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MURIEL BOWSER
MAYOR
June 17, 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. 5 to Contract No. DCAM -22-CS-RFP-0018 with MCN Build, Inc.
(“MCN”), increasing the Guaranteed Maximum Price (“GMP”) by $2,339,557.41, from
$107,686,296.00 to $110,025,853.41.
Under proposed Modification No. 5, MCN will provide additional design -build services required
to renovate and modernize the Browne Education Campus located at 850 26th Street, NE,
Washington, DC 20002. The additional cost includes: 1) generator cost; 2) infrastructure and repair
cost; 3) overtimes; 4) temporary heating; 5) ceiling and tile replacement and repair; 6) temporary
fencing and repair; 7) Richter and Associates dry utility consultants; 8) fees; 9) insurance burden;
and 10) payment and performances bonds.
My administration is available to discuss any questions you may have regarding this contract
modification. To facilitate a response to any questions you may have, please contact Delano
Hunter, Director, Department of General Services (the “Department” or “ DGS”), or have your
staff contact Eric Njonjo, Acting Chief Procurement Officer, DGS, at (202) 727-2800.
I look forward to the Council’s favorable consideration of this contract modification.
Sincerely,
Muriel Bowser
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
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)
Modification No. 5 to Design-Build Services for Browne Education Campus School
Modernization
(A) Contract Number: DCAM-22-CS-RFP-0018
Modification No. 5
Contractor: MCN Build, Inc.
Proposed Increased Contract Amount
Via Modification No. 5: $2,339,557.41
Proposed Total Contract Amount (Increased
to the Guaranteed Maximum Price (“GMP”)): $110,025,853.41
Unit and Method of Compensation: Progress payments on a monthly basis
Term of Contract: January 13, 2023 (date of execution of the
Letter Contract by the Department of
General Services (the “Department” or
“DGS”)) to January 6, 2025 (“Part 1
Substantial Completion Date”) and July 15,
2025 (“Part 2 Substantial Completion
Date”) with an Administrative Term of
March 15, 2027.
Type of Contract: Cost Plus Fixed Fee with a GMP
Source Selection Method: Competitive Request for Proposals
(B) For a contract containing option periods, the contract amount for the base period and for each
option period. If the contract amount for one or more of the option periods differs from the
amount for the base period, provide an explanation of the reason for the difference:
N/A
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
(C) The goods or services to be provided, the methods of delivering goods or services, and any
significant program changes reflected in the proposed contract:
The Department engaged the Contractor to provide design-build services for the modernization of
the Browne Education Campus (the “Project”). The Project is divided into two phases: (i) the Design
and Preconstruction Phase; and (ii) the Construction Phase.
The Project includes the complete renovation and modernization of the Browne Education Campus
consisting of design and construction services including but not limited to approximately 132,906
square feet of renovated space, new roof, new building systems, full site improvements, public space
improvements, and temporary swing space accommodations. The project will also include the
renovation of the 1930s and 1950s buildings, the demolition of the 1970s building, and an additional
building on the site's Northside.
The underlying Contract was deemed approved by the Council on June 5, 2023, as CA25-227, with
an initial not -to-exceed (“NTE ”) amount of $9,790,832 ($995,000 Letter Contract amount +
$8,795,832 Early Start Agreement (“ESA 1”). Modification No. 1 ( “ESA 2”) to the Contract was
approved by the Council on July 10, 2023, as CA25-0301, and increased the NTE by $38,090,528,
totaling $47,881,360 for additional early release work. Modification No. 2 to the Contract was
approved by Council on July 5, 2024, as CA25 -886, and established GMP in the amount of
$107,686,296. Modification No. 3 and Modification No. 4 were $0 modifications to specify fund
availability and extend Part 1 substantial completion date. Therefore, Council approval was not
required.
The Department now seeks Council approval to execute proposed Modification No. 5. If approved,
Modification No. 5 will support the solution of unforeseen delays in power delivery to the site
caused by Potamic Electric Power Company (“PEPCO”) after the GMP had been executed and will
increase the Contract’s GMP amount by $2,339,557.41, from $107,686,296 to $110,025,853.41.
Modification No. 5 will cover the cost for: 1) generator; 2) infrastructure and repair ; 3) overtimes;
4) temporary heating; 5) ceiling and tile replacement and repair; 6) temporary fencing and repair;
7) Richter and Associates dry utility consultants; 8) fees; 9) insurance burden; and 10) payment and
performances bonds. As the proposed modification would increase the Contract value by or 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 CA25-0227 on June 5, 2023, with a NTE amount of $9,790,832. Additionally,
Modification No. 1 was approved by the Council on July 10, 2023, as CA25- 0301, increasing the
NTE amount to $47,881,360. Modification No. 2 to the Contract was approved by Council on July
5, 2024, as CA25-886, and established GMP in the amount of $107,686,296. Modification No. 3
and Modification No. 4 were $0 modifications to speci fy fund availability and extend Part 1
substantial completion date.
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
(E) A description of any bid protest related to the award of the contract, including whether the
protest was resolved through litigation, withdrawal of the protest by the protestor, or
voluntary corrective action by the District. Include the identity of the protestor, the grounds
alleged in the protest, and any deficiencies identified by the District as a result of the protest:
The award of the Contract was not protested.
(F) A description of any other contracts the proposed contractor is currently seeking or holds
with the District:
The Contractor is currently involved in several District projects and is in pursuit of many other
District projects. The list of projects is provided as Exhibit A.
(G) The background and qualifications of the proposed contractor, including its organization,
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 has extensive specialized experience managing K -12 school building renovations,
including those at buildings designated as historic, in urban settings. The strength of the Contractor’s
experience, which uniquely qualifies them for the Project, is demonstrated in the following six
construction projects, which were completed by the Contractor:
1. Bard High School Early College in Washington, DC;
2. MacFarland Middle School in Washington, DC;
3. C.W. Harris Elementary School in Washington, DC;
4. Jefferson Middle School in Washington, DC;
5. Murch Elementary School in Washington, DC; and
6. Banneker Academic High 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 a certified business enterprise in accordance with the Act (CBE Number:
LR65116012028). Pursuant to D.C. Code § 2- 218.46(d-1), the Contractor shall submit a detailed
subcontracting plan to DSLBD that meets the requirements of D.C. Code § 2- 218.46(d) before
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
entering into a guaranteed maximum price; the Contractor submitted a subcontracting plan as
follows:
Contract’s NTE Dollar Value $110,025,853.41
Subcontracting Requirement % 35% of the subcontracting amount
Subcontracting Plan Required Dollar Value $35,428,324.80
Subcontracting Plan Actual Dollar Value $41,429,027.40
(I) Performance standards and the expected outcome of the proposed contract:
The Contractor is required to provide all design, preconstruction, and construction services and other
services necessary to substantially complete the Project no later than January 6, 2025, for Part 1,
and July 15, 2025, for Part 2. 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 $500 per day of delay for failure to timely achieve substantial completion of
the Project. The Contract also provides a disincentive fee of $25,000 for the replacement of key
personnel without the Department’s prior approval and not as a penalty, to reimburse the
Department for its administrative costs arising from the Contractor’s failure to provide the key
personnel.
(J) The amount and date of any expenditure of funds by the District pursuant to the contract
prior to its submission to the Council for approval:
The Letter Contract executed by the Department on January 13, 2023, provided for an initial NTE
amount of $995,000.00. The underlying Contract executed by the Department on June 13, 2023,
provided an NTE amount of $9,790,832.00 ($995,000.00 Letter Contract amount +
$8,795,832.00.00 Early Start Agreement (“ESA 1”). Modification No. 1 (“ESA 2”) to the Contract
executed by the Department on July 13, 2023, provided an NTE of $ 38,090,528.00, totaling
$47,881,360.00 for additional early release work. Modification No. 2 to the Contract was approved
by Council on July 5, 2024, as CA25-886, and established GMP in the amount of $107,686,296.
Modification No. 3 and Modification No. 4 were $0 modifications to specify fund availability and
extend Part 1 substantial completion date. Therefore, Council approval was not required.
(K) A certification that the proposed contract is within the appropriate 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 Contract’s GMP increase
is consistent with the Department’s budget and that adequate funds are available in the Department’s
budget in accordance with D.C. Official Code §§ 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:
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
The proposed Modification No. 5 has been deemed legally sufficient by the Department’s Office of
the General Counsel, and the Contractor does not appear to have any current 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 tax laws.
(O) The status of the proposed contractor as a certified local, small, or disadvantaged business
enterprise as defined in the Small, Local, and Disadvantaged Business Enterprise
Development and Assistance Act of 2005, as amended; D.C. Official Code § 2-218.01 et seq.:
According to the DSLBD website, the Contractor is a certified Local Business Enterprise and
Resident Owned Business. The Contractor’s CBE Number is LR65116012028, with an expiration
date of January 28, 2028.
(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.
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
(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:
The Contract award information is available on the Department’s website. A copy of the proposed
modification will be made available on the Department’s website upon approval.
(T) Where the original solicitation, and any amendments or modifications, will be made
available online:
The original solicitation and any amendments were 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.
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Exhibit A
Contracts that MCN Build, Inc. Currently Holds with The District (Not Limited to DGS only):
Contract Number Project Caption
Project Value
1. DCAM-22-CS-RFP-0002 CMAR for Fort Lincoln Park $40M
2. DCAM-23-CS-RFP-0008 Design Build for Tubman ES $79M
3. DCAM-23-CS-RFP-0017 Design Build for MacArthur HS $72M
4. DCAM-23-CS-RFP-0035 Design Build for New Douglass $25M
5. DCAM-24-CS-RFP-0004 Design Build for King ES $57M
6. DCAM-24-CS-RFP-0024 CMAR for Jelleff Rec Center $28M
7. DCAM-24-CS-RFP-0028 Design Build for Whittier EC $96M
8. DCAM-24-CS-RFP-0029 Hart MS and Internal Swing $122M
9. DCAM-24-CS-RFP-0032 Chisholm ES Modernization $90M
Projects MCN Build, Inc. Is Currently Seeking with The District (Not limited to DGS only):
Contract Number Project Caption
Project Value
1. Not Listed Chevy Chase Civic Site TBD
/0 /0 /1 /0 □ /3 /4 /5 □ /6 /4 /7 /8 /8 /4 /9 □ /6 /10
/10 /11 /12 /5 /13 /14 /15 /4 /16 /14 /9 □ /17 /18 □ /19 /1 /1 /19 /3
/20 /21 /22 /23 □ /25 /26 □ /27 /25 /22 /28 /29 /23 /30 /31 /32 /33 /23 □ /34 /35 □ /36 /37 /36 /38 /39 /37 /37 /40 /41 /36 /36 /42 /43 /42 /37/27 /25 /22 /28 /29 /23 □ /27 /32 /44 /45 /23 /46 /30
/47 /48 /49 /50 /51 □ /52 /52 /53 /52 /52 /52 /54 /3 /19 /55
/18 /11 /12 /8 □ /49 /17 /51 □ /0 /56 /57 /54 /1 /57 /19 /56
□
/59 /16 /60 /8 /7 /14 /61 /8 /14 /4 □ /16 /62 □ /4 /5 /8 □ /17 /13 /12 /4 /7 /13 /63 /4 □ /16 /62 □ /18 /16 /64 /65 /61 /66 /13 /11
/67 /62 /62 /13 /63 /8 □ /16 /62 □ /4 /5 /8 □ /18 /5 /13 /8 /62 □ /47 /13 /14 /11 /14 /63 /13 /11 /64 □ /67 /62 /62 /13 /63 /8 /7
/67 /62 /62 /13 /63 /8 □ /16 /62 □ /68 /11 /69 □ /11 /14 /70 □ /71 /8 /60 /8 /14 /65 /8 □
/72 /18 /50 □ /73 /74 /49 /75 /17 □ /49 /50 /18
/0 /19 /0 /3 □ /19 /56 /68 /76 □ /6 /68 □ /50 /10
/10 /77 /6 /76 /49 /50 /59 /68 /67 /50 □ /17 /18 □ □ /19 /1 /1 /1 /78 /53 /54 /54 /0 /79
□
/80 /46 /21 /33 /29 /81 □ /82 /81 /28 /23 /26 /35 □ /82 /25 /83 /83 /23 /29 /22 /28 /25 /33 □ /21 /33 /84 □ /85 /33 /26 /25 /46 /29 /23 /44 /23 /33 /22 □ /86 /84 /44 /28 /33 /28 /87 /22 /46 /21 /22 /28 /25 /33
/86 /32 /22 /81 /25 /46 /28 /88 /23 /84 □ /80 /89 □ /90 /23 /83 /28 /33 /84 /21 □ /31 /23 /33 /91 /28 /33 /87
/68 /16 □ /60 /11 /64 /13 /70 /11 /4 /8 □ /4 /5 /13 /12 □ /63 /8 /7 /4 /13 /62 /13 /63 /11 /4 /8 /9 □ /92 /64 /8 /11 /12 /8 □ /60 /13 /12 /13 /4 □ /72 /93 /68 /11 /69 /94 /17 /18 /94 /15 /16 /60 /94 □ /67 /14 □ /4 /5 /8 □ /72 /93 /68 /11 /69 □ /17 /18 □ /5 /16 /61 /8 /92 /11 /15 /8 /9 □ /63 /64 /13 /63 /95 □ /4 /5 /8
/96 /97 /11 /64 /13 /70 /11 /4 /8 □ /11 □ /18 /8 /7 /4 /13 /62 /13 /63 /11 /4 /8 □ /16 /62 □ /18 /64 /8 /11 /14 □ /76 /11 /14 /70 /12 /98 □ /5 /93 /92 /8 /7 /64 /13 /14 /95 □ /65 /14 /70 /8 /7 □ /4 /5 /8 □ /18 /64 /8 /11 /14 □ /76 /11 /14 /70 /12 □ /12 /8 /63 /4 /13 /16 /14 /94
/99 /100 /101 /102 /103 /104 /103 /99 /105 /102 /100 □ /107 /104 □ /99 /108 /100 /105 /109 □ /110 /105 /109 /111 /112
/77 /12 □ /7 /8 /92 /16 /7 /4 /8 /70 □ /13 /14 □ /4 /5 /8 □ /18 /64 /8 /11 /14 □ /76 /11 /14 /70 /12 □ /12 /93 /12 /4 /8 /61 /9 □ /4 /5 /8 □ /11 /66 /16 /60 /8 □ /7 /8 /62 /8 /7 /8 /14 /63 /8 /70 □ /13 /14 /70 /13 /60 /13 /70 /65 /11 /64 /113 /8 /14 /4 /13 /4 /93 □ /5 /11 /12 □ /14 /16 □ /16 /65 /4 /12 /4 /11 /14 /70 /13 /14 /15
/64 /13 /11 /66 /13 /64 /13 /4 /93 □ /114 /13 /4 /5 □ /4 /5 /8 □ /17 /13 /12 /4 /7 /13 /63 /4 □ /16 /62 □ /18 /16 /64 /65 /61 /66 /13 /11 □ /67 /62 /62 /13 /63 /8 □ /16 /62 □ /68 /11 /69 □ /11 /14 /70 □ /71 /8 /60 /8 /14 /65 /8 □ /16 /7 □ /4 /5 /8 □ /17 /8 /92 /11 /7 /4 /61 /8 /14 /4 □ /16 /62 □ /48 /61 /92 /64 /16 /93 /61 /8 /14 /4
/6 /8 /7 /60 /13 /63 /8 /12 /94 □ /77 /12 □ /16 /62 □ /4 /5 /8 □ /70 /11 /4 /8 □ /11 /66 /16 /60 /8 /9 □ /4 /5 /8 □ /13 /14 /70 /13 /60 /13 /70 /65 /11 /64 /113 /8 /14 /4 /13 /4 /93 □ /5 /11 /12 □ /63 /16 /61 /92 /64 /13 /8 /70 □ /114 /13 /4 /5 □ /17 /18 □ /18 /16 /70 /8 □ /115 □ /3 /78 /53 /19 /56 /57 /19 /9 □ □ /4 /5 /8 /7 /8 /62 /16 /7 /8
/4 /5 /13 /12 □ /18 /8 /7 /4 /13 /62 /13 /63 /11 /4 /8 □ /16 /62 □ /18 /64 /8 /11 /14 □ /76 /11 /14 /70 /12 □ /13 /12 □ /13 /12 /12 /65 /8 /70 /94
/68 /49 /68 /75 /48 □ /3 /78 /94 □ /68 /77 /116 /77 /68 /49 /67 /50 /9 □ /75 /49 /18 /48 /50 /6 /49 /50 /59 /9 □ /117 /48 /71 /72 /49 /68 /6 /9 □ /77 /6 /6 /48 /6 /6 /72 /48 /50 /68 /6 /9 □ /77 /50 /17 □ /47 /48 /48 /6
/18 /76 /77 /117 /68 /48 /71 □ /19 /56 □ /59 /48 /50 /48 /71 /77 /75 □ /75 /49 /18 /48 /50 /6 /48
/6 /74 /73 /18 /76 /77 /117 /68 /48 /71 □ /49 /49 /94 □ /18 /75 /48 /77 /50 □ /76 /77 /50 /17 /6 □ /73 /48 /47 /67 /71 /48 □ /71 /48 /18 /48 /49 /97 /49 /50 /59 □ /77 □ /75 /49 /18 /48 /50 /6 /48 □ /67 /71 □ /117 /48 /71 /72 /49 /68
/17 /94 /18 /94 □ /18 /67 /17 /48 □ /115 □ /3 /78 /53 /19 /56 /57 /19 □ /118 /19 /1 /1 /57 /119
/115 □ /3 /78 /53 /19 /56 /57 /19 □ /117 /71 /67 /76 /49 /73 /49 /68 /49 /67 /50 □ /77 /59 /77 /49 /50 /6 /68 □ /49 /6 /6 /74 /77 /50 /18 /48 □ /67 /47 □ /75 /49 /18 /48 /50 /6 /48 □ /67 /71 □ /117 /48 /71 /72 /49 /68
/120 /120 /121 /120 □ /122 /123 /124 □ /112 /123 /125 /126 /126 /123 □ /112 /127/128 □ /112 /129 /130 /123 /126 □ /127/131 /132 /121 /128 □ /127/133 /134 /124 /130 /135 /136 /123 /137 /135 /128 □ /111 /99 □ /131 /121 /121 /131 /122 /138 /139 /124 /137 /135 /126 /140 □ /141 /131 /121 /131 /142 □ /132 /131 /122 /143 /144 /121 /122 /144 /138 /145 /146 /102 /133 /147 /148 /111 /99 /148 /136 /137 /149
□
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: Modification No. 5 Contract No. DCAM-22-CS-RFP-0018
Design-Build Services for Browne Education Campus Modernization
Date: June 4, 2025
Subject: Fiscal Sufficiency Review
In my capacity as the Agency Fiscal Officer of the Department of General Services (the “Department”), I hereby
state that the proposed Modification No. 5 to the contract for Design -Build Services for Browne Education
Campus Modernization (Contract No. DCAM-22-CS-RFP-0018) (the “Contract”), with MCN Build, Inc. (the
“Contractor”), in the amount of $2,339,557.41 is consistent with the Department’s current budget and that
adequate funds are available in the budget for the expenditure.
