all forms required by DGS); (v) certified payrolls (in addition to upload via LCP
Tracker); (vi) drawings and specifications; (vii) GMP and any Submissions that
require approval by DC C ouncil; (viii) punchlist; a nd (ix) other Project
documents as may be designated by the Department.
Electronic storage and tran smission of information via ProjectTeam system
shall be compliant with the provisions of the 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. Gove rnment 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, re gulations, 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 subcontract ors 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:
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a) A complete set of the Design-Builder’s Project files.
b) A complete set of produ ct manuals (O&M), training videos, warranties, etc.
c) As-built record drawings.
d) Attic stock and schedule.
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 Desi gnated 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 c oncerning estimates and schedules , construction budgets, changes
in the Work, and execution of Change Orders, C ontract Modifications or Change Directives,
and shall render such decisions promptly and furnish information expeditiously, so as to avoid
unreasonable delay in the services or performance of the Work of the Design-Builder. In order
for the Department to effectively manage the Project and assure that the Design-Builder does
not receive conflicting instructions regarding the Work, the Design-Builder shall promptly
notify the Department’s representative upon receiving any instructions or other communication
in connection with the Design-Builder’s Work from any employee of the Department or other
purported agent of the Department other than the Department’s designated representative.
Section 6.2 Design-Builder’s De signated 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 De sign-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 Se rvices. The Preconstruction Fee shall
include, but not be limited to, amounts necessa ry to compensate the Design-Builder
for:
x Profit;
x Home Office Overhead;
x Fringe Benefits associated with staff cost;
x Payroll taxes associated with staff costs;
x Staff costs associated with obtaining permits and approvals
during the Design & Preconstruction Phase;
x Out-of-house consultants;
x Travel, Living, and Relocation expenses;
x Job vehicles;
x Office equipment including but not limited to:
o Computer hardware and software;
o Fax machines; and
o Copying machines;
x Office supplies;
x Telephone; and
x 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 Desi gn-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 & Preconstr uction Phase Services shall be
made monthly over the anticipated du ration of the Design & Preconstruction
Phase following presentation and accepta nce 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.
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Section 7.2.2 Payments are due and payable in accordance with Article 12 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 its 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 propose a lump sum amount for the General Conditions Cost,
and this lump sum amount shall be the extent of what the Design-Builder is entitled to recover
for the cost of General Conditions (such cost, the “Lump Sum General Conditions Cost”). The
Lump Sum General Conditions Cost shall not be increased or decreased as a result of Change
Orders or Change Directives unless such changes: (i) extend the duration of the Project beyond
the time Substantial Completion Date; and (ii) the Design-Builder can demonstrate to the
satisfaction of the Department that such additional General Conditions costs are necessary and
not due to any fault of the Design-Builder, its subcontractors, materi almen, consultants or
anyone making claims thereunder. To the extent the Design-Builder incurs General Conditions
Costs in excess of the Lump Sum General Condi tions Cost, the Design-Builder shall not be
entitled to reimbursement for such amounts unl ess the Department authorizes, by written
Contract Modification, an increase to the Lump Sum General Conditions Cost. Nonetheless, in
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such an event, if the Design-Builder exceeds the Lump Sum General Conditions Cost, the
Design-Builder shall continue to be required to adequately st aff the Project and provide all
Construction Services.
Section 8.3 Initial Not-to-Exceed Amount.
Unless and until the GMP Amendment is executed and approved by the Council for the
District of 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
Exhibit X. In no event shall the Design-Builder be entitled to recover more than the Initial
NTE unless the Design-Builder is authorized to exceed the Initial NTE by the Department in
advance and in writing. Prior to expending or committing any portion of the Initial NTE, the
Design-Builder shall obtain the Department’s written approval of such expenditure or
commitment, as well as a determination as to whether the work will qualify as a “capital”
expense under the Department’s financial guidelines to the ex tent capital money is to be
expended. In making such a request, the Desi gn-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 8.5 Project Budget.
8 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 whic h 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 sha ll inform the Department’s
Contracting Officer at least fifteen (15) calen dar days in advance, if the Design-Builder
encounters any foreseen or unforeseen project-re lated 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 A1 by the Client Agency and the Project
Budget as set forth herein (i.e. designed to budget), to allow for Substantial Completion of the
Work to be achieved no later than the Substantial Completion Date. The Design-Builder shall
be entitled to an adjustment to the Design-Build Fee at the time the GMP is established to the
extent, and only to the extent, that: (i) the Department makes additions to the scope that, when
measured relative to the program, cause the GMP to exceed the Design-Builder’s original
concept estimate by more than five percent (5%); or (ii) the Department makes additions to the
scope provided for herein which (other than for punchlist or warranty work) which requires the
Design-Builder’s services at the Project to ex tend 30 days or more beyond the Substantial
Completion Date. With regard to Change Orders issued after the GMP is established, and in
accordance with Section 18.8, the Design-Builder shall be entitled to an increase in the Design-
Build Fee to the extent, and only to the extent , that: (i) the Department has added a new
programmatic element to the Project; or (ii) the Department made additions to the GMP scope
which (other than punchlist or warranty work) require the Design-Builder’s services at the
Project to extend 30 days or more beyond the Substantial Completion Date.
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Section 8.6 Reserved
Section 8.7 Direct Cost of Work
“Direct Cost of the Work” shall mean la bor, material, and other costs reasonably and
necessarily incurred in the proper perfo rmance of the Work as approved by the
Department and shall include, but not be limited to:
Section 8.7.1 Labor. Payment will be made for direct labor costs plus indirect
labor costs such as insurance, taxes, fringe benefits and welfare provided such
costs are considered reasonable. Indirect costs shall be itemized and verified by
receipted invoices. If verifi cation 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 r eceipted 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 act ual 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 does not, however, include home office
overhead, field supervision, general c onditions, or profit of either the
Subcontractor or the Design-Builder. No personnel above the level of a working
foreman shall be considered a Direct Cost of the Work.
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Article 9 - COST OF THE WORK FOR CONSTRUCTION PHASE
Section 9.1 Cost of the Work.
The term “Cost of the Work” shall mean the costs necessarily incurred by the Design-
Builder in the proper performance of the Work and shall include only the following:
Section 9.1.1 Payments made by the Design-B uilder to Subcontractors and
suppliers, other than design subconsultant s, but only in accordance with the
subcontracts and supply agreements;
Section 9.1.2 Payments made by the Design-Build er to its design consultants and
sub-consultants; provided, however, th at 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 actua lly paid to Project foremen,
construction workers, and other personne l 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 th e 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, utilitie s abandonment, and utility relocation
(including utility connection fees), incl uding any and all building and/or trade
permits fees;
Section 9.1.6 All performance and paymen t bonds and general liability
insurance. The Department may, in its sole discretion, allow the Design-Builder
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to recover the costs of subcontractor default insurance at a mutually agreed-
upon rate in lieu of trade level bonds, provided that such insurance be approved
by the Department in advance and after being presented with a cost-benefit
analysis of such use;
Section 9.1.7 All fees and other costs necessarily incurred to carry out testing
and inspection required by the Agreement or applicable laws, or otherwise to
maintain proper quality 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 correc ting damaged or nonconforming
Work executed by the Design-Builder’s Architect, or Design-Builder’s other
consultants, Subcontractors, or supp liers, provided that such damaged or
nonconforming Work was not caused by negl igence 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 Design-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.