Per the Department of General Services Contracts & Procurement team (C&P), the underlying Contract was
approved by the Council on June 5, 2023, as CA25 -0227, with an initial NTE amount of $9,790,832.00
($995,000.00 Letter Contract amount + $8,795,832.00 Early Start Agreement (“ESA”) #1 amount).
Modification No. 1 (ESA 2) to the Contract was approved by the Council on July 10, 2023, as CA25-0301,
and increased the NTE amount by $38,090,528.00, totaling $47,881,360.00 ($38,090,528.00+ $9,790,832.00)
for additional early release work. Modification No. 2 to the Contract was approved by the Council on July 5,
2024, as CA25-0 886, and established GMP in the amount of $107,686,296.00 ($59,804,936.00 +
$47,881,360.00).
The proposed Modification No. 5 in the amount of $2,339,557.41 would increase the guaranteed maximum price
(“GMP”) by $2,339,557.41 from $107,686,296 to $110,025,853.41. The additional $2,339,557.41 is a value of
$ 1 million or more, requiring council approval. The Contract increase outlines items related to owner directive
and unforeseen delay caused by Potamic Electric Power Company after the GMP was approved and executed.
The Department of General Services (DGS – Implementing AGY) has $110,025,853.41 in the District of
Columbia Public Schools (DCPS – Owner AGY) cumulative capital budget authority balance.
The DIFS/PASS information is listed below/attached.
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Project Name Project
Number
AY Fund
Detail
Imp.
AGY
Owner
AGY
RK/PO Amount Comments
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 PO681397 $995,000.00 Letter Contract
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 PO689051 $8,795,832.00 ESA #1
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 PO690421 $1,300,000.00 ESA #2 FY23 part
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 PO690422 $36,790,528.00 ESA #2 FY24 part
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 PO710475 $45,000,000.00 GMP
FY24 Capital part
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 PO717909 $13,979,913.90 GMP
FY25 Capital part
CCD Reverse Capital Paygo to
Operating Funding
201552 N/A 1010001 AM0 GA0 PO710476 $196,516.70 GMP
FY24 Ineligible part
CCD Reverse Capital Paygo to
Operating Funding
201552 N/A 1010001 AM0 GA0 PO718295 $628,505.40 GMP
FY25 Ineligible part
AM0.YY108C.BROWNE EC
MODERNIZATION
100267 N/A 3030300 AM0 GA0 RK305039 $2,339,557.41 Proposed Mod #5
Total $110,025,853.41
_________________________________
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Services
for AHB
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. 5 to the Design-Build Services
Agreement for Browne Education Campus Modernization
Contract Number: DCAM-22-CS-RFP-0018
Contractor: MCN Build, Inc.
DATE: June 5, 2025
This is to certify that this Office has reviewed the above -referenced proposed
Modification No. 5 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
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
January 4, 2023
Joseph Khoury
Executive VP
MCN Build, Inc.
1214 28th Street NW,
Washington, DC 20007
joseph@mcnbuild.com
Reference: Request for Proposals No. DCAM-22-CS-RFP-0018 (“RFP”)
Design-Build Services for Browne Education Campus Modernization
(“Browne EC’)
Subject: Notice to Proceed and Letter Contract
Dear Mr. Khoury,
We refer to the proposal submitted by MCN Build, Inc. (the “Contractor” or “Design -Builder”) in
response to the above-referenced RFP. We are pleased to inform you that this work has been
awarded to MCN Build, Inc. and if this Letter Contract (“Letter Contract”) is signed by the
Contractor without modification of any kind, it will serve as a notice to proceed with the work
described below. This notice to proceed is subject to the following terms:
1. Letter Contract. This is a Letter Contract between the Contractor and the District of Columbia
Government, acting by and through its Department of General Services (“DGS” or the “Department”),
and shall govern our relationship until such time as a final contract is entered into for the wor k
described in the above-referenced RFP (the “Definitized Contract”); provided, however, that to the
extent an issue is not covered in this Letter Contract, the RFP shall govern. Once the Definitized
Contract is executed by an authorized Contracting Offic er, this Letter C ontract shall automatically
terminate and merge into the Definitized Contract.
2. Scope of Work. The Contractor shall provide Design-Build Services for the Browne EC
project, located at 850 26th Street NE, Washington, DC 20002, as described in the Contractor’s
Proposal dated October 17, 2022, submitted in response to the subject RFP.
3. Deliverables. In connection with the services provided pursuant to this Letter Contract, the
Contractor shall provide, at a minimum, the deliverables in accordance with the requirements in the
RFP and Form of Contract to the Department’s Program Manager and in the referenced instances to
the Contracting Officer.
In the event that the Contractor fails to timely submit any such deliverable, the Contractor shall pay to
the Department as liquidated damages Seven Thousand Five Hundred Dollars ($ 7,500.00) plus Five
Hundred Dollars $500.00 per day after receiving written notice from the Contracting Officer of failure
2000 14th St. NW, 4th Floor Washington DC 20009 | Telephone (202) 727.2800 | Fax (202) 727-7283
to submit each deliverable. This remedy is cumulative and does not limit any other right or remedy of
the Department under the contract or applicable District law.
4. Not to Exceed Amount. The limit of this authorization is up to $995,000.00 (“Not to Exceed”
amount or “NTE”) including $839,195 for the design fee, $31,404 for general conditions cost
(comprising of Insurance burden in the amount of $18,884 and Performance & Payment Bond in the
amount of $12,520), and $124,401 for Preconstruction fee, as further described in the Schedule of
the Values (Exhibit A). In no event shall the Contractor be entitled to receive more than the NTE
under this Letter Contract unless authorized in advance and in writing by a duly authorized
Contracting Officer. This not-to
-exceed amount includes all costs incurred by the Contractor in
connection with the work authorized hereby.
5. Construction Phase Compensation. The Contractor understands and agrees that the Department
makes no representation or warranty that the Contractor shall be entitled to serve as the builder for the
Project. If, however, the Department and the Contractor agree upon a GMP and schedule for the
Project, the Contractor agrees that it shall be paid a Design Fee of $5,750,000,
a Design-Build Fee of
$1,750,000 and that the Maximum Cost of General Conditions shall be $3,325,000, including the
amounts in Section 4, based on the schedule and budget set forth in the RFP. The Contractor further
agrees to enter into a design-build agreement that is substantially similar to the Agreement for Design-
Build Services issued with the RFP, subject only to such adjustments as were requested by the
Contractor in its bid and which are agreed to by the Department.
6. Insurance. At all times while working under this Letter Contract, the Contractor shall maintain
insurance as described in the RFP. All such policies shall be endorsed to add the District of Columbia,
including, but not limited to, its Department of General Services, and the respective agents, employees,
and offices of each as additional insureds.
7. Duration. Once signed by the Contractor, the Letter Contract will become effective on the date
the Letter Contract is executed by the Department. This Letter Contract will terminate on the earlier
to occur of the following: (i) the date the Definitized Contract becomes effective; or (ii) May 31, 2023
DGS reserves the right to terminate this Letter Contract, in whole or specified part, for convenience
in the manner described in Article 5 and Article 6 of the District of Columbia Department of General
Services Standard Contract Provisions General Provisions for Construction Contracts.
8. Billing. All invoices shall be submitted directly to the Department at th e address specified in
the RFP. Purchase Order numbers should be included in all future invoices and accounting records.
Properly prepared invoices with the necessary backup shall be paid within thirty (30) days of receipt.
Invoices not paid by that date shall bear interest in accordance with the Quick Payment Act.
9. Key personnel. To carry out its duties, the Design -Builder shall provide at least the key
personnel identified in (Exhibit F) (“Key Personnel”), who shall carry out the functions identified in
(Exhibit F). Among other things, the Key Personnel shall include:
A - Key Personnel of the Contractor:
(i) Project Manager; (ii) Superintendent; and (iii) Project Executive.
B - Key Personnel of the Architect/Engineer
i. Project Manager (ii) Project Architect; (iii) Principal in Charge; (iv) Lead Mechanical
Engineer; (v) Lead Structural Engineer; and (vi) Lead Envelope Consultant.
2000 14th St. NW, 4th Floor Washington DC 20009 | Telephone (202) 727.2800 | Fax (202) 727-7283
It is contemplated that these Key Personnel will work from the design stage, purchasing and
throughout the bulk of the fieldwork. The Design-Builder’s obligation to provide adequate staffing is
not limited to providing the Key Personnel but is determined by the needs of the Project. If any of the
Key Personnel becomes unavailable to perform services in connection with the Letter Contract due to
death, disability , or separation from the employmen t 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 . Certain members of the Design -Builder’s Key
Personnel shall be subject to a replacement fee for their removal or reassignment by the Design -
Builder.
If the Design-Builder replaces one of the key personnel listed in (Exhibit F) as being subject to a
replacement fee, without the prior written consent of the Department, then the Design -Builder shall
pay the Department $25,000 for each replacement as a replacement fee and not a penalty, to reimburse
the Department for its administrative costs arising from the Design -Builder’s failure to provide the
Key Personnel. The foregoing replacement fee amount shall not bar recovery of any other damages,
costs, or expenses other than the Department’s internal administrative costs.
10. ProjectTeam. The Design-Builder shall utilize the Department’s current project management
software (“ProjectTeam”) system to submit any and all Project Documentation required to be provided
by the Design-Builder for the Project, including, but not limited to: (i) requ ests for information; (ii)
submittals; (iii) meeting minutes; (iv) invoices/applications for payment (full package including all
forms required by DGS); (v) certified payrolls (in addition to uploading via LCP Tracker); (vi)
drawings and specifications; (vii) punch list, and (viii) other Project Documents as may be designated
by the Department. The Design -Builder also shall require all subcontractors and subconsultants to
utilize ProjectTeam for the Project execution.
Electronic storage and transmission of information via ProjectTeam system shall be compliant with
the provisions of the Document Security section of these General Requirements.
11. Invoice Submittal. The Contractor shall create and submit payment requests in an electronic
format through the DC Vendor Portal, https://vendorportal.dc.gov. The Contractor shall submit proper
invoices on a monthly basis. To constitute a proper invoice, the Contrac tor shall enter all required
information into the Portal after selecting the applicable purchase order number which is listed on the
Contractor’s profile. Properly prepared invoices with the necessary backup shall be paid within thirty
(30) days of receipt . Invoices not paid by that date shall bear interest in accordance with the Quick
Payment Act. For assistance with the registration process call (202) 741 -5200
or visit http://vendorportal.dc.gov to submit an inquiry.
12. Purchase Order Number. This Letter Contract will become ef fective on the date the Letter
Contract is executed by the Department. The Department’s Contracting & Procurement Division will
issue a purchase order number and will be sent in a separate cover. That number should be included
in all future invoices and accounting records. In the event that you do not obtain a purchase order
number please contact Suzi Tabot via suzi.tabot@dc.gov directly to obtain this number.
13. Ownership and Use of Documents. All documents a nd work products prepared by the
Contractor shall become the property of the Department upon the payment of invoices submitted under
the Letter Contract.
14. Trade Work/Site Control. Unless otherwise directed by the Department, the Contractor shall
not perform any trade work or take control of the site. Any authorization to proceed with trade work
2000 14th St. NW, 4th Floor Washington DC 20009 | Telephone (202) 727.2800 | Fax (202) 727-7283
will include appropriate provisions relating to compliance documents (first source employment
agreement, Department of Small and Local Business Development (DSLBD)), bonds, insurance, and
safety proce dures. At a minimum, however, the Department’s Standard Contract Provisions for
Construction shall apply . In addition to the requirements set forth in any such subsequent
authorization, prior to executing this Letter Contract , the Contractor shall provide the Department’s
Contracting Officer with certificates evidencing insurance, a payment and performance bond having
a penal value equal to the then value of the Letter Contract and the Contractor’s agreement of
indemnity. In the event the Contractor fails t o provide the Department with such certificates of
insurance, the agreement for indemnity or bond, the Department may withhold any subsequent
payment until such documents are provided.
15. Entire Agreement; Modification. This Letter Contract, along with the Standard Contract
Provisions, (Exhibit A – Architectural & Engineering Services and Exhibit B – Construction Services)
supersede all contemporaneous or prior negotiations, representations, course of dealing, or
agreements, either written or oral. No modifications to this Letter Contract shall be effective against
the Department and unless made in writing signed by the Department. Notwithstanding the provisions
of this Section 15, nothing herein shall limit the Department’s ability to unilaterally modify this Letter
Contract.
16. Davis Bacon Act Wage Determination. The Contractor agrees that the work performed under
this Letter Contract shall be subject to the Davis Bacon Wage Determination as set forth in
(Exhibit D) in effect at the time of Letter Contract execution by the Department.
17. Service Contract Act. The Contractor agrees that the work performed under this Letter Contract
shall be subject to the Service Contract Act as set forth in (Exhibit E) in effect at the time of Letter
Contract execution by the Department.
18. Living Wage Act. The Contractor agrees that the work performed under this Letter Contract
shall be subject to the Living Wage Act in effect at the time of Letter Contract execution by the
Department. As such, the Contractor and its subcontractors shall comply with the wage reporting
requirements imposed by the act as set forth in (Exhibit G).
19. Performance And Payment Bonds. The Contractor agrees to post a payment and performance
bond having a penal value equal to the Agreement amount at the time the Agreement is executed. The
Design-Builder will be required to post an up dated payment and performance bonds to reflect the
GMP Amendment amount.
ISSUED BY: ACCEPTED BY:
The Department of General Services MCN Build, Inc.
By:
Name:
Title:
By:
Name: Peter Ghogomu
Title: Contracting Officer
Date:
Date:
Joseph Khoury
EVP of Preconstruction
1/13/2023
1/13/2023
X
4. Terms & Conditions: All other Terms and Conditions remain unchanged.
3. Capital Eligibility. Prior to purchasing, expanding, or committing any portion of funds for the scopes of work covered by the line items listed in Exhibit
A, the Design-Builder must first seek and obtain from the Department’s Office of the Chief Financial Officer a determination as to whether the work will
qualify as a “capital” expense under the District’s General Guidelines for Capital Financing Eligibility, which are attached here as Exhibit B. In making such
a request, the Design-Builder shall submit an itemized breakdown of the work that the Design-Builder seeks to release using funds from the Not-to-Exceed
Amount as well as the associated costs of such work.
Contracting and Procurement Division Capital Construction Division
3924 Minnesota Avenue NE, 5th Floor 3924 Minnesota Avenue NE, 5th Floor
1. Contract Number
MODIFICATION OF CONTRACT Page of Pages
DCAM-22-CS-RFP-0018 1 2
7. Administered By (If other than line 6)
Department of General Services Department of General Services
6. Issued By:
3. Effective Date 4. Requisition/Purchase Request No. 5. Caption
Modification No. 1 See Block 16C PR-010763 Design-Build Services Browne
Education Campus
2. Modification Number
Washington, DC 20019 Washington, DC 20019
MCN Build, Inc.
1214 28th Street NW,
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
(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. MCN Build, Inc. 15C. Date Signed 16B. District of Columbia 16C. Date Signed
15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer
5. 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 actualor 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 Ghogomu - Contracting Officer
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
2. Not-to-Exceed Amount. The Contract's NTE amount is hereby increased by $38,090,528.00, from $9,790,832.00 to
$47,881,360.00, which includes a
$1,200,000 Owner's Allowance. The amount of $47,881,360.00 includes the previously released
contract amount of $9,790,832.00 as further described in Exhibit A. The Owner's Allowance is to include capital eligible items for
steel, roofing, building envelope, and shop drawings for long-lead items i.e., in-wall MEP systems. Draw-downs on the Owner's
Allowance shall be pre-authorized in writing by the Department.
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
Contract No. DCAM-22-RFP-0018 - for design-build services for Browne Education Campus is hereby modified as follows:
1. Scope of Work. The Contractor's scope of work remains unchanged. This Modification No. 1 is a second Early Start Agreement and
increases the Not-to-Exceed ("NTE") Amount to release additional Project funding. Modification No. 1is for the release of funds necessary
for several construction services for the first half of the construction of the Project.
copy to the issuing office.