9 The Contractor’s Lump Sum General Conditions Cost shall be the extent of what the
Contractor is entitled to recover for the co st of General Conditi ons. General Conditions
may include, but are not limited to:
10
a) Cost of construction staff. Only sta ff stationed in the field are reimbursable;
b) Fringe Benefits associat ed with construction staff;
c) Payroll taxes and payr oll insurance associated with construction staff;
d) Staff costs associated with obtaining permits and approvals;
e) Out-of-house consultants, including permit expeditors;
f) Job vehicles;
g) The field office(s) for the Design-Builder and Department, including, but not
limited to: (i) trailer purcha se and/or rental; (ii) field office installation,
relocation and removal; ( iii) utility connections and charges during the
Construction Phase; (iv) furniture; and (v) office supplies;
h) Office equipment including, but not li mited to: (i) computer hardware and
software; (ii) fax machines; (iii) copying machines; (iv) telephone installation,
system and use charges; and (v) Job radios;
i) Local delivery and ove rnight delivery costs;
j) Field computer network;
k) First aid facility;
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l) Printing cost for drawings, bid packages, etc.;
m) BIM Cost (software, seats, hardware);
n) Parking costs for the construction staff;
o) Salting sidewalks and shoveling snow on sidewalks that surround the site; and
p) Exterior site fencing, fe nce 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) Any personnel or labor costs other than those provided for in Section 9.1.3 (a).
b) Fees for any permits or licenses the Design-Builder requires to conduct its
general business operations.
c) Capital expenses and interest on capital employed for the Work.
d) The cost of home or regional offices, it being understood that compensation for
such costs included in the Design-Build Fee.
e) Sales or use taxes unless the Design-Builder establishes that applicable law
required payment of such taxes.
f) Costs due to the errors or omissions of the Design-Builder or its 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 Desi gn-Builder. Trade discounts, rebates,
refunds and amounts received from sales of surplus materials and equipment
shall accrue to the Department, and th e Design-Builder shall make provisions
so that such amounts can be secured.
Section 9.4.2 Amounts that accrue to the Depa rtment 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 wi ll qualify as tax-exempt under applicable
laws. Upon request, the Depar tment will provide the Design- Builder with the necessary
information relating to the tax exemption. In the event that any savings are attributable to the
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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 detaile d 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
the Design-Builder’s records, books, corresp ondence, instruction, drawings, receipts,
subcontracts, purchase orders, vouchers, memoranda , and other data relati ng 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 turn-key solution for the
implementation of the Project, and the budget set herein has b een developed based on such a
framework. The Design-Builder shall advance the Project in a manner consistent with the such
budget and the understanding that only the commissioning cost element is excluded from the
budget set forth herein.
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11 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 si ngle, insolated effort such as dumpster disposal and safety
carpentry. The Department at its sole and absolute discretion may elect to increase the retention
of any trade Subcontractor up to ten percent (10%), in the event the Department determines
that the situation so warrants. The Department also in its sole and absolute discretion, may
elect to reduce the retainage relating to a particular trade Subcontractor, or the Cost of the
Work-related to a specific item 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 Stored Materials.
The Department shall not be required to pay for materials st ored 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
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bills of sale. Payment for st ored materials shall be conditi oned also on the Design-Builder’s
representation that it has inspected the mate rial 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 shall be
required, inter alia, to agree to the execution of proper Project documentation to afford the
Department a secured interest in the materials upon payment.
Section 10.4 Design-Builder’s Certification.
Each Application for Payment shall be ac companied by the Design-Builder's signed
certification that:
Section 10.4.1. all amounts paid to the Design-Builder on the previous Application for
Payment that were attributable to Subcontract or Work or to materials or equipment being
supplied by any supplier have been paid over to the appropriate Subcontractors and suppliers;
Section 10.4.2. that all amounts currently sought fo r Subcontractor Work or supply of
materials or equipment are currently due and owing to the Subcontractors and material or
equipment suppliers;
Section 10.4.3. that all Work, materials or equi pment for which payment is sought is,
to the best of the Design-Builder's knowle dge, free from defect and meets all of the
requirements set forth in the Agreement;
Section 10.4.4. that the Design-Builder’s subcontracts include the clauses required by
subparagraphs (1) through (4) of D.C. Official Code §2-221.02(d) (2017); and
Section 10.4.5. The Design-Builder shall not include in an Application for Payment
amounts for Work for which the Design-Builder does not intend to pay.
Section 10.6 Lien Waivers.
Each Application for Payment shall be accompanied by written waivers of the right to
file a mechanic’s lien and all other claims, in a form substantially similar to Exhibit K for the
Design-Builder and all Subcontr actors 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 paymen t 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 pa ss to the Department,
without liens, claims, or other encumbrances, upon the receipt of payment by the Department.
The Department may require execution of appr opriate 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.
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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 sha ll be due and payable on the la st 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 Applica tion 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 fals e 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 the GMP would not be adequate to cover act ual or liquidated
damages arising from the anticipated delay; or
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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 Paym ent”) 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 comple te set of product manua ls (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 determ ines appropriate, the
Department’s accountants. The Department shal l make Final Payment no t 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 pr evious payments made by the
Department. (If the aggregate of prev ious payments made by the Department
exceeds the amount due the Design-Builder, the Design-Builder shall promptly
reimburse the difference to the Department).
Section 10.12.1.4 The Final Payment shall take into account any savings
accruing to the Department or the Design-Builder.
Section 10.12.1.5 The Department will review and report in writing on the
Design-Builder’s final accounting within 30 days after delivery of the final
accounting to the Department by the Design-Builder. Based upon Department’s
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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 th e 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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12 Article 11 - INSURANCE
Section 11.1 Insurance Required by the Project
A. GENERAL REQUIREMENTS. The Contractor at its sole expense shall procure and
maintain, during the entire period of pe rformance 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 re quired 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 th is contract, with the unders tanding 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 a ny deductible or retention, maintained by an Additional
Insured) for all claims against the additiona l 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 subcontractor s 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 Co ntractor and under all subcontracts,
covering claims for bodily injury, includi ng without limitation sickness, disease or
death and mental anguish of any persons, broad form property damage, including loss
of use resulting therefrom, personal and advertising injury, and including coverage for
liability arising out of an Insured Contract (including the tort liability of another assumed
in a contract) and acts of terrorism (whether caused by a foreign or domestic source). Such
coverage shall have limits of liability of not less than $1,000,000 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 in sureds 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 covera ge 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 Contr actor in connection with work under this
agreement, with a minimum combined single limit of $1,000,000 for bodily injury or
death and property damage, including loss of use thereof. Such policy or policies of
automobile liability insuranc e 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 e xplosion; 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 in sureds shall apply on a primary and
non-contributing basis as respects any other insurance, deductibles, or self-
insurance available to the additional insureds.
c. A waiver of subrogation in favor of The Government of the District of
Columbia.
d. Defense costs shall be in addition to and not erode the limits of liability.
e. If applicable, include Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Busine ss 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
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 St ates 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, netw ork security failure, violation of any
consumer protection laws, unauthorized ac cess 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 an d 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 fo rensic 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 th e Government of the District of Columbia and that
continuous coverage will be maintained or an extende d 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 sh all be written in a form th at 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
insurance” provision must be amended in accordance w ith this requirement and
principles of vertical exhaustion.
7. Installation-Floater Insurance - For projects not involving structural alterations, the
contractor shall provide an installation floater policy with a limit equal to the Property
values being installed as pa rt of the project. The polic y shall cover property while
located at the project site, at temporary locations, or in transit; deductibles will be the
sole responsibility of the contractor.
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 $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 polic y 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 th e Contractor for losses
arising from facility(ies) accepting, storing or disposing hazardous materials or
other waste as a result of the Contracto r’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. Sexual/Physical Abuse & Molestation - Th e 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. Cove rage should include physical abus e, 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 endor sement for the required amounts or
through a separate stand alone sexual abus e and molestation policy with confirmation
there are no exclusions for abuse or assa ult & battery under the General Liability. So
called “silent” coverage or “shared” limits under a comme rcial 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 ordna nce 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 insurance requi red of Contractor. Should the Contractor
wish to propose different insurance requireme nts than outlined below, then, prior to
commencement of work by the subcontractor, the Contractor shall submit in writing
the name and brief description of work to be performed by the subcontractor on the
Subcontractors Insurance Re quirement Template provide d 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 provi de 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 minimu m 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 stru ctures, 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 fo r 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 ensu re 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. Th e Contractor shall
provide the CO with ten (10) days prior written notice in the event of non-payment of
premium. The Contractor will also provide the CO with an updated Certificate of
Insurance should its insurance coverages re new during the contract. The Government
of the District of Columbia may reasonab ly change the above insurance coverage
requirements during the Term by giving Cont ractor at least 30 days’ notice of the
change. Contractor must comply, at your expe nse, and deliver to the CO evidence of
compliance before the change becomes effective.
J. CERTIFICATES OF INSURANCE. The Contractor must send to CO, at least 10 days
after execution of this Agreement, certificates of insurance evidencing the required
insurance coverage and endorsements required herein. Contractor must also provide us
with evidence of renewal before the expiration date of each insurance policy. Contractor
is responsible for providing us with 30 days advanced written notic e if the certificate
of insurance by the insurer has been canceled, reduced in coverage, or otherwise altered.
. Certificates of insurance must refe rence 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 sha ll promptly deliver updated certificates of
insurance, endorsements indi cating 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 prio r 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 ag ainst The Government of the District of
Columbia for any damages or claims resulti ng 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 Contr actor should be named as an additional
insured on the applicable manufacturer’s/distributer’s Commercial General Liability
policy using Insurance Services Office, Inc. (“ISO”) form CG 20 15 04 13 (or another
occurrence-based form with coverage at least as broad). CO should collect, review for
accuracy, and maintain all warranties for goods and services.
Article 12- BONDS
Section 12.1 Performance Bond and Payment Bond.
The Design-Builder shall, before commenci ng the Construction Phase, provide to the
Department a payment bond and performance bond, each with a pe nal 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 Depar tment shall be able to draw upon such bond
regardless of the amount paid by the Department to the Design-Builder, even if such amount
exceeds the penal value of such bond. Unless otherwise directed by the Department, the
Design-Builder shall require all Subcontractors whose Subcontract prices exceed One Hundred
Thousand Dollars ($100,000) to provide payment and performa nce bonds, with a penal sum
equal to one hundred percent (100%) of the subc ontract 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 a nd 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-Bu ilder and the Department as dual obligees.
If the GMP 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 obligee under any trade Subcontractor’s bond, it
shall first give the Department twenty (20) days written notice, so that the Department may
lodge any objection it may reasonably have to the proposed action.
Article 13 - ECONOMIC INCLUSION REQUIREMENTS
Section 13.1 LSDBE Utilization.
If the Design-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 supplie rs shall be counted toward
meeting this goal. The Design-Bu ilder has developed a Subcontrac ting Plan that is attached
hereto as Exhibit D . The Design-Builder shall comply with the terms of the SBE
Subcontracting Plan in making purchases a nd administering its subcontracts and supply
agreements.
Section 13.2 Mandatory Subcontracting Requirements
Section 13.2.1 Unless the Director of the Depar tment of Small and Local Business
Development (DSLBD) has approve d a waiver in writing, in acco rdance with D.C. Official
Code § 2-218.51, for all contracts in excess of $250,000, at least 35% of the dollar volume of
the contract shall be subcontracted to qualified SBEs.
Section 13.2.2 If there are insufficient SBEs to completely fulfill the requirement of
Section 13.2.1, then the subcontracting may be satisfied by subcontracting 35% of the dollar
volume to any qualified certified business ente rprises (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
disadvantaged business enterprise shall not be required to comply with the provisions of
Section 13.2.1 and Section13.2.2.
Section 13.2.4 Except as provided in Section 13.2.1 and Section 13.2.2 , a prime
contractor that is a CBE and has been granted a proposal preference pursuant to D.C. Official
Code § 2-218.43, or is selected through a set-as ide 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 cer tified 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.
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.
13.2.7. 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 50% of the on-site work with its own organization and resources if the contract
is $1 million or less.
13.2.8. Furniture Fixtures & Equipment (FF&E).
The Contractor shall ensure that maximum competition is sought for the Project’s FF&E
requirements. Additionally, the Contractor shall ensure that qualified vendors certified by the
District’s Department of Small and Local Business Development as small SBEs are provided
an opportunity to offer a bid/proposal for any of the Project’s FF&E requirements. Qualified
vendors can be found on the District’s Office of Contracting Procurement’s (OCP) District of
Columbia Supply Schedule (DCSS) in the Fu rniture and Furniture Management category
(https://ocp.dc.gov/page/dcss). The Contractor shall ensure that a minimum of three (3)
qualified SBE vendors are provided the FF&E bid package. The Contractor shall document
the distribution of the bid package to all vendors and responses received, including no-bids in
the FF&E Bid Package. Upon selection, the C ontractor shall provide an FF&E Selection
Summary to the PM and CO. The FF&E Selection Summary shall include, at a minimum, the
identification of all vendors pr ovided an opportunity to submit a bid/proposal, pricing of
bid/proposals received, identifica tion of selected vendor with a brief explanation of how the
decision was reached, and any other information re levant to the procurement of the Project’s
FF&E vendor.
Section 13.3 Subcontracting Plan (Exhibit D)
If the Design-Builder is required by law to subcontract under this Agreement, then the
subcontracting plan submitted with its Proposal , may only be amended with the prior written
approval of the Contracting Officer and Director of DSLBD, as previously stated herein; and,
any reduction in the dollar volume of the subc ontracted portion resulting from an amendment
of the Subcontracting Plan shall inure to the be nefit 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 r eceive 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 Audito r and the Director of DSLBD to provide an
update on its subcontracting plan.
Section 13.7 DSLBD Notices
The Contractor shall provide written notice to the DSLBD and the District of Columbia
Auditor upon commencement of the contract and when the contract is completed.