X D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and DCAM-22-CS-RFP-0018
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)
Contractor is not, is required to sign this document and return
DCAM-22-CS-RFP-0018
9B. Dated (See Item 11)
X
10A. Modification of Contract/Order No. Washington, DC 20007
Atn: Joseph Khoury; Email: joseph@mcnbuild.com
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
10B. Dated (See Item 13)
January13, 2023
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 1 copies of the amendment: (b) By acknowledging receipt of this
E. IMPORTANT:
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
7/13/2023
(Continuation)
Contract Number Page of Pages
DCAM-22-CS-RFP-0018 2 of 2
5. Contract Recap:
Letter Contract Executed: January 13, 2023 995,000.00$
Early Start Agreement 1 Executed: June 13, 2023 8,795,832.00$
Early Start Agreement 2 38,090,528.00$
Total Price 47,881,360.00$
Modification No.
Modification No. 1
X
copies of the amendment: (b) By acknowledging receipt of this
9B. Dated (See Item 11)
June 13, 2023joseph@mcnbuild.com
X
10A. Modification of Contract/Order No.MCN BUILD, INC.
Washington DC, 20007 10B. Dated (See Item 13)
Peter Henry Lyonga
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
Contract No. DCAM-22-CS-RFP-0018 - for design-build services for Browne Education Campus is hereby modified as follows:
1. Guaranteed Maximum Price. The Contract No. DCAM-22-CS-RFP-0018 for Design Build Services for Browne Education
Campus is modified to establish the Contract's Guaranteed Maximum Price ("GMP") in the amount of One Hundred Seven Million
Six Hundred Eighty-Six Thousand Two Hundred Ninety-Six Dollars and Zero Cents ($107,686,296.00) per the terms of
Exhibit A hereto. The Contract value is therefore increased by $59,804,936.00, from $47,881,360.00 to $107,686,296.00. Pre-
approval by the Department is required to use the Owner's Allowance listed in Exhibit B to the GMP Amendment.
copy to the issuing office.
Modification No. 2 to Contract # DCAM-22-CS-RFP-0018
2. Not-to-Exceed Amount. The Contract's NTE amount is hereby increased by $59,804,936.00, from $47,881,360.00 to
$107,686,296.00
E. IMPORTANT:
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
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
1214 28th Street NW,
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 1
X D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and DCAM-22-CS-RFP-0018
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)
Joseph Khoury
Executive Vice President of Construction
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
(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. MCN Build, Inc. 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.
4. Terms & Conditions: All other Terms and Conditions remain unchanged.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
While a total amount of $107,686,296.00 is being certified for capital-eligible items only, there is an ineligible amount of $628,505.40
listed in Exhibit G of the contract. See the non-capital column and associated items. These items are ineligible for capital
expenditure, per the District Capital Guidelines. The goods/services are needed in FY25. There should be no purchases,
commitments, or expenditures for these items until operating funds are available, via a purchase order for the same.
Contractor is not, is required to sign this document and return
Washington, DC 20019
Contracts and Procurement Division
3924 Minnesota Avenue NE, 5th Floor
1. Contract Number
MODIFICATION OF CONTRACT Page of Pages
DCAM-22-CS-RFP-0018 1 2
7. Administered By (If other than line 6)
Department of General Services
6. Issued By:
3. Effective Date 4. Requisition/Purchase Request No. 5. Caption
Modification No. 2 to Contract #
DCAM-22-CS-RFP-0018 See Block 16C
PR-012866
RK278404; RK278417;
RK278410; RK278416
Design-Build Services Browne
Education Campus Modernization
2. Modification Number
Joseph Khoury EVP: Preconstruction
6/6/2024
(Continuation)Contract Number Page of PagesDCAM-22-CS-RFP-00182 of 2Contract Recap:Letter ContractExecuted: January 13, 2023995,000.00$ Contract (ESA1)Executed: June 13, 20238,795,832.00$ Mod 1 to Contract (ESA2)Executed: July 13, 202338,090,528.00$ Mod 2 to Contract (GMP)$59,804,936.00Total NTE Price 107,686,296.00$ Modification No.Modification No. 2 to Contract # DCAM-22-CS-RFP-0018
X
Washington, DC 20019
Contracts and Procurement Division
3924 Minnesota Avenue NE, 5th Floor
1. Contract Number
MODIFICATION OF CONTRACT Page of Pages
DCAM-22-CS-RFP-0018 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. 3 to Contract #
DCAM-22-CS-RFP-0018 See Block 16C PR - N/A Design-Build Services Browne
Education Campus Modernization
2. Modification Number
(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. MCN Build, Inc. 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.
2. Terms & Conditions: All other Terms and Conditions remain unchanged.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
Contractor is not, is required to sign this document and return
X D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and DCAM-22-CS-RFP-0018
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)
Joseph Khoury
Executive Vice President of Construction
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
Peter Henry Lyonga
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
Pr
evious Mod #2 (item 14(1), of the Guaranteed Maximum Price ("GMP") for Contract No. DCAM-22-CS-RFP-0018 for the Design
Build Services for Browne Education Campus is hereby modified to read as follows:
1. Guaranteed Maximum Price. The Contract No. DCAM-22-CS-RFP-0018 for Design Build Services for Browne Education Campus
is modified to establish the Contract's GMP in the amount of One Hundred Seven Million Six Hundred Eighty-Six Thousand Two
Hundred Ninety-Six Dollars and Zero Cents ($107,686,296.00) per the terms of Exhibit A hereto. The Contract value is therefore
increased by $59,804,936.00, from $47,881,360.00 to $107,686,296.00. However, only $45,196,516.70 will be available to the vendor
in FY2024. $13,979,913.90 will be available in FY2025, and $628,505.40 represents an ineligible amount of FY2025 operating funds.
Pre-approval by the Department is required to use the Owner's Allowance listed in Exhibit B to the GMP Amendment.
copy to the issuing office.
Modification No. 3 to Contract # DCAM-22-CS-RFP-0018
E. IMPORTANT:
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
amendment number. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS
PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
1214 28th Street NW,
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers is extended. is not extended.
following methods: (a) By completing Items 8 and 15, and returning 1 copies of the amendment: (b) By acknowledging receipt of this
9B. Dated (See Item 11)
January 13, 2023joseph@mcnbuild.com
X
10A. Modification of Contract/Order No.MCN BUILD, INC.
Washington DC, 20007 10B. Dated (See Item 13)
Joseph Khoury, EVP of Preconstruction
8/29/24
8/29/2024
(Continuation)
Contract Number Page of Pages
DCAM-22-CS-RFP-0018 2 of 2
Contract Recap:
Letter Contract 995,000.00$
Contract (ESA1) 8,795,832.00$
Mod 1 to Contract (ESA2) $ 38,090,528.00
Mod 2 to Contract (GMP)
Executed: January 13, 2023
Executed: June 13, 2023
Executed: July 13, 2023
Executed: July 16, 2024
Executed: August 29, 2024
$ 59,804,936.00
Mod 3 to Contract
(updated item 14(1) of Mod #2 GMP)
-
Total NTE Price
107,686,296.00$
Modification No.
Modification No. 3 to Contract # DCAM-22-CS-RFP-0018
X
9B. Dated (See Item 11)
June 13, 2023joseph@mcnbuild.com
X
10A. Modification of Contract/Order No.MCN BUILD, INC.
Washington DC, 20007 10B. Dated (See Item 13)
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
Contract No. DCAM-22-CS-RFP-0018 - for design-build services for Browne Education Campus is hereby modified as follows:
1. Substantial Completion Date Part 1. The substantial completion date of part 1 is hereby extended to January 6, 2025. The
extension is due to significant PEPCO delays that held up permanent power and subsequently inspections.
copy to the issuing office.
DCAM-22-CS-RFP-0018 / Mod No.4
E. IMPORTANT:
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
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
1214 28th Street NW,
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 1 copies of the amendment: (b) By acknowledging receipt of this
X
D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and DCAM-22-CS-RFP-0018
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)
Joseph Khoury
Executive Vice President of Construction
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
(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. MCN Build, Inc. 15C. Date Signed 16B. District of Columbia 16C. Date Signed
15A. Name and Title of Signer (Type or print) 16A. Name of Contract Specialist
2. 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.
3. Terms & Conditions: All other Terms and Conditions remain unchanged.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
Contractor is not, is required to sign this document and return
Safiullah Baran
Washington, DC 20019
Contracts and Procurement Division
3924 Minnesota Avenue NE, 5th Floor
1. Contract Number
MODIFICATION OF CONTRACT Page of Pages
DCAM-22-CS-RFP-0018 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. 4 to Contract #
DCAM-22-CS-RFP-0018 See Block 16C Design-Build Services Browne
Education Campus Modernization
2. Modification Number
12/5/24
Joseph Khoury, EVP Preconstruction
12/5/24
(Continuation)
Contract Number Page of Pages
DCAM-22-CS-RFP-0018 2 of 2
Executed: January 13, 2023 995,000.00$
Executed: May 8, 2023 −
Executed: June 13, 2023 8,795,832.00$
Executed: July 13, 2023 38,090,528.00$
Executed: July 13, 2023 $59,804,936.00
Executed: August 29, 2024 −
−
Contract Recap:
Letter Contract
Mod 1 to LC
Contract (ESA1)
Mod 1 to Contract (ESA2)
Mod 2 to Contract (GMP)
Mod 3 to Contract (GMP)
Mod 4 to Contract
Total NTE Price
107,686,296.00$
Modification No.
Modification No. 4 to Contract # DCAM-22-CS-RFP-0018
X
Washington, DC 20019
Contracts and Procurement Division
3924 Minnesota Avenue NE, 5th Floor
1. Contract Number
MODIFICATION OF CONTRACT Page of Pages
DCAM-22-CS-RFP-0018 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. 5 See Block 16C PR-015094
RK305039
Design-Build Services Browne
Education Campus Modernization
2. Modification Number
(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. MCN Build, Inc. 15C. Date Signed 16B. District of Columbia 16C. Date Signed
15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer
2. 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.
3. Terms & Conditions: All other Terms and Conditions remain unchanged.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
Contractor is not, is required to sign this document and return
Peter Henry Lyonga
X
D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and DCAM-22-CS-RFP-0018
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)
Joseph Khoury
Executive Vice President of Construction
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
Contract No. DCAM-22-CS-RFP-0018 for Design-Build Services for Browne Education Campus is hereby modified as follows:
1. Guaranteed Maximum Price. The Guaranteed Maximum Price ("GMP") is hereby increased by $2,339,557.41 from
$107,686,296.00 to $110,025,853.41. The amount of $2,339,557.41 is for additional work described in the Contractor's price
proposal (Exhibit A), and BCD (Exhibit B). In no event shall the Contractor be paid more than $110,025,853.41 for the Contract,
including the work authorized in this Modification No. 5 unless the Contractor is authorized to exceed this limit in advance and in
writting by a DGS duly authorized Contracting Officer.
copy to the issuing office.
DCAM-22-CS-RFP-0018
E. IMPORTANT:
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
amendment number. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS
PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
1214 28th Street NW
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers is extended. is not extended.
following methods: (a) By completing Items 8 and 15, and returning 1 copies of the amendment: (b) By acknowledging receipt of this
9B. Dated (See Item 11)
June 13, 2023joseph@mcnbuild.com
X
10A. Modification of Contract/ Task Order No.MCN BUILD, INC.
Washington DC, 20007 10B. Dated (See Item 13)
Joseph KHoury, EVP
6/5/2025
(Continuation)
Contract Number Page of Pages
DCAM-22-CS-RFP-0018 2 of 2
4. Contract Recap:
Letter Contract Executed: January 13, 2023 995,000.00$
Contract (ESA1) Executed: June 13, 2023 8,795,832.00$
Mod No. 1 to Contract (ESA2) Executed: July 13, 2023 38,090,528.00$
Mod No. 2 to Contract (GMP) Executed: July 16, 2024 59,804,936.00$
Mod No. 3 to Contract (Fund Availibility) Executed: August 29, 2024 -$
Mod No. 4 to Contract (Time Extension) Executed: December 5, 2024 -$
Mod No. 5 to Contract (GMP Increase) 2,339,557.41$
Total NTE Price 110,025,853.41$
Modification No.
Modification No. 5
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Contracts & Procurement
EXHIBIT A
Contractor Price Proposal
[EXHIBIT WILL APPEAR ON THE FOLLOWING PAGE]
1214 28th Street NW
Washington, DC 20007
202.333.3424
PCO #: 030
Title:
Date: 5/14/2025
Description Labor Material Equipment Subcontract Cost
Freestate Generator Cost 254,703.66 $ 254,703.66 $
Freestate Infrastructure Cost & Repairs 472,114.38 $ 472,114.38 $
Freestate - Overtime 325,861.26 $ 325,861.26 $
ProAir - Overtime to Accelerate 102,014.12 $ 102,014.12 $
ProAir - Off-hours Work 221,256.42 $ 221,256.42 $
Temp Heating - Sunbelt Rentals 34,953.33 $ 34,953.33 $
District - Replacement Ceiling Tile & Repairs 36,143. 00 $ 36,143.00 $
District Drywall - Overtime 134,510.00 $ 134,510.00 $
District Paint - Overtime 46,702.00 $ 46,702.00 $
District Elevator - Overtime 3,871.00 $ 3,871.00 $
Fencing (Temp & repairs) 1,848.47 $ 1,848.47 $
Richter 53,000.00 $ 53,000.00 $
Design Team 25,497.60 $ 25,497.60 $
RC 305,217.16 $ 305,217.16 $
GRs 9,370.22 $ 9,370.22 $
GCs 145,400.00 $ 145,400.00 $
Subcontractor Bond (2%) 43,449.25 $ 43,449.2 5 $
Summary: - $ - $ - $ 2,215,911.87 $ 2,215,911. 87 $
Insurance (2%) 44,318.24 $
Performance & Payment Bond (1.5%) 33,903.45 $
Fee (1.98%) 45,423.84 $
Total: 2,339,557.41 $
Cost Breakdown
PEPCO Delay Cost
Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Contracts & Procurement
EXHIBIT B
Basic Change Directive
[EXHIBIT WILL APPEAR ON THE FOLLOWING PAGE]
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
3924 Minnesota Avenue, NE, 5th Floor, Washington DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
VI
A ELECTRONIC MAILONY: joseph@mcnbuild.com
O
ctober 23, 2024
J
oseph Khoury
Executive Vice President
MCN Build, Inc.
1214 28th Street NW,
Washington, DC 20007
S
ubject: Basic Change Directive No. 1
Contract No. DCAM -22-CS-RFP-0018
Design-Build Services For Browne Education Campus Modernization
Dear Mr. Khoury:
Immediately upon receipt of this BCD No.1 to Contract No. DCAM-22-C S-RFP-0018
(“Contract”) MCN Build, Inc. is hereby directed to proceed with the attached Description of
Change (Attachment A).
Your request for an increase in the Contract amount or time is to be made to the Government of
the District of Columbia, within ten (10) calendar days upon receipt of this BCD. The request
shall be submitted to the Department of General Services ( “DGS”) Project Manager, Cassidy
Mullen via email at cassidy.mullen@dc.gov. An increase in the Contract amount resulting from
this BCD shall not exceed $970,000.00.
Your request for an increase shall include a detailed breakout of the cost of labor, material,
equipment, overhead, profit, and/or commission (including all material receipts or proposals
from suppliers); and any pertinent date that affects the subject change. Should an extension of the
period of performance be a consideration, a complete justification is also required, explaining the
time involved and how this change affects the Contract as a whole.
MCN Build, Inc. shall also describe the activity or activities on the approved Project Schedule
that are affected, and the number of days each activity’s duration has to be increased or
decreased. However, all items of work not affected by this change shall be completed within the
time specified in the Contract.
Please be advised that all potential change orders (“PCO”) will be analyzed by DGS. Any PCOs
with unjustified and/or superfluous requests for additional cost/time requests will be rejected.
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Page 2 of 4
3924 Minnesota Avenue, NE, 5th Floor, Washington DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
If you have any questions, please contact Peter Henry Lyonga, Contracting Officer via email at
peterhenry.lyonga@dc.gov.
Sincerely,
Peter Henry Lyonga
Contracting Officer
Enclosure
CC. Cassidy Mullen, Kerric Baird
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Page 3 of 4
3924 Minnesota Avenue, NE, 5th Floor, Washington DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
October 23, 2024
Attachment A
Design-Build Services For Browne Education Campus Modernization
Change Directive No. 1
Contract No. DCAM-22-CS-RFP-0018
Description of Change
The Browne Education Campus modernization involves the complete renovation of the existing
historical building and the construction of a new gymnasium wing. Part of the scope of the
project is to coordinate with Pepco to bring new permanent power to the building. The existing
power source is not sufficient to power the new building and is also extremely unreliable.
Browne EC, and adjacent Phelps High School, have dealt with repeated power outages over the
last several years.
Pepco has been delayed in bringing new permanent power to Browne, which puts the December
2024 completion in jeopardy. Permanent power is needed not only to power an occupied
building, but to allow DGS, its contractors, and consultants to start equipment and perform
testing and commissioning. Using the existing power is not a viable option due to its
unreliability, which puts building HVAC and life/safety at risk; but also, because its variability
may cause serious and irreparable damage to the new equipment.