Section 13.8 Enforcement and Penalties for Breach of Subcontracting Plan
Section 13.8.1 A contractor shall be deemed to have breached a subcontracting plan
required by law if the contractor (i) fails to submit subcontracting plan monitoring or
compliance reports or other required subcontracting information in a reasonably timely
manner; (ii) submits a monitoring or compliance report or other required subcontracting
information containing a materially false statement; or (iii) fails to meet its subcontracting
requirements.
Section 13.8.2 A contractor that is found to have breached its subcontracting plan for
utilization of CBEs in the performance of a contract shall be subject to the imposition of
penalties, including monetary fines in accordance with D.C. Official Code § 2-218.63.
Section 13.8. 3 If the CO determines the Contractor’s failure to be a material breach
of the contract, the CO shall have cause to terminate the contract under the default provisions
in Article 16 of the Contract.
Section 13.8.4 Neither the Design-Builder nor a Subcontractor may remove a
Subcontractor or tier-Subcontractor if such Subcontractor or tier-Subcontractor is certified
as an LSDBE company unless the Department approves of such removal, in writing. The
Department may condition its approval upon the Design-Builder developing a plan that is,
in the Department’s sole and absolute judgment, adequate to maintain the level of LSDBE
participation in the Project.
Section 13.9 Equal Employment Opportunity and Hiring of District Residents
Section 13.9.1 For contracts for services in the amount of $300,000 or more, the
Design-Builder shall comply with the Firs t 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 ( Exhibit V ) with the District of
Columbia Department of Employment Services (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 promulga ted 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 appr entice 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 co mmon laborer hours shall be performed by
District residents.
Section 13.9.4 The Design-Builder shall not begin the performance of the Contract
until its Employment Agreement has been accepted by DOES. Once approved, the
Employment Agreement shall not be amended except with the approval of DOES.
Section 13.9.5 The Design-Builder agrees that at least 51% of the new employees
hired to perform the Contract shall be District residents. The Design-Builder shall ensure
that at least fifty-one percent (51%) of the Design-Builder and every sub-consultants and
subcontractor’s employees hired after the effective date of the Agreement, or after such
subconsultant or subcontractor enters into a contract with the Design-Builder, to work on
the Project shall be residents of the District of Columbia. This percentage shall be applied
in the aggregate, and not trade by trade.
Section 13.9.6 The Contractor’s hiring and re porting requirements under the First
Source Act and any rules promul gated 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 i ndirect labor costs of the Cont ract, 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 th e Contract for each percenta ge 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 Bo ard located at 441 4th Street, NW, Suite 350N,
Washington, DC 20001.
Section 13.9.11 The provisions of the First S ource Act do not apply to nonprofit
organizations which employ 50 employees or less.
Section 13.9.12 Construction projects or contra cts covered by this Section 4.2.8 of
the Contract shall be subject to the hiring and reporting requirements set forth in this
Section until construction is completed and a final certificate of occupancy has been issued.
Section 13.10 Economic Inclusion Reporting Requirements
Section 13.10.1 Upon execution of the Agreement, the Design-Builder and all its
member firms, if any, and each of its 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 pr omulgated 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 District of Columbia and community residents.
Section 13.10.4 The Design-Builder shall be res ponsible 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, Exhibit Q, as amended (codified at D.C. Official
Code §§ 2-220.01 et seq.) and its implementing regulations.
Section 13.10.7 Apprenticeship Act. The D.C. Apprenticeship Act of D.C. Law
2-156, (as amended, the Act) may apply to thes e Projects. As applicable, the Design-
Builder firms and their subcontractors sele cted 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. Apprenticeshi p Council Rules and Re gulations shall be
implemented, and the selected Design-Builder firms shall be liable for any
subcontractor non-compliance. Thirty five percent (35%) of all apprentice hours
worked on the Project shall be worked by District residents.
Section 13.11 WAY TO WORK AMENDMENT ACT OF 2006
Section 13.11.1. Except as described in Section 13.14.8 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.
Section 13.11.4 The DOES may adjust the living wage annually a nd 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 require d 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 bargaini ng 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 agreemen ts 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 em ployed 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 construc ted or improved by
receipt of government assistance from the District of Columbia; provided, that the tenant or
retail establishment did not receive direct government assistance from the District;
(8) Employees of nonprofit organizations that employ not more than 50 individuals and
qualify for tax exemption pursuant to section 501(c)(3) of the Internal Revenue Code of 1954,
approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(3);
(9) Medicaid provider agreements for direct care services to Medicaid recipients, provided,
that the direct care service is not provided through a home care agency, a community residence
facility, or a group home for mentally retarded persons as those terms are defined in section 2
of the Health-Care and Community Residence Facility, Hospice, and Home Care Licensure
Act of 1983, effective February 24, 1984 (D.C. Law 5-48; D.C. Official Code § 44-501); and
(10) Contracts or other agreements between ma naged 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 contract or 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 Mentor- Protégé Partnership
The Design-Builder has completed a Mentor-P rotégé Partnership Agreement, as set
forth in Exhibit Z. The Design-Builder shall be required to adhere to all requirements in the
signed Mentor-Protégé Partnership Agreement regarding such partnership from the time of
award through the Final Completion Date. The Design-Builder agrees and acknowledges that
the Mentor-Protégé Partnership Agreement represents that the Design-Builder is committing
to all mandatory reporting and participation requirements. Partnership monitoring and
acceptance of reporting during the Project shall be at the sole discretion of the CBE Inclusion
Officer. Failure by the Design-Builder to maintain an approved Mentor-Protégé
Partnership in accordance with the Mentor-Protégé Partnership Agreement at any time
during the Project shall result in a penalty of five percent (5%) of the Design-Builder’s
Lump Sum General Conditions (“Mentor-Protégé Penalty”).
Section 13.13 SPECIAL PROVISIONS RELATED TO THE COVID-19
EMERGENCY
Section 13.1.1 The Contractor is required to comply with Mayor’s Order 2021-099,
COVID-19 Vaccination Certification Re quirement for District Government
Employees, Contractors, Interns, and Grantees, dated August 10, 2021, and all
substantially similar vaccine requirements, including any modifications to this Order,
unless and until they are rescinded or superseded. At the request of the District
government, Contractors may be asked to provide certification of compliance with this
requirement and/or documents and records in support of this certification.
Article 14 - LIQUIDATED DAMAGES
Section 14.1 Reserved.
Section 14.2 Delay in Substantial Completion.
If the Design-Builder fails to achieve Substantial Completion of the Project by the
Substantial Completion Date, the Parties acknowledge and agree that the actual damage to the
Department for the delay will be impossible to determine, and in lieu thereof, the Design-
Builder shall pay to the Department, as fixed, agreed and liquidated delay damages in the
amount set forth in the Project Information Section of this Agreement per day for each calendar
day of delay for failure to meet the applicable Substantial Completion Date.
The Design-Builder and the Department agree that the liquidated damages set forth in
this Article do not constitute, and shall not be deemed, a penalty but represent a reasonable
approximation of the damages to the Department associated with a delay in the Project. These
damages shall not apply if the delay is the result of force majeure and the Design-Builder
otherwise complies with the provisions set forth in the Standard Contract Provisions
(Construction Contracts and Architectural/Engineering Services Contracts).
Section 14.3 Early Completion. In the event the Design-Builder achieves Substantial
Completion of the Project prior to the Substantial Completion Date, the Design-Builder shall
maintain the completed Project, at its own expense, until such time that the Department agrees
to occupy and use the Project for its intended use.
Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1 Ownership and Use of Project Documents. The Drawings, Specifications, and
other Project Documents prepared by the Desi gn-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 outsi de 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-Build er respectively bind themselves, their partners, members,
joint venturers, constituent entities, successors, a ssigns and legal representatives to the other
party hereto and to partners, members, joint venturers, constituent entities, successors, assigns,
and legal representatives of su ch 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, m eans those articles, ma terials and supplies
incorporated directly into the end products.
“Domestic end product”, as used in this section, means, (1) an unmanufactured end
product mined or produced in the United States, or (2) an end product manufactured in
the United States, if the cost of its components mined, produced, or manufactured in
the United States, exceeds 50 percent of the cost of all its components.
Components of foreign origin of the same class or kind as the products shall be treated
as domestic. Scrap generated, collected, and prepared for processing in the Unites States
is considered domestic.
“End Products”, as used in this Section, means those articles, materials, and supplies to
be acquired for public use under this Contract.
The Design-Builder shall deliver only domestic end products, except those:
1. For use outside the United States;
2. That the District determines are not mined, produced, or manufactured in the
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 a
minimal use of foreign steel is permitted. The cost of such materials cannot
exceed one-tenth of one percent of the total project cost or $2,500,000,
whichever is greater.
Section 15.4 Davis-Bacon Act Provision.
The Design-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”) Exhibit G2. The wage rates applicable to this Project are
attached as Exhibits G1 and G2 . The Design-Builder further agrees that it and all of its
subcontractors shall comply with the regulations implementing the Davis-Bacon Act and Title
29 CFR 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 Paymen t Act, D.C. Official Code §2-221.01 et seq ., as
amended, for the period beginning on the day afte r 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 require d payment date. The required
payment date shall be:
a. The date on which payment is due under the terms of the Contract;
b. Not later than 7 calendar days, excluding legal holidays, after the date of delivery of
meat or meat food products;
c. Not later than 10 calendar days, excluding le gal 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 pa rt of the subcontractor’s payment and
state the reason for the nonpayment.
Section 15.5.2.2 The Design-Builder must pay any s ubcontractor or supplier interest
penalties on amounts due to the subcontractor or supplier be ginning on the day after the
payment is due and ending on the date on whic h the payment is made. Interest shall be
calculated at the rate of 1.5% per month. No in terest 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-Build er and subcontractor relating to
the amounts or entitlement of a subcontractor to a payment or a late pa yment interest penalty
under the Quick Payment Act does not constitute a dispute to which the District of Columbia
is a party. The District may not be interpleaded in any judicial or administrative proceeding
involving such a dispute.
Section 15.5.3 Subcontractor Quick Payment Clause Flow-Down Requirements
Section 15.5.3.1 The Design-Builder shall include in each subcontract under this
Contract a provision requiring the subcontractor to include in its contract with any lower-tier
subcontractor or supplier the pa yment and interest clauses re quired under paragraphs (1) and
(2) of D.C. Official Code §2-221.02(d).
Section 15.5.4 Requirements for Change Order Payments
Section 15.5.4.1 The Department and the Design-Builder are prohibited from requiring
the a Prime Contractor or a subcontractor to undertake any work that is determined to be beyond
the original scope of the Prime Contractor's or a subcontract or's contract or subcontract,
including work under a Dist rict-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 Fina ncial 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 subcontract or based on the portion of th e 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 pa yment from a subcontractor, notify the
subcontractor in writing and state the reas on why payment is being withheld and
provide a copy of the notice to the CO.
Section 15.5.4.3 The Department, Design-Builder, Design-Builder Architects, or a
subcontractor are prohibited from declaring another party to the contract to be in default or
assessing, claiming, or pursuing damages for delays in the completion of the construction due
to the inability of the parties to agree on a price for the additional work.
Section 15.5.4.4 Authorized Changes By The Contracting Officer
a. The CO is the only person authorized to approve changes in any of the requirements of
this Contract.
b. The Design-Builder shall not comply with any order, directive, or request that changes
or modifies the requirements of this Contract unless issued in writing and signed by the
CO.
c. In the event the Design-Builder effects any ch ange 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 appli cable 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 fals e 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 Contra ct 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 th e 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, Cha nge Orders, Change Directives and any
Exhibits thereto;
2. The Department’s Standard Contract Provisions (Construction Contracts and
Architectural/Engineering Services Contract s), 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 Independe nt Contractor. The Design-Builder and the Design-
Builder’s employees: (1) shall perform the se rvices specified herein as independent
contractors, not as employees or agent of th e 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 re quirements or constrai nts 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 pe rformance of the service specified; but (4)
shall, pursuant to the government’s right a nd obligation to inspect, accept or reject
work, comply with such general direc tion of the CO, or the duly authorized
representative of the CO as is necessary to ensure accomplishment of the Agreement
objectives. The Design-Builder shall have exclusiv e authority to manage, direct, and
control the work, and shall be responsib le for all means, methods, techniques,
sequences, and procedures, as well as for Project safety.
Section 15.10 No Third-Part y 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 have been discussed with
the Department prior to its issuance.
Section 15.12 Construction. This Agreement shall be construed fairly as to
all Parties and not in favor of or against any party, re gardless 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 recipien t may have designated in writing. Any such
notice or communication shall be deemed de livered 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 Tyler Swartzwelder
and Chief Procurement Officer Vice President, DC Business Leader
Department of General Services Gilbane Building Company
3924 Minnesota Avenue NE, 5th Floor 1100 North Glebe Road | Suite 1000
Washington, DC 20019 Arlington, VA 22201
This Section shall be read as imposi ng 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 a pplicable law, the waiver shall not be
deemed to be a waiver of the power, right, or remedy on the later recurrence of any
similar events. No act, delay, or course of conduct by the Department shall be deemed
to constitute the Department's waiver, which may be effected only by an express written
waiver signed by the Department.
Section 15.17 Remedies Cumulative. Unless specifically provided to the
contrary in the Agreement, all remedies set forth in the Agreement are cumulative and
not exclusive of any other remedy the Department may have , including, without
limitation, at law or in equity. The Department's rights and remedies will be exercised
at its sole discretion, and shall not be re garded as conferring any obligation on the
Department to exercise those rights or reme dies 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 fo r convenience only and shall not be used in
interpreting the Agreement.
Section 15.19 Entire Agreem ent; Modification. The Agreement supersedes
all contemporaneous or prior ne gotiations, 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 provide d to the contrary in the Agreement. Notwithstanding the
foregoing, nothing herein shall be construed to limit the Departme nt’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 pr ovision, there shall be
added automatically as a part of this Agreement a provision as similar in terms to such invalid,
illegal or unenforceable provision as may be possible and be valid, legal and enforceable; each
part of this Agreement is intended to be severable.