Therefore, DGS would like to direct MCN Build to provide temporary power such that the
building may be started up, tested, commissioned, and ready for students and staff. DGS CCSD
and MCN Build have agreed upon an estimate of $970,000.00 for the following work:
(i) Investigate site conditions for alternate pathways of power to the Browne EC campus;
(ii) Installation of 4” raceway from Browne EC to nearby Two Rivers Charter School
(former Young Elementary School) campus;
(iii) Replace the wiring as necessary;
(iv) Upgrade service cables at Browe EC;
(v) Design and engineering, as needed;
(vi) Coordinate design with utilities;
(vii) Obtain permits and authorization from utilities, as needed;
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Page 4 of 4
3924 Minnesota Avenue, NE, 5th Floor, Washington DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
(viii) Adjust other trades to accommodate the schedule of temporary power work, including
overtime, as needed;
(ix) Schedule outages with Pepco; and
(x) Install and maintain two (2) 500KW temporary generators to allow trades inside the
building to continue uninterrupted.
-1-
DESIGN-BUILD AGREEMENT
FOR
BROWNE EDUCATION CAMPUS MODERNIZATION
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
MCN BUILD, INC.
CONTRACT NUMBER: DCAM-22-CS-RFP-0018
-2-
PROJECT INFORMATION
A. PROJECT SUMMARY
1. Project Name:
Design-Build Services for Browne
Education Campus Modernization
2. Project Address: 850 26th Street NE, Washington, DC
20002
3. Agreement Type: Design-Build with Guaranteed Maximum
Price
4. Client Agency: District of Columbia Public Schools
(“DCPS” or “Client Agency”)
5. Design-Builder: MCN BUILD, INC.
6. Agreement Amounts:
i. Initial NTE: $9,790,832
ii. Project Budget: $88,000,000
7. Design-Builder Compensation:
i. Design Fee: $5,750,000
ii. Design-Build Fee: $1,750,000
a. Base Design-Build Fee: (60%) $1,050,000
b. At-Risk Design-Build Fee: (40%) $700,000
iii. Maximum Cost of General
Conditions: $3,325,000
iv. Owner-Directed Allowances:
Permit Allowance, ($900,000),
Art Allowance, ($450,000),
Utility Allowance, ($500,000).
v. Preconstruction Fee (15% of the
Base Design-Build Fee) $157,500
vi. Contingency: To be determined at GMP
8. Disincentive Fee for Failure to Timely
Submit $7,500 plus $500 per day, per deliverable
9. Liquidated Damages for Delay in
Substantial Completion: $500 per day
-3-
10. GMP Basis Project Documents
Submission Date (Exhibit M): August 17, 2023
11. Substantial Completion Dates:
Part 1 Substantial Completion Date is
December 9, 2024
Part 2 Substantial Completion Date is
July 15, 2025
12. Final Completion Date: January 15, 2026
13. Administrative Term Expiration
Date: March 15, 2027
14. Letter Contract:
i. Period of Performance
January 13, 2023 (date of execution of
Letter Contract by the Department )
through December 9, 2024 (“Part 1
Substantial Completion Date”) and July
15, 2025 (“Part 2 Substantial Completion
Date”) with an Administrative Term of
March 15, 2027.
ii. NTE Amount: $995,000
14. GMP Basis Project Documents Design Development Documents
15. Key Personnel Replacement: $25,000 per replacement
16. Assumptions and Clarifications Refer to Exhibit W
Page 4 of 121
DESIGN-BUILD AGREEMENT
BROWNE EDUCATION CAMUS MODERNIZATION
DCAM-22-CS-RFP-0018
THIS AGREEMENT (“Agreement” or “Contract”) is made by and between the
DISTRICT OF COLUMBIA GOVERNMENT (the “District”), acting by and through its
DEPARTMENT OF GENERAL SERVICES (the “Department” or “DGS”), and
MCN BUILD, INC. a company duly organized under the laws of the District of Columbia ,
and with a place of business at 1214 28th Street NW, Washington, DC 20007 (the “Design-
Builder” or “Contractor” and collectively with the Department, the “Parties”).
RECITALS
WHEREAS, the Department issued a Request for Proposals dated September 16, 2022
(the “RFP”) to engage a design -builder to prepare a design for and to construct and complete
the work at Browne Education Campus located at 850 26th Street NE, Washington, DC 20002
(the “Project”); and
WHEREAS, the Department intends to implement the Project through a design -build
approach. The scope of work for the Project will be divided into two phases: (i) the design /
preconstruction phase; and (ii) the construction phase; and
WHEREAS, the Department expects that the Project be completed no later than
December 9 , 2024 (“Part 1 Substantial Completion Date” ), and July 15, 2025 (“Part 2
Substantial Completion Date”) (collectively, the “Substantial Completion Dates”); and
WHEREAS, the Design -Builder submitted a proposal entitled Design-Build Services
for Browne Education Campus Modernization dated October 17, 2022, to provide design-build
services for the Project; and
WHEREAS, the Department wishes to retain the Design -Builder to provide design -
build services for the Project, which is to include design and preconstruction, and construction,
and six months of maintenance services for Browne Education Campus Modernization; and
WHEREAS, the Design -Builder wishes to provide the architectural, engineering,
construction, and related services necessary to complete the Project, subject to the terms and
conditions set forth in this Agreement; and
WHEREAS, the Department has retained the services 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 underlying budget for the Project, which includes but
is not limited to all design fees, hard and soft construction costs, and equipment, fees, general
conditions of the Design-Builder, and including an allowance for the maintenance of the school
and grounds per the maintenance and operations plan until achieving Final Completion (such
budget, the “Project Budget”); and
WHEREAS, the Department and the Design-Builder entered into a letter contract dated
January 13, 2023 (the “Letter Contract”) pursuant to which the Design-Builder was authorized
Page 5 of 121
to proceed with certain design , preconstruction, abatement, and demolition services in
furtherance of the Project.
NOW, THEREFORE, the Department and Design -Builder, for the consideration set
forth herein, mutually agree as follows.
Page 6 of 121
DEFINITIONS
Section 1.1. Administrative Term.
The Agreement shall have an administrative term (the “Administrative Term”) that runs
from the effective date of the notice to proceed (“NTP”) to the Administrative Term Date set
forth in the Project Information Section above. In addition, within this time the Design-Builder
shall execute and submit a Final Release of Liens and Claims in a form and format required by
a contracting officer (“CO” or “Contracting Officer”), inclusive of providing the Department
with a complete set of any product manuals ( “O&M”) and training videos, if applicable . The
Administrative Term is established for the sole purpose of permitting the Department’s Office
of the Chief Financial Officer to process payments in the event any payments become
due. Notwithstanding the foregoing, nothing herein shall be construed to: (i) extend the
Substantial Completion Date; (ii) extend the Final Completion Date; or (iii) limit the
Department’s ability to assess liquidated damages thereon.
Section 1.2. Agreement.
The term s “Agreement” or “Contract” shall m ean this entire, integrated agreement
between the Department and the Design-Builder with respect to the Project, consisting of this
document and the Exhibits thereto, including but not limited to the Standard Contract
Provisions (Construction Contracts and Architectural/Engineering Services Contracts) , the
construction documents released for the Design-Builder’s use and any change orders, contract
modifications, or change directives that have been executed by the Department.
Section 1.3. Client Agency.
The governmental or quasi -governmental entity , represented by the Department,
requesting the Project.
Section 1.4. Construction Documents.
The final Drawings and Specifications, as prepared, sealed by the Design-Builder’s
architect in accordance with the law, and issu ed 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 Des ign-Builder
shall carry out the bulk of the construction and manage the completion of the design for the
Project.
Section 1.6. Cost of General Conditions.
The Cost of General Conditions shall have the meaning set forth in Section 0 of this
Agreement.
Section 1.7. Contract Documents.
The term “Contract Documents” or “Contract” as used herein means RFP, Addenda,
Contract Form, Standard Contract Provisions, Instructions to Bidders, General Provisions,
Labor Provisions, Performance and Payment Bonds, Specifications, Special Provisions,
Contract Drawings, approved written Change Orders and Agreements required to acceptably
complete the Contract, including authorized extensions thereof.
Page 7 of 121
Section 1.8. Design/Preconstruction Phase Services.
The services to be provided under Article 3 constitute the design & preconstruction
phase services to be performed by the Design-Builder.
Section 1.9. Drawings.
The drawings are the graphic and pictoria l portions of the Contract Documents,
wherever located and wherever issued, showing the design, locations and dimensions of the
Work, generally including plans, elevations, sections, details, schedules, and diagrams.
Section 1.10. Final Completion.
At the point at which Part 1 and Part 2 Substantial Completion have been achieved, all
punchlist items noted at Substantial Completion (Part 1 and Part 2) 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 Completion Date may be modified only by Change Order or Change
Directive in accordance with the Agreement.
Section 1.12. Fully Complete.
To undertake all of the Work necessary to fully construct and complete the Project and
execute all tasks necessary to obtain the final certificate of occupancy for the Project from the
District of Columbia; submit final lien releases from the Design -Builder and Subcontractors
and material suppliers; complete all punch list items to the Department’s approval and sign -
off; and cause all representations, warranties and guarantees to be honored and otherwise fulfill
all of the requirements set forth in the Agreement.
Section 1.13. Guaranteed Maximum Price or GMP.
The maximum amount, including, but not limited to, the design-build fee and the cost
of the Work that will be paid to the Design-Builder to Fully Complete the Project as set forth
in Article 4. The Guaranteed Maximum Price (“GMP”) may be modified only by Change
Order, Contract Modification , or Change Directive in accordance with the Agreement. The
GMP shall be established in the GMP Amendment.
Section 1.14. Hazardous Material.
Hazardous Material includes but is not limited to, a ny toxic substance or hazardous
chemical defined or regulated pursuant to federal, state , or local laws relating to pollution,
treatment, storage or disposal of waste, or protection of human health or the environment. Such
laws include, without limitation, the comprehensive environmental respo nse, the
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 M aterials shall also include
petroleum and petroleum by-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 (“Noti ce to
Proceed” or “NTP”).
Page 8 of 121
Section 1.16. Project Schedule.
The schedule for the Project (“Project Schedule”) agreed to by the Department and the
Design-Builder. Such schedule shall include a baseline schedule as updated periodically by
the Design-Builder, approved by the Department. The Project Schedule shall not be changed
except a Contract Modification, Change Order , or Change Directive issued by the
Department’s 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 part ner or
member of the entity comprising the Design-Builder; (3) any entity that controls, is controlled
by, or is under common control with the Design -Builder; or (4) any entity that controls, is
controlled by, or is under common control with any entity tha t is part of the Design -Builder.
Self-Performed Work is distinguished from trade work performed by Subcontractors
unaffiliated with the Design-Builder or the entities of which the Design-Builder is comprised.
Section 1.18. Services.
The services to be provided pursuant to the Agreement shall include the Design &
Preconstruction Phase Services and the Construction Phase Services necessary to deliver the
Project.
Section 1.19. Specifications.
The Specifications are that portion of the Contract documents consisting of the written
requirements for materials, equipment, construction systems, standards and workmanship for
the Work, and performance of related services.
Section 1.20. Standard Contract Provisions.
The District of Columbia Department of General Services Standard Contract Provisions,
General Provisions (Construction Contract s and Architectural/Engineering Services
Contracts), as amended, are attached hereto as Exhibit J and incorporated herein.
Section 1.21. Subcontractor.
Any person, natural or legal, to whom the Design-Builder delegates performance of any
portion of the Work required by the Agreement. The term “Subcontractor,” used without a
qualifier, shall mean a subcontractor in direct contractual privity with the Design -Builder.
“Subcontractors at all tiers” shall mean not only those Subco ntractors in direct contractual
privity with the Design -Builder and not the Department , but also those performing Work
pursuant to sub -subcontracts, and so on. “Subcontractors” shall include both those who are
retained to perform labor only and those who are retained both to perform labor and to supply
material or equipment. “Subcontractors” shall also include design professionals who are not
the Design-Builder’s employees and to whom the Design -Builder delegates any part of its
responsibilities under the Agreement, except that references to “trade Subcontractors” shall
exclude design professionals.
Section 1.22. Substantial Completion.
Substantial Completion (Part 1 and Part 2) shall mean that all of the following have
occurred: (1) the construction and installation work have been completed with only minor
punch list items remaining to be completed; (2) a temporary certificate of occupancy and all
other required permits or approvals have been obtained including but not limited to DC
Department of Health (DOH) approval of the kitchen and health suite ; (3) final copies of all
operating and maintenance manuals and draft warranties required by the Agreement have been
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delivered to the Department and the Client Agency; (4) any supplemental training session
required by the Ag reement for operating or maintenance personnel have been scheduled and
the Design Builder shall provide final videotaped recordings within thirty (30) days of the
Substantial Completion Date; (5) all clean-up required by the Agreement has been completed;
(6) the Project is ready for the Department and Client Agency to use it for its intended purpose;
and (7) 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. “Minor punchlist items” are defined for this
purpose as items that, in the aggregate, can be completed within thirty (30) days without
interfering with the Department or Client Agency’s normal use of the Project.
Section 1.23. Substantial Completion Date.
The date established herein by which the Design -Builder shall achieve Substantial
Completion. The Substantial Completion Date may be modified only by Change Order ,
Contract Modification, or Change Directive in accordance with the Agreement.
Section 1.24. Work.
The term “Work” refers to any and all work done in 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 January 1 3, 2023 . Pursuant to the terms of the Letter
Contract, upon execution of this Agreement by the Department (the “Agreement Effective
Date”), the Letter Contract shall automatically terminate and shall merge into and be
superseded by this Agreement. The Pa rties 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 und er this Agreement shall commence from the date of
execution of the Letter Contract by the Department and shall terminate upon the expiration of
the Administrative Term or upon termination by the Department pursuant to Articles 5 and 6
of the Standard Contr act Provisions (Construction Contracts) and Article 8 of the Standard
Contract Provisions (Architectural & Engineering Services Contracts).
Section 2.3. Relationship of Parties.
The Design-Builder accepts the relationship of trust and confidence established with the
Department by this Agreement, and covenants with the Department to furnish the Design -
Builder’s reasonable skill and judgment and to cooperate with the Program Manager in
furthering the interests of the Department. The Design -Builder shall use its best eff orts to
perform the Work and complete the Project in an expeditious and economical manner
consistent with the interests of the Department. The Department shall endeavor to promote
harmony and cooperation among the Department, Design -Builder, Program Manag er, 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 Proj ect 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 and keep all information and data obtained throughout
the performance of the Project whether related to the Agreement, the Work in all of its aspects,
the Department, and the Department’s employees confidential, during and following the term
of the Agreement and shall not use the information in connection with any other matters; nor
shall it disclose any such information to any other person, firm or corporation, unless disclosure
is required pursuant to a court order, subpoena or other regulatory authority. The Design -
Builder shall not be divulged of confidential information without the individual’s and the
Department’s written consent and only in accordance with District 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 a re required
to safeguard this information and immediately notify the Department of any breach or
suspected breach in the security of such information. The Design -Builder and all
Subcontractors shall allow the Department to both participate in the investiga tion of incidents
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and exercise control over decisions regarding 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-Builde r shall provide Design-Build Service s require d for the fully
modernized facility of Browne Education Campus, located 850 26 th Street NE, Washington,
DC 20002. The Project includes full design and construction services for an approximately
132,906 square-foot school facility for the Browne EC program (collectively, the “Work”).
The Design-Builder shall assume a partial renovation of the 1932 original building, a
partial renovation of the 1935 addition, a full renovation of the 1971 addition, and assume that
the 1953 addition (the “South Wing”) will be fully occupied and operational during the Project.
Additionally, access and parking to the South Wing and play areas must remain available for
the duration of the Project.
The Trailer Swing Space is located at the existing trailer campus nearby at 810 26 th
Street NE, Washington, DC 20002. Since these trailers may be offline for over a semester, the
Design-Builder will be required to include a new Certificate of Occupancy and DC Health
inspection for the cooking trailer. The South Wing Swing Space will be located in the South
Wing of the existing Browne Education Campus. A requirement for the South Wing Swing
Space will be to provide a fully functional cooking trailer to serve the 6th-8th grade students
occupying the South Wing. This cooking trailer shall be connected to the South Wing by a
covered, ADA-accessible walkway.
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 Contracts
Documents.
b) To provide all design , construction, and construction management services necessary to
implement the goals of the Project inclusive of, but not limited to, the following: civil,
architectural, electrical, structural, mechanical, traffic engineering, envelope consultants ,
and historic preservation , furniture , and design services as required for the Project;
construction management services inclusive of budgeting, value engineering (“Value
Engineering”), scheduling, Project phasing, Project administration, management and
coordination of subcontractors.
c) To conduct subsurface investigation work if and as required for the Project.
d) To furnish and provide all materials, management, personnel, equipment, hazardous
material abatement, supervision, labor , and other services necessary to complete the
Project.
e) To provide the necessary design, consultants , and documentation for all permitting,
zoning, historic preservation, and US Commission of Fine Arts approvals.
f) To provide move coordination and logistics support for the Project.
The Design-Builder shall provide the Department with a GMP based on the Design
Development Documents and a subsequent GMP package shall follow this Agreement.
During the Construction Phase, the Design -Builder shall construct the Project. During
the Construction Phase, the Design-Builder shall be required to cause the Work to be completed
in a manner consistent with the design development documents (“Design Development
Documents”) design documents and phasing plan approved by the Department and shall
provide all labor, materials, insurance, bonds , and equipment necessary to fully complete the
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Project in accordance with the drawings, specifications, Project Schedule, and Project Budget
that is issued for the Project. The Design -Builder shall be responsible for pa ying for and
obtaining all necessary permits and to pay all necessary fees for utility connections and the
like.
Section 2.6. Program Manager.
The Department has engaged a Program Manager to provide certain program
management functions. Such Program Manager shall, at all times, be acting solely for the
benefit of the Department, not the Design-Builder. The Design-Builder hereby acknowledges
and agrees that only a duly authorized and designated Contracting Officer shall have the
authority to issue Change Orders , Contract Modifications, or Change Directives on the
Department’s behalf. As of the date that this Agreement is executed, the Department’s
duly authorizing Contracting Officers are set forth in Exhibit I.
Section 2.7. General Description of Design-Builder’s Duties.
Generally, the Design-Builder shall perform the Services in a professional workmanlike
manner. The Design-Builder shall supply and furnish at the location where the Work is to be
performed all design service, labor, materials, equipment, tools, services, and supervision, and
shall bear all items of expense, necessary to complete and satisfactorily perform this
Agreement, except such items that the Department, in this Agreement, specifically agrees to
supply or furnish to or for the use of the 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 Work ” or “SOW”) and shall be provided by the
Design-Builder at the Design-Builder’s sole expense.
The Design -Builder will be required to work with the Department and the Project
stakeholders through a collaborative design process to advance the programmatic educational
specifications (“Educational Specifications” or “Ed Specs”) to a fully realized Project in
accordance with the available Project Budget. The Design-Builder will be required to engage
in extensive pre-design and preconstruction efforts to ensure that the design is developed in a
manner consistent with the Department’s goals for the Project (e.g., programmatic, budgetary,
schedule and quality); to develop a comprehensive Project phasing; to solicit competitive trade
bids for the construction work and to develop an acceptable guaranteed maximum price and
corresponding scope and schedule for the work ; and to implement the requisite constructio n
and other work necessary no later than the Substantial Completion Date. The Design-Builder
will be required to provide move coordination and logistics support. The Design-Builder shall
be responsible for all items of cost except for those items set forth in Section 9.7 of this
Agreement and will be required to provide a “turn-key” Project ready for occupancy by District
of Columbia Public Schools (“DCPS” or “Client Agency”).
Section 2.8. Warranties and Representations
2.8.1. All disclosures, representations, warranties, and certifications the
Design-Builder makes in its proposal in response to the RFP shall remain
binding and in effect throughout the term of the Agreement. The Design-
Builder reaffirms that all such disclosures, representations, warranties, and
certifications are true and correct.
2.8.2. If any disclosure, representation, warranty , or certification the Design -
Builder has made or makes pursuant to the RFP or the Agreement,
including, without limitation, representations concerning the Design -
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Builder’s construction or design experience and qualifications, claims or
litigation history, or financial condition, is materially inaccurate, that shall
constitute a material breach of the Agreement, entitling the Department to
any and all available remedies.
2.8.3. The terms and conditions of this Section 2.8 shall apply during both the
Design & Preconstruction and Construction Phases.
Section 2.9. Responsibility for Agents and Contractors.
At all times and during both the Design & Preconstruction and Construction Phases, the
Design-Builder shall be responsible to the Department for any and all acts and omissions of
the Design -Builder’s agents, employees, Subcontractors, Sub -Subcontractors, material
suppliers, and laborers, and the agents and employees of the Subcontractors, Sub -
Subcontractors, material suppliers, and laborers performing or supplying Work in connection
with the Project.
Section 2.10 Building Information Modeling (BIM). BIM is required to be used
throughout the lifecycle of the Project, including all Project phases from Project planning and
concept design through construction, as -built, and into facilities management. The BIM
requirements are provided as Exhibit S. It is expected by the Department that all team members
are to be committed to the use of BIM in the Project, share their ideas of BIM expertise with
the team, provide BIM data as requested by other team members, look for cost savings and
schedule improvements during the entire Project duration, and endeavor to leave as a legacy a
fully updated, as-built, facility management ready building information model.
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DESIGN-BUILDER’S DESIGN & PRECONSTRUCTION SERVICES
3.1 Design and 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 sof t and hard copies
of the complete set of 35% Schematic Design Documents; (iv) prepare and submit soft and
hard copies of the complete set of 60% Design Development Documents, Specifications and
Design-Builder’s cost estimate and schedule; (v) prepare soft and hard copies of the complete
set of 95% Construction Documents, Specifications and Design -Builder’s cost estimate and
schedule; (vi) review existing condition assessment and recommendation; and (vii) obtain all
necessary building permits to support the Project Schedule.
Without limiting the generality of the foregoing, during the Preconstruction Phase, the
Design-Builder shall: (i) work with its Architect and any design consultants to advance the
design for the Project in consultation with the Client Agency, the Department and its Program
Manager; (ii) obtain bids from trade Subcontractors to perform the work described in the
Design Development Documents and provide bid tabulations to the Department; (iii) engage
in any Value Engineering and scoping exercises necessary to return the cost of the work to the
Project Budget; (iv) engage in preconstruction activities, including identifying any long -lead
items; (v) develop a GMP proposal for the Project; and (vi) enter into a GMP for the Project.
Throughout the Design & Preconstruction Phase, the Design-Builder shall schedule and attend
regular meetings with the Department, the Program Manager, and the Design -Builder’s
Architect/Engineer.
3.1.1 Design and Preconstruction Phase Initial Deliverables
Section 3.1.2.1 Building System Assessment. If requested by the Department, within
fourteen (14) days after the Preconstruction NTP is issued, the Design -Builder shall conduct
an assessment report of the building systems and submit a written report to the Department that
assesses whether the existing building systems can accommodate the new space or 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 a ssess all of the buildings key systems, including, but not limited to, HVAC,
kitchens, roof, windows, electrical, lighting, audio visual equipment, intercom, fire alarms, and
plumbing.
Section 3.1.2.2 Baseline Schedule. Within ten (10) days after the Preconstruction NTP
is issued, the Design-Builder shall prepare and submit a Baseline Schedule for the Project (the
“Baseline Schedule”). The Baseline Schedule shall be subject to review and approval by the
Department, an d the Design -Builder shall incorporate such adjustments to the Baseline
Schedule as may be reasonably requested by the Department. The Baseline Schedule shall be
prepared in a critical path method (“CPM”) in a sufficient level of detail to permit the
Department and the Design-Builder and any other affected parties to properly plan the Project.
The Baseline Schedule shall show: (i) key design milestones and bid packages; (ii) Building
Permit Submission and Obtaining Building Permit release dates for l ong lead items; (iii)
release dates for key subcontractors; (iv) Substantial and Final Completion Dates ; (v)
excavation complet ion date; (vi) below grade structure complet ion date; (vii) above grade
structure completion date; (viii) temp weather tight; (ix) weather tight; (x) O&M Deliverable
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(9 months before Substantial Completion); (xi) Permanent Power; (xii) MEP Operational; (xiii)
sitework completion date; (xiv) Inspections (xv) Department of Buildings (“DOB”) Review;
(xvi) Conditional Certificate of Occupancy ; (xvii) Certificate of Occupancy ; (xviii) Staff
Move-in (3 weeks before student move in) ; (xix) Student Move -In; and (xx) QA/QC
Milestones. The Baseline Schedule shall include durations and logic ties for those buildin g
systems that the Design -Builder is recommending for replacement. 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
B.
Section 3.1.2.3 Concept Design. No later than 12 weeks after the Preconstruction NTP
is issued, the Design -Builder shall prepare and submit a proposed concept design for the Ed
Specs. As part of the concept design phase the Department requests three (3) concept options
or alternatives. Each of the concept design 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. Following the review of the concept design submissions by
DCPS and the Department, the Department shall approve a final concept design. The Design -
Builder shall make revisions to the concept design submission as necessary to incorporate
comments, feedback and other direction provided by DCPS and th e 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 concept design submittal shall
include, but not limited to, the following:
a) Historic resources survey.
b) A minimum of three (3) conceptual floor plans and site plans incorporating the
requirements of the Education al Specifications and site plan showing proposed
location of any building additions.
c) Hazardous materials survey of aff ected spaces. It is understood that the Design -
Builder and/or its design component shall be required to engage the services of
industrial hygienist that is acceptable to the Department to perform such survey.
d) Educational Specifications update and verification and an overall Plan-to-Program
comparison.
e) Summary of agency review meetings, including but not limited to: Office of
Planning (“OP”), Commission of Fine Arts (“CFA”), Historic Preservation Office
(“HPO”), and National Capital Planning Commission (“NCPC”).
f) Summary of utility coordination and review meetings with PEPCO, Washington
Gas, and DC Water.
g) Summary of meetings with the District Department of Transportation (“DDOT”)
Public Space.
h) Summary of meetings with the Department of Energy and Environment (“DOEE”)
Storm Water Management.
i) Summary of meetings with the Department of Buildings (“DOB”) focused on code
review and green building review.
j) Zoning Analysis.
k) Cost Estimate with Subcontractor input on major trades.
l) Value Engineering analysis and detaile d recommendations for Project savings
(even if the Project is not over budget).
m) Energy Report that includes all recommended strategies applicable to achieving an
Energy ready building and a preliminary energy model.
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n) Quality Control Plan.
o) Existing conditions civil survey.
Section 3.1.2.4 Preliminary Budget Estimate. Concurrently with the delivery of the
concept design, the Design-Builder shall submit a detailed cost estimate of the proposed design
(such estimate, the “Preliminary Budget Estimate”). With regard to building systems (i.e. roofs,
doors, HVAC, security, IT, etc.), the Preliminary Budget Estimate shall be prepared on a
“system” basis that identifies the key building systems or functions and allocates an estimated
cost for each such system. The Design -Build Fee, the cost of general conditions, and
contingencies shall be broken out into separate line items. The primary purpose of the
Preliminary Budget Estimate is to aid the Department and the Client Agency in understanding
the costs associated with key elements of the Project to better prioritize and manage the use of
the funding allocated to this Project. All estimates shall be broken out into three ca tegories:
renovation, new construction, (if applicable), and site work.
Section 3.1. 2.5 Baseline Budget and Program. The Department shall provide the
Design-Builder with a baseline budget and program and comments on the concept design. Such
approval shall be provided (or signed by) the Department’s Deputy Director for Capital
Construction (the “Deputy Director”). In the event the Design-Builder does not receive such
approval within fourteen (14) days after submitting the Preliminary Budget Estimate, it shall
so advise the Program Manager (“ PM”), the Deputy Director and the Contracting Officer in
writing of such failure and request direction. If the Design-Builder fails to provide such notice,
the Design-Builder will be proceeding at its own risk and will be responsible for any redesign
costs associated with budget revisions.
Section 3.1.2.6 Construction Management Plan. The Design-Builder shall submit
a draft of its construction management and project phasing plan (“Construction Management
Plan”) within fourteen (14) days after the Preconstruction NTP is issued to include, but is not
limited to, noise control, hours for construction and deliveries, truck routes, trash and debris
removal plan, traffic and parking control, communications procedures, emergency procedures,
quality control procedures, dust control, public street cleaning and repair, planned occupancy
of public ways, erosion control, tree protection plan, vibration monitoring, existing and
adjacent building surveys plan , temporary fire protection measures, Project signage, pest
control, construction staging plan, and construction logistics plan.
Section 3.1 .2.7 Additional Preconstruction Services. In addition to those items
enumerated above, the Design -Builder shall provide such preconstruction services as are
necessary to properly advance the Project. These services shall include, but are not limited to,
scheduling, estimating, shop -drawings, the ordering of long -lead materials, condition
assessments, conservator studies, archeological studies, recommended testing, additional
geotechnical testing, and monitoring of historic assets.
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Section 3.1.2.8 Deliverables Liquidated Damages . The Design-Builder acknowledges that
the Department is engaging the Design-Builder to provide an extensive level of preconstruction
support services to minimize the potential for cost overruns, schedule delays or the need for
extensive Value Engineering/r e-design late in the Project and that the deliverables required
under this Section 3.1. 2.8 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 3.1.2 (and unless
such failure is the result of any event of Force Majeure), the Design-Builder shall be subject to
disincentive in an amount of Seven Thousand Five Hundred Dollars ($ 7,500) plus Five
Hundred Dollars ($500) per day after receiving written notice from the CO of failure to submit
such deliverables.
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 t hat
these representatives and other stakeholders can have input in and approve the design direction
at appropriate times. The Design-Builder shall ensure that the design is developed in a manner
consistent with the Project Budget, i.e., designed-to-budget, as well as the programmatic
requirements set forth and attached hereto as Exhibit A and the Department’s other
requirements for the Project. The Project shall be designed in such a way so as to achieve, at
a minimum, LEED for SCHOOLS – GOLD principles. All Design Documents shall be
prepared by the Design -Builder’s duly licensed architects and engineers. The GMP basis
documents and all interim design submissions shall be subject to review and approval by the
Department, and the Design -Builder shall be required to revise these Project documents to
address concerns raised by the Department and/or other Project stakeholders and such revisions
shall not entitle the Design-Builder to an increase in the Design Fee.
Section 3.1.3.1 Design Management. During the design and Preconstruction Phase,
the Design-Builder, in consultation with the Department, shall : (i) develop conceptual
plan and cost estimates; (ii) develop a draft final conceptual site plan/response and cost
estimate; (iii) prepare and submit and soft copies of the complete set of 35% Schematic
Design Documents; (iv) prepare and submit soft copies of the complete set of 60%
Design Development Documents, Specifications and Design-Builder’s cost estimate and
schedule; (v) prepare soft copies of the complete set of 95% Construction Documents,
Specifications and Design -Builder’s cost estimate and schedule; (vi) review existing
condition assessment and recommendation , and (vii) obtain all necessary building
permits to support the Project Schedule.
Without limiting the generality of the foregoing, during the Preconstruction Phase, the
Design-Builder shall: (i) work with its Architect and consultants to advance the design
for the Project in consultation with the Client Agency, the Department, and its Program
Manager; (ii) obtain bids from trade subcontractors to perform the work described in the
Design Development Documents and provide bid tabulations to the Department; (iii)
engage in any Value Engineering and scoping exercises necessary to return t he cost of
the work to the Project Budget; (iv) engage in preconstruction activities, including
identifying any long -lead items; (v) develop a GMP proposal for the Project; and (vi)
enter into a GMP for the Project. Throughout the Design & Preconstruction Phase, the
Design-Builder shall schedule and attend regular meetings with the Department, the
Program Manager, and their 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
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ensure that: (i) the design evolves in a manner that is consistent with the Project Budget
and programmatic requirements, as the same were defined and established by the
Department at the end of the concept design; (ii) the design work is properly coordinated;
and (iii) the required design deliverables are produced on or before the dates
contemplated in the Project Schedule. As part of this undertaking, the Design -Builder
shall provide the following:
Section 3.1.3.1.1 Schematic Design. The Design-Builder shall prepare a schematic
design that is a logical development of the approved concept design and is consistent
with the Project S chedule, Project B udget, and programmatic requirements. The
schematic design shall contain at least the level of detail contemplated in a schematic
design under industry best practices. The design submittal shall specifically identify
any deviations from the approved concept design and shall explain the rationale, cost
and time implications associated with such deviation. The Department shall have the
right to disapprove the schematic design submittal for any reason. The Design -
Builder shall provide maintenance and repair cost services for major design
components and mechanical, electrical and plumbing (“ MEP”) systems selected at
the schematic design phase, which includes conducting a 40 -year life cycle cost
analysis, which includes a detailed list of replacement costs, maintenance costs, an
estimate of repair costs, anticipated energy costs, and a list of other relevant life cycle
costs.
The Design-Builder shall submit a Maintenance and Operations Plan, which, at a
minimum, shall include the following:
i) Standard Operating Procedures (“SOP”) for all building systems, including,
but not limited to, electrical, mechanical, roof, green roof, geothermal, solar,
plumbing, security, outdoor fields, irrigation, landscaping and lighting;
ii) List of equipment that must be kept on site to maintain all building systems;
iii) List of chemicals that must be kept on site to maintain all building systems,
including storage requirements;
iv) Certifications and licenses either required or recommended to maintain all
building systems;
v) Confined space procedures and personal protective equipm ent that must be
used;
vi) Permits and regular inspections that are required to operate the equipment;
vii) List of hardware, software and software licenses that must be purchased and
maintained;
viii) Recurring training on building systems and safety that are necessary to
maintain the building; and
ix) The estimated initial and monthly costs for the successful maintenance and
operations of the facility.
Following the review of the schematic design submission by the Client Agency and the
Department, the Design -Builder shall make revisions to the schematic design submission as
necessary to incorporate comments, feedback , and other direction provided by the Client
Agency and the Department. The Design -Builder’s pricing shall assume that such revisions
will be required, and suc h revisions shall not entitle the Design -Builder to additional
compensation.
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In general, the Design-Builder shall be required to undertake the following tasks during
this phase:
a) Further develop plans and incorporate design changes.
b) Prepare necessary presen tation materials (renderings) to communicate design and
obtain approval of design direction.
c) Participate in meetings with DCPS Staff.
d) Conduct DOEE, DOB, DDOT and DC Water Preliminary Design Review meetings.
e) Engage in no fewer than three (3) community feedback sessions during this phase.
f) Coordination and identification of Public Art locations that will be constructed and
installed as part of the construction phases.
g) Continued coordination with Public Utility Companies: PEPCO and Washington
Gas as well as Verizon should be conducted this shall include submitted load letters
for new or upgraded services.
h) Continued coordination with the Historic Preservation Office (“ HPO”) and the
Commission of Fine Arts (“CFA”).
i) Report and schedule on process for obtain any zoning approvals, if necessary.
j) Identification of long lead materials and creation of bid packages to allow early
release of materials if required by the Project Schedule.
k) The schematic design submittal shall generally follow the deliverables a nd in
addition shall in include at least the following:
a. Digital site and floor plans (including adjacencies and room locations);
b. Preliminary building elevations and sections;
c. Preliminary selection of building materials;
d. Conceptual renderings produced for approval of design direction;
e. Plan-to-Program comparison;
f. Preliminary LEED Scorecard (if required);
g. Design narrative;
h. A preliminary description of proposed building system upgrades (i.e.