Section 15.21 Anti-Deficiency Acts . The obligations and responsibilities of the
Department under the terms of the Agreement, or any subsequent agreement entered into
pursuant to this Agreement or referenced herein (to which the Department is a party), are and
shall remain subject to the provisions of: (i) the federal Anti-Deficiency Act, 31 U.S.C. §§
1341, 1342, 1349-1351, 1511-1519 (2004) (the “Federal ADA”), and D.C. Official Code §§
1-206.03(e) and 47-105 (2001); (ii) the District of Columbia Anti-Deficiency Act, D.C. Official
Code §§ 47-355.01 – 355.08 (2004 Supp.)(the “ D.C. ADA” and (i) and (ii) collectively, as
amended from time to time, the “Anti- Deficiency Acts”); and (iii) Section 446 of the District
of Columbia Home Rule Act, D.C. Official Code § 1-204.46 (2001). Pursuant to the Anti-
Deficiency Acts, nothing in this Agreement shall create an obligation of the Department in
anticipation of an appropriation by Congress for such purpose, and the Department’s legal
liability for payments and other charges under this Agreement shall not arise or obtain in
advance of the lawful availability of appropriated funds for th e 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 nece ssary to fund the Department’s known potential
financial obligations under this Agreement for such fiscal period. In the event that a request for
such appropriations is excluded from the budg et approved by the Council and submitted to
Congress by the President for the applicable fiscal year or if no appr opriation 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 appropr iated funds for such purposes
are not otherwise lawfully available, the Department will not be liable to make any payment
under this Agreement upon the expiration of any then-existing appropriation, the Department
shall promptly notify the Contractor and this Agreement shall immediately terminate upon the
expiration of any then-existing appropriation.
Section 15.21.2 Notwithstanding the foregoing, no officer, employee, director, member
or other natural person or agent of the District or Department shall have any personal liability
in connection with the breach of the provisions of this Section or in the event of non-payment
by the Department under this Agreement.
Section 15.21.3 This Agreement shall not constitute an indebtedness of the District
and/or the Department nor shall it constitute an obligation for which the Department is
obligated to levy or pledge any form of taxation or for which the District has levied or pledged
any form of taxation. No District of Columbia Official or employee is authorized to obligate
or expend any amount under this Agreement unless such amount has been appropriated by Act
of Congress and is lawfully available.
Section 15.22 Time. Time, if stated in a number of days, will be calendar days
and thus include Saturdays, Sundays, and holidays, unless otherwise stated herein.
Section 15.23 Americans With Disabilities Act of 1990 (“ADA”). During the
performance of this Contract, the Design-Builder and any of its 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 an y 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 otherw ise) were offered or given by
the Design-Builder, or any agent or represen tative of the Design-Builder, to any official,
employee or agent of the Department or the District with a view toward securing the
Agreement or any other contract or securing favorable treatment with respect to the awarding
or amending, or the making of any determinations with respect to the performance of the
Agreement, the Department may, by written notice to the Design-Builder, terminate the right
of the Design-Builder to proceed under the Agreement and may pursue such other rights and
remedies provided by law and under the Agreement.
Section 15.26.1 In the event the Agreement is terminated as provided in Article 16 of
this Agreement, the Department shall be entitled:
a. to pursue the same remedies against the Design-Builder as it could pursue in the event
of a breach of the Agreement by the Design-Builder; and
b. as a penalty in addition to any other damages to which it may be entitled by law, to
exemplary damages in an amount (as determined by the Department) which shall be not less
than ten times the costs incurred by the Design-Builder in providing any such gratuities.
Section 15.26.2 No member of, nor delegate to Congress, Mayor or City Council
Member, nor the Department nor employee of the District or employee of the Department shall
be admitted to any share or part of the Agreement or to any benefit that may arise therefrom,
and all agreements entered into by the CO of the Department in which he or she be personally
interested as well as all agreements made by the Department in which the Mayor or City
Council Member or employee of the District shall be personally interested shall be void and
no payments shall be made on a ny 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 Me mber, or employee of the District is de
minimis.
Section 15.27 Ethical Standards for the Department's Employees And Former
Employees. The Department expects the Design-Bu ilder to observe the highest ethical
standards and to comply with all applicable laws, rules, a nd regulations governing ethical
conduct or conflicts of interest. Neither the Design-Builder, nor any person associated with the
Design-Builder, shall provide (or seek re imbursement for) any gift, gratuity, favor,
entertainment, loan, or other thing of value to any employee of the District or the Department
not in conformity with applicable law, rules or regulations. The Design-Builder shall not
engage the services of any person or persons in the employment of the Department or the
District for any work required, contemplated, or performed under the Agreement. The Design-
Builder may not assign to any former employee or District employee or agent who has joined
the Design-Builder’s firm any matter on which the former employee, while employed by the
Department, had material or s ubstantial involvement in the ma tter. The Design-Builder may
request a waiver to permit the assignment of such matters to former personnel on a case-by-
case basis. The Design-Builder shall include in every subcontract a provision substantially
similar to this section so that such provisions shall be binding upon each Design-Builder or
vendor.
Section 15.28 Non-Discrimination in Employment Provisions.
Section 15.28.1 District of Columbia Human Rights Act
a. The Design-Builder shall not discriminate in any manner against any employee or
applicant for employment that would constitute a violation of the District of Columbia Human
Rights Act, effective December 13, 1977, as amended (D.C. Law 2-38; D.C. Official Code §
2-1401.01 et seq.) (“Act”, as used in this clause). The Design-Builder shall include a similar
clause in all subcontracts, except subcontr acts for standard commercial supplies or raw
materials. In addition, the Design-Builder agrees, and any subcontractor shall agree, to post in
conspicuous places, available to employees and applicants for employment, a notice setting
forth the provisions of this non-discrimination clause as provided in Section 251 of the Act.
b. Pursuant to Mayor’s Order 85-85, (6/ 10/85), Mayor’s Order 2002-175 (10/23/02),
Mayor’s Order 2011-155 (9/9/11) and the rules of the Office of Human Rights, Chapter 11 of
Title 4 of the D.C. Municipal Regulations, the following clauses apply to the Contract:
1. The Design-Builder shall not discriminate against any employee or applicant
for employment because of race, color, religion, national origin, sex, age, marital status,
personal appearance, sexual or ientation, family responsibilitie s, 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, matric ulation, political a ffiliation, 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, conc erning non-discrimination and
affirmative action.
4. The Design-Builder shall, in all solicitations or advertisements for employees
placed by or on behalf of the Design-Builder, st ate that all qualified applicants will receive
consideration for employment pursuant to the non-discrimination requirements set forth in
Section 15.28.3.
5. The Design-Builder agrees to send to ea ch labor union or representative of
workers with which it has a collective bargaining agreement, or other contract or
understanding, a notice to be provided by the Department, advising each labor union or
workers' representative of the Design-Builder’s commitments under this Section 15.28.1, and
shall post copies of the notice in conspicuous places available to employees and applicants for
employment.
6. The Design-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 15.28.1 , and to require under terms of any
Subcontractor agreement each S ubcontractor to permit access of the Subcontractors, books,
records, and accounts for such purposes.
7. The Design-Builder shall include in every subcontract this Section 15.28.1
so that such provisions shall be binding upon each subcontractor or vendor.