HVAC, roofs, windows, kitchen eq uipment, low voltage/IT/AV etc.).
With regard to any proposed building system upgrade, the package shall
include a narrative description of the proposed system and an estimated
line item cost;
i. Cost estimate with Subcontractor input on major trades;
j. Project savings (even if the Project is not over budget);
k. Preliminary furniture design;
l. 3D rendering images as needed, include (4) four at a minimum;
m. Life cycle cost analysis (“LCCA”);
n. An Energy Report that includes all recommended strategies applicable
to achieving an Energy ready building and an energy model evaluation;
o. Maintenance and Operations Plan; and
p. Quality Control Plan.
Section 3.1.3.1.2 Schematic Budget Estimate 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 Preliminary Budget Estimate. The
Design-Builder shall include a cost estimate and Value Engineering analysis and a
detailed recommendation for Project savings (even if the Project is not over budget).
To the extent the budget update shows an overrun from the approved budget, the
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Design-Builder shall submit Value Engineering (not scope reductions, but true Value
Engineering that allows the design to meet all Project requireme nts within Project
Budget) suggestions that would return the Project to Project Budget . Only the
Department shall have the authority to increase the Project Budget, and absent such
direction, the Deign-Builder shall proceed on the assumption that the Project 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 th e design is predicated on a
single manufacturer and, if so, identify at least two (2) comparable products;
and (iii) identify any long -lead delivery items that could adversely affect the
schedule contemplated in this Agreement . To the extent a ny 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 such materials ,
submit pertinent information, make such presentations , and provid e accurate and
complete responses as are necessary to obtain the required land use and entitlement
approvals. Approvals may be required from (i) the Office of Zoning, (ii) O ffice of
Planning (“OP”), and (iii) the CFA. Given the nature of the Work, it is not envisioned
that such approvals will require extensive hearings or submissions.
Section 3.1.4 Design Development Phase & Early Release Packages.
The Design -Builder shall prepare a set of design development documents (“Design
Development Documents”) that is a logical development of the approved schematic
design and is consistent with the Department’s schedule, budget and programmatic
requirements. The Design Development Documents shall contain at least the level of
detail contemplated in industry best practices for design development documents. The
design submittal shall specifically identify any deviations from the approved schematic
design and shall explain the rationale and cost implications ass ociated 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 Design-Builder shall provide maintenance and repair cost services,
which includes conducting a 40-year life cycle cost analysis, which includes a detailed
list of replacement costs, maintenance costs, an estimate of repair costs, anticipated
energy costs, and a list of other relevant life cycle costs. The Design-Builder shall
further refine and expand upon the Maintenance and Operations Plan that was
submitted in the Schematic Submission. The Department shall have the right to
disapprove the Design Development Documents submittal for any reason.
Following the review of the design development submission by the Client Agency and
the Department, the Design-Builder shall make revisions to the design development
submission as necessary to incorporate comments, feedback , and other direction
provided by the Client Agency 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.
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Section 3.1.4.1 Design Development Submission. The Design-Builder shall prepare
the design development submission for review and comment by DCPS 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, equipment;
c) Complete code compliance analysis and drawing;
d) Space-by-space equipment layouts for key spaces. As part of the design
development phase, the Design -Builder and/or the Design -Builder’s
architect and any design consultants shall confer with representatives from
DCPS and the Department regarding these layouts to confirm that they are
acceptable to DCPS;
e) A final lay-out for furniture, fixtures, and equipment;
f) An interior finishes schedule;
g) Preliminary designs for all building system upgrades, including low
voltage/AV/IT. With regard to HVAC systems, the submission should
include: (i) a detailed description of the proposed mechanical systems; (ii)
their general layout, including ‘Single -Line Diagrams’ (aka ‘Riser
Diagrams’); and (iii) any required load calculations. The HVAC des ign
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 the International Living Future Institute (“ 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 determine historic and/or archeological
significance and requirements. Attend meetings and hearings if necessary;
o) Respond in writing to all DCPS comments on plans;
p) Prepare a presentation and provide a minimum of three (3) presentation
boards for each community meeting and present/display onsite. Presentation
boards shall be in full color and include at least four (4) 3 -D renderings;
Presentations shall also include a digital slide presentation;
q) Coordinate final utility plans as required;
r) Act as scribe for all design-related meetings. Distribute meeting minutes to
all attendees;
s) Baseline Schedule bi-weekly update 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
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the District staff for review and approval (60% plan review). Components
to include, but are not limited to:
i. Site plans, paving layouts, traffic circulation, lighting, signage and
utilities;
ii. Floor plans, structural, civil, architectural, MEP, fire protection and
landscaping plans;
iii. Exterior elevations, rendering, and color palette;
iv. Building sections and details, as required;
v. Interior elevations, casework and millwork elevations, as required;
vi. Playground equipment, if applicable;
vii. Stormwater management;
viii. Food service or other equipment, as required;
ix. LEED Information, as appropriate;
x. WELL Score Card;
xi. Final Draft of the “Percent for Art” Public Art Package to be used as
the scope for the Artists’ RFP;
xii. Cost Estimate;
xiii. Value Engineering Analysis and Detailed Recommendation for
Project savings (even if the Project is not over budget);
xiv. An Energy R eport that includes all recommended strategies
applicable to achieving an Energy ready building;
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 schematic
design has been approved, the Department may release the Design -Builder to
commence early start work, including but not limited to hazardous material
abatement, interior demolition, geothermal, below grade work, utility work, or
other e arly activities, as applicable. It is envisioned that this work may be
released in advance of the GMP.
Section 3.1.4.2.2 Long Lead Materials. The Department will release funding
for long -lead items once the Design Development Documents have been
approved. If the Design-Builder believes an earlier release is required in order
to meet the Project Schedule, it shall advise the Department and make a
recommendation as to the requested release date. Any decision to authorize an
early funding release shall be made by the Department in its sole and absolute
discretion.
Section 3.1.4.2.3 Permits. The Design -Builder shall be responsible for
preparing and submitting all of the required permit applications that are
necessary to complete the Project. The Design -Builder shall develop a list of
the required permits and shall track the progress of all such permits through the
review process. The Design-Builder shall update the Department with the status
of each permit that is required for the Project. The Design-Builder shall engage
such permit expediters as the Design-Builder deems necessary or appropriate in
light of the Project’s schedule. The Design -Builder shall participate in DOB’s
accelerated plan reviews and permit approval program as part of the permit
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allowance included in this Contract. The Design -Builder shall provide the
resources necessary to support these requirements.
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Article 4 – FORMATION OF GMP PROPOSAL
Section 4.1. General.
The Design-Builder shall provide the Department with a GMP based on the Design
Development Documents.
During the Design & Preconstruction Phase, the 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 shall propose a GMP (referred to as the “GMP
Proposal”) which shall be submitted in accordance with this Article. The Design -Builder
acknowledges and understands that the GMP Basis Project Document s will be incomplete at
the time it submits its GMP Proposal. Although complete construction Project Documents will
not be available and many details will not be shown on GMP Basis Project Documents or will
otherwise need to be adjusted, the GMP proposed in the Design-Builder’s GMP Proposal shall
be intended to represent the Design-Builder’s offer for the Final Completion of the Project. If
the Design-Builder’s GMP Proposal is acceptable to the Department, it shall be memorialized
in form of an amendment to this Agreement (such amendment, the “GMP Amendment”). Such
amendment shall be in the form of Exhibit L attached hereto.
As part of the GMP Amendment, the Design -Builder shall certify that the GMP
established thereby (i) contains sufficient amounts to perform all Work necessary for the Final
Completion of the Project; and (ii) contains sufficient amounts to provide and construct any
items or facilities that are not contained in the GMP Basis Project Documents, but which are
necessary for a fully functioning facility that meets the programmatic requirements established
for the Project. The Design -Builder will further covenant and agree in the GMP Amendment
that it will perform all of the construction work necessary for the Final Completion of the
Project, including, without limitation, aspects of the Work that are not shown on the GMP Basis
Project Documents, but which are a logical development of the design intent reflected in the
GMP Basis Project Documents, for an amount not to exceed the GMP.
Section 4.2 Review of GMP Basis Project Documents.
The Department has selected the Design -Builder, in large part, because of its special
expertise in constructing similar projects. Before submitting its Guaranteed Maximum Price,
the Design -Builder shall review the GMP Basis P roject Documents for accuracy,
constructability and completeness and shall bring such deficiencies to the attention of the
Department and shall cause its Ar hitect to address any such deficiencies. To the extent that
any such deficiencies in the GMP Basis Project Documents could have been identified by such
review by a competent Design-Builder, such deficiencies shall not be the basis for a change in
the GMP or delaying the Project Schedule.
Section 4.3 Contingency.
The Cost of the Work shall include a contingency , which shall be a sum established by
the Department and the Design-Builder to cover, among other things costs necessary to address
scope expansion that is a logical development of the design, issues arising from or as a result
of deficiencies in the GMP B asis 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
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emergencies, unforeseeable changes in market conditions for materials or labor, or subsurface,
soils or site conditions that were neither known nor reasonably discoverable as of the effective
date of the Agreement (the “Contingency”). During the Construction Phas e, 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 contingency in a timely manner; and (ii) provide the
Program Manager and Contracting Officer with running status of the Contingency balance at
least once every two (2) weeks.
Section 4.4 Trade Bids.
Section 4.4.1 Subcontractors and Suppliers; Bidding Procedures. During
the Design & Preconstruction Phase, the Design -Builder shall seek to develop
subcontractor interest in the Project. Within fifteen (15) days after the
completion of the schematic design, the Desig n-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 trades
packages; (ii) a list of trade Subcontractors that will be invited to bid on each
such package; and (iii) a narrative description of the process. At least three (3)
potential Subcontractors shall be identified for each trade package. A copy of
this deliverable must be submitted to both the Program Manager and the
Contracting Officer. In the event the Department does not approve the proposed
bidding procedures within fifteen (15) days after its receipt, such procedures
shall be deemed approved unless the Department advises that such is still under
review.
Section 4.4.2 Bidding. Following the Department’s approval of the Design
Development Documents, the Design -Builder shall manage the trade bidding
process in accordance with the approved bidding procedures and shall use
commercially reasonable best efforts to solicit at least three (3 ) qualified and
bona fide bids for each trade package that has an expected value in excess of
One Hundred Thousand Dollars ($100,000). Trade packages shall not be
parceled, split or divided to avoid the $100,000 threshold. In addition to the
information n ormally required in such bids, the Design -Builder shall also
require Subcontractors to provide an estimate of the percentage of labor hours
performed in completing the subcontracted work which will be performed by
District residents. The Design-Builder shall carefully document its procedures
for making available bid packages to potential bidders, the contents of each bid
package, discussions with bidders at any pre-bid meetings, bidders’ compliance
with bid requirements, all bids received, the Design-Builder’s evaluations of all
bids, and the basis for the Design -Builder’s recommendation as to which
bidders should be chosen. The Department shall be afforded access to all such
records at all reasonable times so that, among other things, it may independently
confirm the Design -Builder’s adherence to all requirements set forth in the
Agreement, including, without limitation, affirmative action requirements and
subcontracting requirements.
Section 4.4.3 Bid Tab. 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 tabular format that compares the bids received and any other relevant
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information (i.e. exclusions, past performance history, etc.). The bid tabulation
shall include scope assessments and identify required leveling of the trade
submitted. To the extent that the Design -Builder’s award recommendation is
based on scoping adjustments, the Design -Builder shall clearly identify the
scoping adjustment and the need for such adjustments. Such bid tabulation shall
include LSDBE utilization information in addition to price and other
information. Such bid tabulations as well as copies of the bids shall be
submitted to the Department’s Program Manager. The Design -Builder
represents and warrants that the bid tabs so submitted shall fairly represent the
results of the subcontractor bidding process and that the Design -Builder shall
not misrepresent any such data to the Department or its Program Manager.
Section 4.5 Value Engineering.
Based on the trade bids received, the Design-Builder shall prepare a written report
of suggested Value Engineering strategies necessary to reconcile the costs of
constructing the Project Budget, if necessary. The Design -Builder shall meet with the
Department’s representatives to discuss any Value Engineering and changes in the scope
necessary to ensure that the Department’s schedule and programmatic requirements are
met and that the budget is not exceeded. The Design -Builder shall cause the Design-
Builder’s Architect to implement and price any approved Value Engineering strategies.
Section 4.6 Basis of Guaranteed Maximum Price. Based on the trade bids, the
Design-Builder shall submit a GMP Proposal to the Department using ProjectTeam. The
GMP Proposal shall include the following elements:
a) A list of drawings, specifications, addenda, general, supplementary and
other conditions on which the GMP is based.
b) A list of unit prices and allowance items and a statement of their basis. The
Offeror shall include the following allowances: Permit Allowance
($900,000.00), Public Art Allowance ($450,000.00), and Utility Allowance
($500,000.00).
c) Assumptions and clarifications made in preparing the GMP Proposal, noting
in particular any exclusions. The assumptions and clarifications shall take
precedence over the drawings and specifications. The Design -Builder shall
prepare a separate memorandum that highlights any differences between the
then approved drawings and the modifications made in the assumptions and
clarifications. Such memorandum shall specifically address any changes in
the Project aesthetics, functionality or performance.
d) The proposed GMP, including a statement of the detailed cost estimate
organized by trade categories, allowances, contingency, and other items and
the fees that comprise the GMP.
e) An update to the Project’s schedule to which the Design-Builder will agree
to be bound. This update shall be prepared in the same level of detail and in
the same manner as the Baseline Schedule, and without any change to the
Substantial and Final Completion Dates unless approved by the
Department’s Contracting Officer.
f) A subcontracting plan setting forth the names and estimated dollar volume
of the work that will be performed by LSBDEs, as certified by the
Department of Small and Local Business Development, upon which the
GMP is based.
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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) An allowance for the maintenance of the school and grounds per the
Maintenance and Operations plan for up to six (6) months following
Substantial Completion. The allowance shall be based upon at least three (3)
estimates provided by firms that have either (i) demonstrated previous
experience maintaining schools in the District of Columbia or (ii)
demonstrated experience in maintaining equivalent facilities. The
Department shall have the right to reject one of the firms and their estimate
and request the Design-Builder to submit an alternate. The Design -Builder
shall include up to one (1) employee as reimbursable under this allowance.
The allowance shall be sufficient to include up to five percent (5%) markup
on all maintenance and employee costs.
j) GMP and any Council Package cost estimate summary shall be broken
down into three categories as applicable: New Construction, Renovation and
Sitework.
k) The GMP may include an agreed upon sum as the Design -Builder’s
Contingency and the Department’s Contingency, each of which shall be
identified as a separate line item in the GMP’s Schedule of Values.
l) 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 t he Design-Builder’s Contingency shall not
become due and payable until the RCO is approved in writing by the
Department’s Contracting Officer and becomes a Change Order. If the Design-
Builder’s Contingency reaches zero, any cost overruns or charges that c ould
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 be caused 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.
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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.
v. The Department’s 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 increase s in the Cost of the Work which the
Department determines, in its sole discretion, is its responsibility. The
Department may increase, decrease or eliminate the Department’s
Contingency at any time.
vi. When the Design -Builder proposes to use the Departm ent’s Contingency,
the Design-Builder shall prepare an RCO, identifying the amount sought to be
charged to the Department’s Contingency, the reasons why the amount should
be charged to that Contingency and demonstrating to the satisfaction of the
Department that the costs to be incurred are necessary for the Work and are the
responsibility of the Department. At all times, the Design-Builder shall avoid
and mitigate Department Contingency costs whenever possible. Before
payment or as part of an audit, the D esign-Builder and the Department shall
have 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.
vii. The Department reta ins the right to increase the GMP in lieu of charging
any cost to the Department’s Contingency. Any unused Contingency, whether
Department Contingency or the Design -Builder Contingency, shall be
reconciled to a zero balance via a Contract Modification upon Final
Completion.
m) Owner contingency
i. The Department retains the right to increase the GMP in lieu of charging
any cost to the Owner contingency . Any unused Contingency, whether
Department Contingency or the Design-Builder Contingency, shall be
reconciled to a zero balance via a Contract Modification upon Final
Completion.
ii. When the Design-Builder proposes to use the Owner contingency, the
Design-Builder shall prepare an RCO, identifying the amount sought to be
charged to the Owner contingency, the reasons why the amount should be
charged to that Contingency , and demonstrating to the satisfaction of the
Department that the costs to be incurred are necessary for the Work and are
the responsibility of the Department. At all times, the Design-Builder shall
avoid and mitigate Department Contingency costs whenever possible.
Before payment or as part of an audit, the Design -Builder and the
Department shall the authority to verify the actual costs incurred. No costs
may be charged to the Owner contingency until the RCO is approved in
writing by the Department and becomes a Change Order.
iii. The Owner contingency shall be an amount, determined by the
Department, which will be available to compensate the Design -Builder for
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the increased Cost of the Work incurred by the Design -Builder due to a
Contract Modification or to other increases in the Cost of the Work which
the Department determines, in its sole disc retion, is its responsibility. The
Department may increase, decrease or eliminate the Owner contingency at
any time.
Section 4.7 Department Review of GMP Proposal.
The Design-Builder shall meet with the Department to review the GMP Proposal and
the written statement of its basis. In the event that the Department discovers any
inconsistencies or inaccuracies in the information presented, the Department shall promptly
notify the Design-Builder, who shall make appropriate adjustments to the GMP Proposal, its
basis or both.
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 Pr oposal is acceptable to the Department, the Department shall submit
the resulting GMP Amendment for review and approval 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 event, the GMP shall not be
effective until so approved and executed by the Parties.
Section 4.9 GMP Amendment.
In the event, 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 comple te
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 the Design -Builder are unable to agree upon a
GMP, the Department shall have the right to terminate this Agreement, and if requested by the
Department, the Design-Builder shall assign any trade subcontracts and its agreement with the
Design-Builder’s Architect to the Department upon such terms and conditions and at the time
requested by the Department. In such event, the Design -Builder shall forfeit fifty percent
(50%) of the Preconstruction Fee.
Section 4.11 Certification.
As part of the GMP Proposal submitted in accordance with this Article, the Design -
Builder agrees to specifically acknowledge and declare that the Contract Documents are
sufficiently complete to have enabled the Design -Builder to determine the Cost of the W ork
therein in order to enter into the GMP Amendment and to enable the Design -Builder to agree
to construct the Work outlined therein in accordance with applicable laws, statutes, building
codes and regulations to the best of Design-Builder’s knowledge, and otherwise to fulfill all its
obligations hereunder. The Design -Builder shall further acknowledge that it has visited the
site, examined all conditions affecting the Work, is fully familiar with all of the conditions
thereon and affecting the same, and h as carefully examined all drawings and specifications
provided to it.
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Article 5 - CONSTRUCTION PHASE
Section 5.1 General.
The Construction Phase shall not commence until the Department issues a NTP for
Construction Phase Services. The Design -Builder shall, through Subcontractors or, with the
written consent of the Department, with the Design-Builder’s own forces, perform all of the
Work necessary to construct the Project so that it is complete, safe, and properly built in strict
accordance with the appr oved Construction Project documents and the other requirements of
this Agreement. Without limitation, the Design-Builder shall provide all of the labor, materials,
tools, equipment, temporary services, and facilities necessary to complete the Project in
accordance with the drawings, specifications, schedule, and budget that are issued for the
Project. The Design -Builder shall be responsible for paying for and obtaining all necessary
permits and to pay all necessary fees for utility connections. The Work shall be carried out in
a good and workmanlike, first -class manner, and in a timely fashion. All materials and
equipment to be incorporated into the Project shall be new and previously unused, unless
otherwise specified by the Department, and shall be free of manufacturing or other defects.
The Work shall be accomplished in accordance with the following:
a. Manage all aspects of the Project.
b. Manage weekly progress meetings. Progress meetings include site visits from design
consultants with field reports shall be included in Offeror’s price Proposal.
c. Provide completed Quality Control checklists for implementation of the Project.
d. Review and process shop drawing submissions, RFI’s, 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 tra nsmitted to
DGS in hard copy, PDF, CAD, and BIM formats.
Section 5.1.1 Unrenovated Portions of the Structure. In constructing the Project,
the Design -Builder shall ensure that unrenovated portions of existing structures, if any,
including, but not limited to, the mechanical, plumbing, electrical systems and other building
systems are not adversely affected. All unrenovated portions of the structures should function,
at a minimum, at the level of functionality that existed immediately prior to the construction of
the Project. If any unrenovated portion of the Project functions at a lower level of functionality
as a result of the Design -Builder’s Work, the Design -Builder shall be back -charged the costs
incurred by the Department in addressing the decreased functionality.
Section 5.2 Design Completion.
Section 5.2.1 Mid-Point Construction Document Review. Based on the approved
Design Development Documents and any approved Value Engineering, the Design -Builder
shall prepare a set of Construction Documents. It is contemplated that the Construction
Documents will be issued in several different sets (i.e. architectural, electrical, mechanical,
structural, etc.). As each such set reaches a point where it is approximately Fifty percent (50%)
complete, the Design-Builder shall prepare and submit a progress printing to the Department
for its review and comment.
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Section 5.2.2 Construction Project Document Review & Coordination. The Design-
Builder shall complete each of the Construction Documents packages in a manner t hat
addresses the concerns raised by the Department during the review contemplated in Section
5.2.1 for such package. The Design -Builder shall issue one or more set of permit documents
to the Department for its review and approval (“Permit Set”). With regard to each such set, the
Design-Builder shall highlight (or bubble) any aspect of the design that represents a material
deviation from the approved Design Development Documents and shall address in a narrative
format the impact, if any, such departure shall have on the Project’s aesthetics, functionality or
performance. The Department shall have the ri ght to disapprove the Construction Documents
for any reason. If the Department disapproves the Construction Documents, the Design-Builder
will not be entitled to any additional compensation. If, however, the Department disapproves a
Construction Document t hat is a logical extension of the approved Design Development
Documents, the Design-Builder will be entitled to an adjustment to the GMP and/or the Project
Schedule unless such a package departs from the Scope of Work fairly reflected in the GMP
Drawings and Specifications and in such event the Design-Builder shall be required to prepare
a revised design that complies with the GMP drawings and specifications (“Drawings and
Specifications”) and without any entitlement to an increase in the GMP or an adjustment of the
Project Schedule.
Section 5.2.3. Code Review. The Design-Builder shall submit the Permit Set to the
DOB in order to obtain the necessary building permits for the Project. The Design -Builder
shall monitor the permit process and shall incorporate any changes or adjustments required by
the Code Official. The Design-Builder shall also issue any such changes to the Department for
its review and approval. In this submittal, the Design-Builder’s Architect shall highlight (or
bubble) any aspect of the design that represents a material deviation from the permit set Project
documents and shall address in a narrative format the impact, if any, such departure shall have
on the Project’s aesthetics, functionality or performance. Subsequent to obtaining the necessary
building permits, the Design-Builder shall prepare one or more sets of “issued for construction
Project documents” (the “IFC Set(s)”).
Section 5.2.4. Design Changes. If it should become necessary to amend any of the
approved IFC Set(s), the Design-Builder shall prepare an amendment to the drawings and shall
submit such amendment to the Department for its review and approval. In this submittal, the
Design-Builder shall highlight (or bubble) any aspect of the design that represents a material
deviation from the permit set documents and shall address in a narrative format the impact, if
any, such departure shall have on the Project’s aesthetics, functionality or performance. In the
event the Department does not approve such document within ten ( 10) business days after
issuance, unless otherwise denied, such document shall be deemed approved, provided
however that the Department has not advised that such document is still under review.
Section 5.2.5 Third Party Contractors . The Department will hire third party
contractors for plan review and for testing and material inspections. The Design -Builder shall
coordinate and work with the Program Manager and third -party plan reviewer during the
building permit process.
Section 5.2.6 Final Maintenance and Operations Plan . The Design -Builder shall
submit, for the Department’s review, a final Maintenance and Operations Plan. The
Maintenance and Operations Plan shall be based on the final IFC Set(s). The approved
Maintenance and Operations Plan shall form the basis of the Design-Builder’s maintenance of
the building following Substantial Completion.
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Section 5.3 Subcontracting and Administration
Section 5.3.1 It is contemplated that all or substantially all of the construction of the
Project will be carried out by trade Subcontractors and that those trade subcontracts will be
awarded through the competitive bid process contemplated in Section 0 The Design-Builder
shall enter into a written agreement with each subcontractor. The trade Subcontractors will
be under written contract with the Design-Builder. All subcontracts and agreements for the
supply of equipment or materials awarded for the Project shall be fixed-price contracts unless
otherwise expressly authorized by the Department, in writing. It is understood and a greed,
however, that certain trade packages (such as the mechanical and electrical packages) may
be awarded on a design -assist or design -build basis and that such trade packages may be
awarded on such other basis subject to the Department’s consent as to the bidding procedures
and economic structure with regard to those packages. The Design-Builder and its affiliates
may not carry out trade work with its own forces without the Department ’s written
permission, which permission may be withheld or conditioned by the Department in its sole
and absolute judgment.
Section 5.3.2 In addition to the open book reporting requirements set forth in Section
5.10, the Design -Builder shall provide to the Department a copy of all quotes or proposals
submitted by potential Subcontractors.
Section 5.3.3 The Design -Builder shall develop a purchasing strategy to address the
expedited schedule and conditions of this Project and shall include appropriate provisions in
the subcontracts to minimize the cost impact associated with such conditions. Such strategies
may include, but are not limited to : (i) obtaining from Subcontractors unit price quotes for
typical coordination items; (ii) setting aside allowances for coordination work; and (iii) such
other techniques as may be employed by the Design-Builder.
Section 5.3.4 The Design-Builder shall carefully document its procedures for making
available bid packages to potential bidders, the contents of each bid package, discussions with
bidders at any pre-bid meetings, bidders’ compliance with bid requirements, all bids received,
the Design -Builder’s evaluations of all bids, and the basis for the Design -Builder’s
recommendation as to which bidders should be chosen. The Department shall be afforded
access to all such records at all reasonable times so that, a mong 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 s ole discretion, reject any or all bids and
proposals received for any bid package, and may require the Design -Builder to obtain new or
revised bids or proposals.
Section 5.3.6 The Department may, in its sole discretion, direct the Design -Builder to
accept a bid f rom 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 subcontract or supply agreement awarded and the bid price of the Subcontractor or
supplier recommended by the Design-Builder, but without any adjustment to the Design-Build
Fee.
Section 5.3.7 The Department must approve all Subcontractors and suppliers. Th e
Department may elect to review the form of any subcontract or agreement with a material
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supplier to ensure that such contract incorporates the contractual provisions required by this
Agreement.
Section 5.3.8 The Design-Builder must contract for 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 provision of
materials or equipment only, and not labor, via written supply agreements. All subcontracts
and supply agreements shall include the following provisions:
Section 5.3.8.1 that, to the extent of the work or supply within the agreement’s
scope, the Subcontractor or supplier is bound to the Design -Builder for the
performance of all obligations which the Design -Builder owes the Department under
the Agreement;
Section 5.3.8.2 that the Subcontractor or supplier is not in privity with the
Department and shall not seek compensation directly from the Department on any
third-party beneficiary, quantum meruit, or unjust enrichment claim, or otherwise,
except as may be permitted by any applicable mechanic’s lien law;
Section 5.3.8.3 that the Depart ment is a third -party beneficiary of the
subcontract or supply agreement, entitled to enforce any rights thereunder for its
benefit;
Section 5.3.8.4 that the Subcontractor or supplier consents to assignment of its
agreement to the Department, at the Depart ment’s sole option, if the Design -Builder
is terminated for default;
Section 5.3.8.5 that the Subcontractor or supplier shall comply immediately
with a written order from the Department to the Design -Builder to suspend or stop
work;
Section 5.3.8.6 that the Subcontractor or supplier shall maintain records of all
Work it is requested or authorized to do on a time and material or cost -plus basis, or
with respect to claims that it has asserted on a time and materials or cost -plus basis,
during the Project and for a period of time specified in the General Conditions and
requiring the Subcontractor or supplier to make those records available for review or
audit by the Department during that time;
Section 5.3.8.7 that the Subcontractor shall obtain and maintain, throughout the
Project, workers’ compensation insurance in accordance with the laws of the District
of Columbia (This provision is not applicable to supply agreements);
Section 5.3.8.8 that, if the Department terminates the Agreement for
convenience, the Design -Builder may similarly terminate the subcontract or supply
agreement for convenience, and that the Subcontractor or supplier shall, in such a case,
be entitled only to the costs set forth in Article 6 of the Standard Contract Pr ovisions
(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 subcontract or supply
agreement price less amounts already paid, if the Design -Builder files a voluntary
petition in bankruptcy or has an involuntary petition in bankruptcy filed against it;
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Section 5.3.8.10 that the Subcontractor or supplier shall not be entitled to
payment for defective or non -conforming work, ma terials or equipment, and shall be
obligated promptly to repair or replace non -conforming work, materials or equipment
at its own cost;
Section 5.3.8.11 a provision requiring that Subcontractors and suppliers
promptly pay Subcontractors and suppliers at lower tiers, imposi ng 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 timely fashion;
Section 5.3.8.12 a provision requiring that all Subcontractors at all tiers comply
with the provisions of Article 13 (Economic Inclusion Goals); provided, however, that
the Design -Builder may, in its reasonable discretion impose a different LSDBE
subcontracting goal on some or all of its Subcontractors; provided, further, however,
that nothing in this provision shall be deemed to excuse the Design-Builder from using
its best efforts to achieve the LSDBE subcontracting goal on an aggregate basis for the
Project;
Section 5.3.8.13 a provision which al lows the Design -Builder to withhold
payment from the Subcontractor if the Subcontractor does not meet the requirements of
the subcontract;
Section 5. 3.8.14 lien and claim release and waiver provisions substantially
identical to those in this Agreement.
Section 5.3.9 Within seven (7) calendar days of receiving any payment from the
Department that includes amounts attributable to Work performed or materials or equipment
supplied by a Subcontractor or supplier, the Design-Builder shall either pay the
Subcontractor or supplier for its proportionate share of the amount paid to the Design-
Builder for the Subcontractor’s or supplier’s Work or materials or equipment, or notify the
Department and the Subcontractor or supplier, in writing, of the Design-Builder’s intention
to withhold all or part of the payment and state the reason for the withholding. All monies
paid to the Design-Builder under the Agreement shall be used first to pay amounts due to
Subcontractors
or suppliers supplying labor or materials for the Project and only money
remaining after such payments are made may be used for other items such as the Design-
Build Fee. Monies paid by joint check shall be deemed to have been paid fully to the
Subcontractor or supplier named as a joint payee, unless the Department agrees otherwise
in writing. Any interest paid to Subcontractors or suppliers because the Design-Builder has
failed
to pay them in timely fashion shall not be reimbursable as part of the Cost of the
Work.
Section 5.3.10 The Design-Builder shall not enter into any profit sharing, rebate,
or similar arrangement with any Subcontractor or supplier at any tier with respect to the
Project or the Work to be carried out for the Project.
Section 5.3.11 The Design-Builder shall not substitute or replace any subcontractor
or supplier approved by the Department without the Department's Contracting Officer and
DSLBD prior written consent.
Section 5.3.12 The Department has the right to contact Subcontractors or suppliers
at all tiers, or material or equipment suppliers directly to confirm amounts due and owing to
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them or amounts paid to them for Work on the Project, and to ascertain from the
Subcontractors or suppliers at all tiers their projections of the cost to complete their work or
to supply their material or equipment, or the existence of any claims or disputes. In doing
so the Department shall not issue any directions to Subcontractors or Suppliers at any tier.
Section
5.3.13 If it comes to the Department ’s attention that a Subcontractor or
supplier has not been paid in timely fashion (other than for disputed amounts), and if the
Design-Builder fails to cure the problem within five (5) calendar days after the Department
gives it written
notice of the failure to pay, the Department may make payments to the
Subcontractor or supplier and Design-Builder by joint check. If the payment was already
made to the contractor, the joint check be for future payments (if any).
Section
5.3.14 The Design-Builder shall be required to provide an evaluation of
each of its subcontractors’ performance by completing and submitting to the Department the
Subcontractor Performance Evaluation Form set forth as Exhibit O, as follows:
(a) Within ninety (90) days of initiating the Construction Phase; and
(b) Within thirty (30) days after Final Completion of the Project.
Section 5 .3.15 The Design-Builder shall be required to provide to the
Contracting Officer a certificate of insurance for each subcontractor before such
subcontractor begins work.
Section 5.4 Weekly Progress Meetings & Schedule Updates.
The Design-Builder shall schedule and conduct, at a minimum, weekly progress
meetings following the Design-Builder’s generated agenda at which the Department, the
Design-Builder’s Architect , the Program Manager, the Design -Builder and appropriate
Subcontractors can discuss the status of the Work. The Design -Builder shall prepare and
promptly distribute meeting minutes. In addition, the Design -Builder shall submit bi -weekly
schedule updates which shall reflect actual conditions of Project progress as of the date of the
update. The update shall reflect the actual progress of construction, identify any d eveloping
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 occur red since the last update, including those related to major changes in
the scope of work, activities modified since the last update, revised projections of durations,
progress and completion, revisions to the schedule logic or assumptions, and other releva nt
changes. Any significant variance from the previous schedule or update shall also be identified
in a narrative, together with the reasons for the variance and its impact on Project completion.
All Schedule updates shall be in a native format reasonably acceptable to the Department (e.g.,
Primavera). The Department may make reasonable requests during the Project for changes to
the format or for further explanation of information provided. Submission of updates showing
that Substantial Completion or Final Completion of the Project will be achieved later than the
applicable scheduled completion date shall not constitute requests for extension of time and
shall not operate to change the scheduled completion date(s). The Department’s receipt of, and
lack of objection to, any schedule update showing Substantial Completion or Final Completion
later than the dates agreed upon in the Project Schedule shall not be regarded as the
Department’s agreement that the Design-Builder may have an extension of time, or as a waiver
of any of the Department’s rights, but merely as the Design-Builder’s representation that, as a
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matter of fact, Substantial Completion or Final Completion of the Project may not be completed
by the agreed upon date in the Project Schedule. Chan ges to the scheduled completion dates
may be made only in the circumstances and only by the methods set forth in this Agreement.
Section 5.5 Written Reports.
The Design-Builder shall provide written reports to the Department on the progress of
the entire Work at least monthly from Preconstruction Notice to Proceed until Final Completion
of the Project. The monthly report shall include: (i) an updated schedule analysis, including
any plans to correct defective or deficient work or recover delays; (ii) an updated cost report;
(iii) a monthly review of cash flow; (iv) a quality control report; and (v) progress photos. Such
written report Such written report shall including the following elements:
Section 5.5.1 Construction Progress Update. Each monthly update shall contain a
narrative description of the Project progress and a critical path method schedule in Primavera
format, including any plans to correct defective or deficient work or for time lost due to delays.