8. The Design-Builder shall take such action with respect to any subcontract as
the CO may direct as a means of enforc ing these provisions, including sanctions for
noncompliance; provided, however, that in the event the Design-Builder becomes involved in,
or is threatened with, litigation with a Subcontractor or vendor as a result of such direction by
the Department, the Design-Builder may request the District to enter into such litigation to
protect the interest of the District.
Section 15.28.2 Pregnant Workers Fairness
a. The Design-Builder shall comply with the Protecting Pregnant Workers
Fairness Act of 2016, D.C. Official Code § 32-1231.01 et seq. (PPWF Act).
b. The Design-Builder shall not:
1. Refuse to make reasonable accommodations to the known limitations related to
pregnancy, childbirth, related medical conditions, or breastfeeding for an employee, unless the
Design-Builder can demonstrate that the accommodation would impose an undue hardship;
2. Take an adverse action against an employee who requests or uses a reasonable
accommodation in regard to the employee's conditions or privileges of employment, including
failing to reinstate the employee when the need for reasonable accommodations ceases to the
employee's original job or to an equivalent position with equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employee, or a job applicant, if the denial
is based on the need of the employer to make reasonable accommodations to the known
limitations related to pregnancy, childbirth, related medical conditions, or breastfeeding;
4. Require an employee affected by pre gnancy, childbirth, related medical
conditions, or breastfeeding to accept an acco mmodation that the employee chooses not to
accept if the employee does not have a known limitation related to pr egnancy, childbirth,
related medical conditions, or breastfeeding or the accommodation is not necessary for the
employee to perform her duties;
5. Require an employee to take leave if a reasonable accommodation can be
provided; or
6. Take adverse action against an employee who has been absent from work as a
result of a pregnancy-related condition, including a pre-birth complication.
c. The Design-Builder shall post and maintain in a conspicuous place a notice of rights
in both English and Spanish and provide written notice of an employee's right to a needed
reasonable accommodation related to pregnancy, childbirth, related medical conditions, or
breastfeeding pursuant to the PPWF Act to:
1. New employees at the commencement of employment;
2. Existing employees; and
3. An employee who notifies the employer of her pregnancy, or other condition
covered by the PPWF Act, within 10 days of the notification.
d. The Design-Builder shall provide an accurate written translation of the notice of
rights to any non-English or non-Spanish speaking employee.
e. Violations of the PPWF Act shall be subject to civil penalties as described in the
PPWF Act.
Section 15.28.3 UNEMPLOYED ANTI-DISCRIMINATION
a. The Design-Builder shall comply with the Unemployed Anti-Discrimination Act of
2012, D.C. Official Code § 32-1361 et seq. (“Anti- Discrimination Act”).
b. The Design-Builder shall not:
1. Fail or refuse to consider for employment, or fail or refuse to hire, an individual as an
employee because of the individual's status as unemployed; or
2. Publish, in print, on the Internet, or in any other medium, an advertisement or
announcement for any vacancy in a job for employment that includes:
i. Any provision stating or indicating that an individual's status as unemployed
disqualifies the individual for the job; or
ii. Any provision stating or indicating that an employment agency will not consider or hire
an individual for employment based on that individual's status as unemployed.
c. Violations of the Unemployed Anti-Discrimination Act shall be subject to civil
penalties as described in the Anti- Discrimination Act.
Section 15.29 ASSIGNMENT OF CONTRACT PAYMENTS
a. Subject to this Section 15.29, in accordance with Title 27 DCMR Section 3250, the
Design-Builder may assign due or to become due as a result of the performance of this Design-
Builder to a bank, trust company, or other financing institution funds.
b. Any assignment shall cover all unpaid amounts payable under this Agreement
and shall not be made to more than one party.
c. Notwithstanding an assignment of Contract payments, the Design-Builder, not the
assignee, is required to prep are 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 assi gnment dated ___________, make payment of this
invoice to (name and address of assignee).”
Section 15.30 FREEDOM OF INFORMATION ACT (“FOIA”)
The District of Columbia Freedom of Information Act, at D.C. Official Code § 2-532 (a-
3), requires the District to make available fo r 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 De sign-Builder. In either event, the Design-
Builder is required by law to provide all res ponsive records to the PM within the timeframe
designated by the PM. The FOIA Officer for the agency with programmatic responsibility will
determine the releasability of the records. The District will reimburse the Design-Builder for
the costs of searching and copying the records in accordance with D.C. Official Code §2-532
and Chapter 4 of Title 1 of the D.C. Municipal Regulations.
Section 15.31 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 Y,
pursuant to D.C. Official Code § 1-1161.01.
Section 15. 32. Equal Employment Opportunity (“EEO”)
Each Offeror shall submit an EEO policy form substantially in the form of Exhibit P.
Section 15.33 DGS Close Out Manual
Deliverables shall include those outlined in Exhibit T.
Section 15.34 NONPROFIT FAIR COMPENSATION ACT OF 2020, D.C. Code § 2-
222.01 et seq
Section 15.34.1 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 nonprof it organization's unexpired Nego tiated Indirect Cost Rate
Agreement (NICRA). If a nonprofit organiza tion does not have an unexpired NICRA, the
nonprofit organization may 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 percenta ge 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 2.13.2;
or
(4) As calculated with a percentage rate and base amount, determined by a certified
public accountant, as defined in the Act, us ing the nonprofit organizati on'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 15.34.2 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 15.34.3 The Contractor shall pay its s ubcontractors which are nonprofit
organizations the same indirect cost rates as the nonprofit or ganization subcontractors would
have received as a prime contractor.
ARTICLE 16- TERMINATION OR SUSPENSION
Section 16.1 All terminations or suspensions aris ing 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 pe rform 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 ch apter 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 determin es that the Design-Builder does not have the
financial ability to carry out its obligations under the Agreement and the Design-Builder fails
to give the Department prompt and reasonable assurances of its ability to perform.
Section 16.3.1 The Department shall provide the Design-Builder with written notice of
its intent to terminate the Agreement, under this Section.
Section 16.3.2 If the Department terminates the Agreement for default, the Department
will have the right to take over the Work, to ac cept 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, incl uding 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 ter mination 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 perfo rmed to the date of the
termination.
Article 17 – OTHER CONDITIONS AND SERVICES
Section 17.1 This Agreement and the rights and obligations of the Department and
Design-Builder herein are subject to the approval of the Council of the District of Columbia.
Article 18 – CHANGES IN THE WORK
Section 18.1 Chan ges 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 Direc tive/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 partic ular, 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 GMP.
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 Work or directing it to not to proceed, but to inform the Department,
in writing, of the amount, if any, by wh ich the Design-Builder believes that
Substantial or Final Comp letion Dates and/or the GM P 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 GMP to which it believes it is entitled as a result
of the Change Directive. If additional time is sought, a schedule analysis
supporting the requested extension shoul d be included. The schedule analysis
should include a written narrative explanation. If a change in the GMP is sought
(or if the Department has requested a deduct change), the statement should
include a breakdown, by line item, of the estimated cost changes attributable to
the proposed change. The Department may request, and the Design-Builder
shall provide, further cost breakdowns, clarifications, project documentation or
back-up if the Department reasonably believes such additional information is
needed to understand and evaluate the request. The additional information
required may include cost and pricing data in accordance with the Department’s
regulations. Any requested adjustment to the GMP shall be limited to increased
Cost of the Work due to the Change Directive. The Design-Builder is not
entitled to any markup on any kind of Change Orders except as authorized in
Section 18.8, and if so authorized, any mark-up shall be in accordance with
Section 18.11.
3. If the Department has not yet directed the Design-Builder to proceed with the
change described by a Change Directive, the Department may rescind it. If the
Department wishes to proceed or has al ready directed the Design-Builder to
proceed, the Design-Builder shall immediately proceed with the changed Work
and, the Department and the Design-Bu ilder shall use their good faith best
efforts to reach an agreement upon the modifications to the Substantial or Final
Completion Dates, and/or the GMP that is justified by the Change Directive. If
the Department and the Design-Builder reach an agreement, the agreement shall
be set forth in a Change Order and the Design-Builder shall also execute it, at
which point it will become binding on both Parties.
4. If the Parties fail to reach an agreement within sixty (60) days after the
Department receives the Design-Builder’s detailed statement pursuant to
Section 18.3.2, 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
GMP, 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 GMP arising from the Change Event and, if the
notice is not given within the required time, the Design-Builder will have waived the right to
any adjustment to the Substantial or Final Completion Dates, or the GMP arising from the
Change Event.
Section 18.5 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 GMP 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 Cha nge Event, and the amount of any requested
adjustment to the GMP shall be limited in accordance with that Section 18.3.
Section 18.6 Changes to GMP. Subject to the condition precedent that the Design-
Builder have complied with the notice and doc umentation provisions of this Article, and
subject to the limitations stated in this Agreement, the Design-Builder is entitled to an
adjustment to the GMP in the following cases:
1. If the Department issues a Change Directive or Change Order that directs the
Design-Builder to proceed with work which is beyond the scope of Work
included within this Agreement; or
2. The Design-Builder encounters differing site conditions or Hazardous Materials
not identified in the Preconstruction Phase.
Section 18.7 Deductive Change Orders. The Department reserves the right to issue
deductive Change Orders (reducing the GMP or modifying the Substantial or Final Completion
Dates to an earlier date) when changes are effected, by Change Directive or otherwise, which
will decrease the cost of completing the Work or the time within which it can be completed.
Section 18.8 No Adjustments to Fee. The Design-Builder understands and agrees
that the Design-Build Fee shall not be increased or decreased as a result of any Change Orders
or Change Directive. In furtherance of this understanding, the Design-Builder agrees that it
shall not be entitled to an increase in the Lu mp Sum General Conditions Cost or the Design-
Build Fee by virtue of changes authorized by the Department unless such changes fall outside
the general scope of work contemplated by this Agreement. The term general scope of work
shall mean a state-of-the-art educational facility that is consistent with the Department’s
program of requirements and incorporates sustainable design initiatives. Without limiting the
generality of the foregoing, it is understood and ag reed 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 Orde r 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 Ch ange Event giving rise to the Change Order or
Contract Modification. Although th e Parties anticipate that most Change Orders or Contract
Modifications will not require an adjustment to the General Conditions Cost, if the Work
described in a Change Order or Contract Modifi cation 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 c ontain an increase to the Desi gn-Build Fee adjusting such
amount. The cost of processing a Change Or der 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 ag ree 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, a nd 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 su ch 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 prof it) on Work Performed by lower-tier
Subcontractors;
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 co st 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 of fice 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 ma de idle by delays attributable to
the Government will be based on one-half the derived hourly rate under
this subsection.
(d) Materials. Incorporated and unincorporated materials as permitted
under Section 9.1.
Article 19 – CLAIMS & DISPUTE RESOLUTION
Section 19.1 All claims or disputes arising out of this Agreement shall
be governed by the terms of the Standard Contract Provisions (fo r Architectural and
Engineering Services and Construction Contracts).
Section 19.2 Notwithstanding any other provision of this Agreement to
the contrary, neither party including its officers, agents, servants, and employees, shall be liable
to the other for lost profits or any special, indirect, incidental, or consequential damages in any
way arising out of this Agreement however caus ed under a claim of any type or nature based
on any theory of liability (including, but not limite d to contract, tort, or warranty) even if the
possibility of such damages has been communicated.
For the avoidance of confusion, the Parties agree that this provision does not affect the
Department’s ability to assess Liquidated Damages as set forth in Section 14. Furthermore, the
Parties agree that any acceleration costs required to complete the modernization work described
in this agreement shall not be considered consequential damages for purposes of this provision.
Article 20 - EXHIBITS
Exhibit A1 Program Requirements and Educational Specifications
Exhibit A2 Concept Design, Schema tic Design, and Design Development
Milestone Requirements
Exhibit B1 Project Schedule
Exhibit B2 Goding Swing Space – Modular Trailer Drawings
Exhibit C Deliverable List
Exhibit D SBE Subcontracting Plan
Exhibit E Reserved
Exhibit F Key Personnel
Exhibit G1 Davis Bacon Act Wage Determination
Exhibit G2 Title 29 Code of Federal Regulations (“CFR”)
Exhibit H Design-Builder’s Designated Representatives
Exhibit I Department’s Designated Representatives and Contracting Officers
Exhibit J Standard Contract Provisions (Construction and Architecture/Engineering)
Exhibit K Form of Lien Waiver
Exhibit L Form of GMP Amendment
Exhibit M Reserved
Exhibit N FF&E and Close-Out
Exhibit O Subcontractor Performance Evaluation Form
Exhibit P Equal Employment Opportunity Policy
Exhibit Q Living Wage Act
Exhibit R Award Fee Pool
Exhibit S BIM Requirements
Exhibit T DGS Close-Out Manual
Exhibit U Quality Control Master Program
Exhibit V First Source Employment Agreement
Exhibit W Assumptions And Clarifications
Exhibit X Schedule of Values
Exhibit Y Campaign Finance Refo rm Act Self-Certification Form
Exhibit Z Mentor-Protégé Partnership Agreement
IN WITNESS WHEREOF , the Parties have executed this Agreement
(DCAM-24-CS-RFP-0006) through their duly author ized representatives and effective as of
the last date written below.
DEPARTMENT OF GENERAL SERVICES, GILBANE BUILDING COMPANY
an agency within the executive branch
of the Government of the District of Columbia
By: By:
N a m e : N a m e :
Title: Title:
D a t e : D a t e :
Tyler Swartzwelder
VP
6/14/2024
Tyler Swartzwelder
Digitally signed by Tyler Swartzwelder
DN: C=US, E=tswartzwelder@gilbaneco.com, O=Gilbane
Building Company, CN=Tyler Swartzwelder
Date: 2024.06.14 15:01:57-04'00'
Peter Henry Lyonga
Contracting Officer
8/27/2024
E x h i b i t s
Link to Contract Exhibits For –
Burroughs Elementary School Modernization And Modular Campus Swing
https://dcgovict-my.sharepoint.com/:f:/g/personal/suzi_tabot_dc_gov/EgV9y-g1foVKjsUgA-
a3cRsBxRzqPZIOsaSh8mN57Z9rfQ?e=EON1pE