Section 5.5.2 Cost Update. The monthly update shall reflect, by Guaranteed
Maximum Price line item, the original line -item amount, approved, pending, and projected
Change Order amounts, the cost incurred to date, the projected cost to complete the Work of
the line item, and any variance between the actually approved budgeted balance of the line item
and the projected cost to complete. A clear distinction must be made between approved Change
Orders and those merely requested or anticipated. The report shall explain all variances
including “buy-outs” or final actual costs including those below their respective Guaranteed
Maximum Price line item. In addition, the report must disclose any instances in which the
Design-Builder has transferred amounts from one line item to another, or from the Contingency
to any other line item. Neither submission of, nor the Department’s failure to reject an update
reflecting that the projected cost to complete the Project exceeding the Guaranteed Maximum
Price will operate to increase the Guaranteed Maximum Price or waive the Department’s right
to enforce the Guaranteed Maximum Price. If the report reflects budget overruns, it must also
include a recovery plan.
Section 5.5.3 Economic Inclusion Report. The monthly report shall include a
detailed summary of the D esign-Builder’s efforts and results with respect to the economic
inclusion goals set forth in this Agreement. Such report shall be in a format acceptable to the
Department and shall include, at a minimum: (i) the Design-Builder’s overall performance with
respect to the goals; (ii) a listing of subcontracts and agreements with material suppliers during
the month and the percentage of those subcontracts and agreements with material suppliers
awarded to LSDBEs; (iii) a listing of subcontracts during the month and the estimated
percentage of the labor hours to be worked by District of Columbia residents pursuant to those
subcontracts; and (iv) a description of the major subcontracting and supply opportunities that
will be solicited during the next three (3) mon ths and the actions being taken to meet the
subcontracting goals.
Section 5.5.4 Cash Flow Update. If there have been any changes to the anticipated
cash flow for the Project, such changes shall be disclosed and explained in the monthly report.
If there are no such changes, the report shall so state.
Section 5.5.5 Quality Assurance Report. The monthly report shall include a detailed
summary of the steps that are being employed to ensure quality construction and workmanship.
Each report shall specifically address issues that were rai sed by the Department and/or its
Program Manager during the prior month and outline the steps that are being taken to address
such issues.
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Section 5.5.6 Progress Photos. The monthly report shall include updated progress
photos that shall detail changes in the Work duri ng the month. The Design-Builder shall also
maintain a daily log containing a record of weather, Subcontractors working on the site, number
of workers, major equipment on the site, Work accomplished, problems encountered and other
similar relevant data as the Department may reasonably require. The log shall be available to
the Department, the Design-Builder’s Architect and the Program Manager, and on a monthly
basis a copy of the log shall be submitted to the Department.
Section 5.6 Cost Control System.
The Design-Builder shall use a system of cost control for the Work in a format consistent
with the GMP Drawings & Specifications and approved by the Department, which shall
include, without limitation, regular monitoring of actual costs for activities in progress and
estimates for uncompleted tasks and proposed changes. The Design-Builder shall identify
variances between actual and estimated costs and report the variances to the Department, the
Design-Builder’s Architect and the Program Manager at regular intervals.
Section 5.7 Key Personnel.
Section 5.7.1 To carry out its duties, the Design -Builder shall provide at least the key
personnel identified in Exhibit F to this Agreement (“Key Personnel”), who shall carry
out the functions identified in Exhibit F. Among other things, the Key Personnel shall
include:
A - Key Personnel of the Prime Contractor:
i. Project Manager
ii. Superintendent
iii. Project Executive
B - Key Personnel of the Design-Builder’s Architect/Engineer
i. Project Manager
ii. Project Architect
iii. Principal in Charge
iv. Lead Mechanical Engineer
v. Lead Envelope Consultant
It is contemplated that these Key Personnel will work from the design stage, purchasing,
and throughout the bulk of the fieldwork. The Design -Builder’s obligation to provide
adequate staffing is not limited to providing the Key Personnel but is determined by the
needs of the Project. The Design -Builder shall not replace any of the Key Personnel
without the Department’s prior written approval. If any of the Key Personnel become
unavailable to perform services in connection with the Agreement due to death, disability
or separation from the employment of the Design-Builder or any affiliate of the Design-
Builder, then the Design -Builder shall promptly notify the Department’s Contracting
Officer and propose a replacem ent 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 memb ers of the Design -Builder’s Key Personnel shall be
subject to a replacement fee for their removal or reassignment by the Design-Builder.
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Those members of the Design-Builder’s Key Personnel subject to a replacement fee
shall be identified in Exhibit F as subject to the replacement fee provisions. In the
event there is no delineation in Exhibit F of those members of the Design-Builder’s
Key Personnel subject to the replacement fee provisions of this Agreement, then all
of the Key Personnel shall be subject to the replacement fee provisions of this
Agreement.
Section 5.7.2.1 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 replacement fee, without the prior
written consent of the Department, then the Design -Builder shall pay to the
Department’s Contracting Officer the amount set forth in the Project
Information Section of this Agreement as replacement fee and not a penalty, to
reimburse the Department for its administrative costs arising from the Design -
Builder’s failure to provide the Key Personnel. The foregoing replacement fee
amount shall not bar recovery of any other damages, costs or expenses othe r
than the Department’s internal administrative costs.
Section 5.7.2.2 In addition, the Department shall have the right, to be
exercised in its sole discretion, to remove, replace or to reduce the scope of
services of the Design-Builder in the event that a member of the Key Personnel
has been removed or replaced by the Design-Builder without the prior written
consent of the Department’s Contracting Officer. In the event the Department
exercises the right to remove, replace or to reduce the scope of services of the
Design-Builder, the Department shall have the right to enforce the terms of this
Agreement and to keep-in-place those members of the Design-Builder’s team
not removed or replaced and the remaining members shall complete the
services required under this Agreement in conjunction with the new members
of the Design -Builder’s team approved by the Department ’s Contracting
Officer.
Section 5.8 Qualified Personnel/Cooperation.
The Design -Builder shall employ on the Project only those employees and
Subcontractors who will work together in harmony and who will cooperate with one another
on the Project. The Design -Builder shall enforce strict discipline, good order and harmony
among its employees and its Subcontractors and shall remove from the site any person who is
unfit for the work or fails to conduct herself or himself in a proper and cooperative manner. If
the Department requests removal of any person as unfit or as having behaved inappropriately,
the Design-Builder shall promptly comply.
Section 5.9 Warranty.
The Design-Builder warrants to the Department that materials and equipment furnished
under the Project Documents will be of good quality and new unless otherwise required or
permitted by the Contract documents, that for the one (1) year period following the Substantial
Completion Date the Work will be free from defects not inherent in the quality required or
permitted, and that the Work will conform to the requirements of the Contract documents. The
Design-Builder’s warranty excludes remedies for damage or defect caused by a buse,
modifications not executed by the Design -Builder, improper or insufficient maintenance,
improper operation, or normal wear and tear from normal usage. The Design-Builder shall use
commercially reasonable efforts to schedule a joint inspection of the Project during the eleventh
month after Substantial Completion is achieved. During such inspection, the Design -Builder
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and a representative of the Department shall walk the Project to identify any necessary warranty
work.
Section 5.10 Open Book Reporting.
The Design-Builder shall maintain an open book reporting system with the Department,
allowing the Department or its consultants access to the Design -Builder’s Subcontractors and
material suppliers, invoices, purchase orders, Change Order estimates, records for Self -
Performed Work, and other relevant Project documentation and sources of information
concerning the Work or costs. The Department shall not use its access to the Subcontractors
to give instructions or directions to them. All instructions or directions shall be given only to
the Design-Builder.
Section 5.11 Claims for Additional Time.
Section 5.11.1 Time is of the essence of this Agreement. The Project must be
Substantially Complete no later than the Substantial Completion Date(s) (for both Part
1 and Part 2) 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 specified Substantial Completion Date. Unless the
failure to achieve Substantial Completion by the specified Substantial Completion
Date is a result of an Excusable Delay, as defined in Section 5.11.3, the delay shall be
deemed Non-Excusable and the Design-Builder shall not be entitled to an extension of
time. Without limiting the generality of the foregoing, delays for the following reasons
shall be regarded as Non-Excusable and shall not entitle the Design -Builder to an
extension of time:
Section 5.11.2.1 Delays due to job site labor disputes, work stoppages, or
suspensions of work;
Section 5.11.2.2 Delays due to adverse weather, unless the Design-Builder
establishes that the adverse weather was of a nature and duration in excess
of averages established 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, weather shall only be deemed “adverse” if the
weather in question was more severe than that encountered at the Project
site over the last ten (10) years for the month in question. Such
determinations shall be made based on the number of rain/snow days or the
cumulative precipitation total for the month in question. Notwithstanding
the foregoing, named storms shall conclusively be deemed “adverse”;
Section 5.11 .2.3 Delays due to the failure of the Design -Builder or
Subcontractors or material suppliers at any tier to perform in a timely or
proper fashion, without regard to concepts of negligence or fault; or
Section 5.11.2.4 Delays due to Site Conditions whether known or unknown
as of the effective date of the Agreement, foreseeable or unforeseeable at
that time, naturally occurring or man-made; provided, however, that delays
due to differing Site Conditions as permitted by Article 4, Section A of the
Standard Contract Provisions (Construction Contracts) or Hazardous
Materials Remediation shall be deemed an Excusable Delay.
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Section 5.11.3 The Design -Builder shall be entitled to an adjustment in the
Substantial Completion Date due to an Excusable Delay. The term “Excusable Delay”
shall mean:
Section 5.11.3 .1 Delays due to adverse weather other than those that are
classified as a Non -Excusable delay in accordance with Section 5.11.2.2 of this
Agreement;
Section 5.11.3.2 Delays due to acts of God, war, unavoidable casualties, civil
unrest, and other similar causes of delay that are beyond the control of the Design -
Builder; provided, however, that in no event shall a Non-Excusable Delay or the action
or inaction of the Design -Builder, or any of its employees, agents, Subcontractors or
material suppliers be deemed an Excusable Delay; or
Section 5.11.3.3 Delays caused by differing Site Conditions as permitted by
Article 4, 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;
Section 5.11.3.5 Delays caused by the Client Agency or separate contractors of
the Client Agency to the extent such delays are not concurrent with delays caused by
the Design -Builder or any of its employees, agents, Subcontractors or material
suppliers; or
In addition to the forgoing, a delay shall be deemed to be an Excusable Delay only to
the extent that such delay (i) warrants an extension in the Substantial or Final Completion Date;
(ii) has not been caused by the Design-Builder or any of its employees, agents, Subcontractors
or material suppliers; (iii) is on Project’s critical path; and (iv ) is in addition to any time
contingency periods set forth in the critical path.
Section 5.11.4 If the Design-Builder wishes to make a claim for an adjustment in time
allotted per the Project Schedule, written notice as provided herein shall be given. The Design-
Builder’s claim shall include an estimate of the cost and of the probable effect of delay on the
progress of the Work. In the case of continuing delay, only one claim is necessary.
Section 5.11.5 In no event shall the Design -Builder be entitled to an increase in the
GMP or th e Design-Build Fee as a result of either an Excusable or Non -Excusable Delay;
provided, however, that to the extent that a delay is: (i) an Excusable Delay; (ii) of unreasonable
duration; (iii) caused solely by the Department; and (iv) not concurrent with any other delay,
then the Design -Builder shall be entitled to receive its actual costs, including all direct and
indirect costs, bonds and insurances resulting from such extended duration. It is understood
that the Design-Builder shall not be entitled to a ny 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
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the Project, and shall comply with the requirements set forth in Article 16, Section F of the
Standard Contract Provisions (Construction Contracts).
Section 5.12.2 Safety Plan. Prior to the start of construction activities, the Design -
Builder shall prepare a safety plan for the construction phase conforming to OSHA 29 CFR
1926 (such plan, the “Safety Plan”). Pursuant to OSHA 29 CFR 1926, the Design-Builder shall
provide all employees with the necessary Personal Protective Equipment ( “PPE”) to comply
with all COVID-19 regulations, and shall additionally require anyone on site to comply with
any PPE requirements. This Safety Plan developed by the Design -Builder shall describe the
proposed separation and the specific nature of the safety measures to be taken including fences
and barriers that will be used as well as the site security details. The Safety Plan will be
submitted to the Department and Client Agency for their review and approval prior to the
commencement of construction. Once the Safety Plan has been approved, the Design-Builder
shall comply with it at all times during construction. The Design -Builder shall be required to
revise the Safety Plan as may be requested by t he Department or Client Agency at any time,
including, but not limited to, as necessary to address any new national or local COVID -19
regulations, recommendations, or restrictions. The cost of revising and complying with the
plan shall not entitle the Des ign-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 Client Agency for
educational purposes. The Design -Builder shall describe in t he Safety Plan the proposed
separation and the specific nature of the fences and barriers that will be used.
Section 5.12.4 Site Security. The Design-Builder shall be responsible for site security
and shall be required to provide such watchmen as are necessary to prot ect the site from
unwanted intrusion. Site Security shall be included in the Design-Builder’s General Conditions
Cost.
Section 5.12. 5 Exculpation. The right of the Department and Client Agency to
comment on the Safety Plan and the nature and location of the required fen ces and barriers
shall in no way absolve the Design-Builder from the obligation to maintain a safe site.
Section 5.12.6 Site Cleanliness. During the Agreement performance and/or as
directed by the Department’s Program Manager, as the installation is completed, the Design-
Builder shall ensure that the site is clear of all extraneous materials, rubbish, or debris.
Section 5.13 Workhours, Site Office, and Coordination with Client Agency and
Community
Section 5.13.1 Workhours. The Design -Builder shall comply with the Noise
Ordinance and neither it nor its Subcontractors shall undertake work on the Project site other
than at the times and sound level permitted by the Noise Ordinance.
Section 5.13.2 Site Office. Throughout the Project, the Design-Builder shall provide
and maintain a fully-equipped construction office for the Project site.
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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 adver se impact on neighborhood
parking, the Design-Builder shall develop a parking plan for those individuals working on the
site that is reasonably acceptable to the Department.
Section 5.13.4 Wheel Washing Stations. The Design-Builder shall provide wheel
washing stations on site so as to prevent the accumulation of dirt and other refuse on the streets
surrounding the Project site.
Section 5.13. 5 Outreach Plan. The Design -Builder shall keep the Department
informed of the construction activities and their potential impact on the community and shall
develop a community outreach plan (the “Outreach Plan”). The Design -Builder shall submit
the Outreach Plan to the Department prior to its implementation which shall be subject to the
Department’s review and approval.
Section 5.13.6 Supervision. Throughout the Work, the construction office shall be
managed by personnel competent to oversee the Work at all times while construction is
underway. Such personnel shall maintain full -time, on -site construction supervision and
provide daily inspections, quality control, monitoring, coordination of various trades, record
drawings, and daily work log.
Section 5.14 Close-Out & FF&E.
Section 5.14.1 A detailed list of FF&E requirements will be developed during the
design & Preconstruction Phase and attached hereto as Exhibit N. The FF&E requirements
will be incorporated and agreed to in the GMP Amendment.
Section 5.14.2 Punchlist. Promptly before Substantial Completion, the Design -
Builder shall cause the Design-Builder’s Architect to develop a punch list. Once the punch list
is prepared, the De sign-Builder shall inspect the work along with representatives from the
Department. The punch list shall be revised to reflect additional work items that are discovered
during such inspection. The Design -Builder shall correct all punch list items no late r than
ninety (30) days after Substantial Completion is achieved.
Section 5.14.3 Warranties & Manuals. Prior to Substantial Completion and no later
than fifteen (15) days following Substantial Completion, the Design-Builder shall prepare and
submit the following Project documentation: (i) a complete set of product manuals (“O&M”),
training videos, warranties, etc.; (ii) attic stock; (iii) an equipment schedule; (iv) a proposed
schedule of maintenance for the new building; (v) environmental, health and safety Project
documents for the renovated building; and (vi) all applicable inspection certificates/permits
(boiler, elevator, emergency evacuation plans, health inspection, etc.) for the new building. No
later than thirty (30) days following Substantial Completion, the Design-Builder shall prepare
and submit: (i) a complete set of its Project files; and ( ii) a set of record drawings , including
BIM models.
Section 5.14.4 Support for Initial Heating & Cooling Season. The Design-Builder
and its mechanical subcontractor shall provide support to the Client Agency and the
Department during system start -up and in initial operation for the first heating and cooling
season after Substantial Completion is achieved.
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Section 5.14.5 Training. The Design-Builder shall provide training to Client Agency
staff on all of the building systems. The Design -Builder shall be required to schedule such
training sessions and shall use commercially reasonable efforts to ensure all such training
occurs prior to Final Completion. All training shall be electronically recorded and turned over
to the Department for future use.
Section 5.14.6 The Design-Builder shall assist Client Agency in relocating FF&E and
other items as necessary within the renovated building, as well as for cleaning and other move-
in services as directed by the Department. The GMP shall include an allowance and scope of
work for these activities. This allowance is in addition to cleaning services that would otherwise
be required by the Design -Builder, including, but not limited to, the obligation to deliver a
broom clean building at the end of construction.
Section 15.15 Salvaged and Stored Items. The Design-Builder shall be responsible
for salvaging and storing all items as identified by the Department, and to the benefit of the
Department, in accordance with all applicable District laws and regulations, after notifying the
Department and receiving the Department’s permission to proceed.
Section 5.16 Protection of Existing Elements.
The Design -Builder shall protect all existing features, public utilities, and other existing
structures during construction. The Design -Builder shall protect existing, site improvements,
trees and shrubs from damage during construction. Protection extends to the root systems of
existing vegetation. The Design -Builder shall not store materials or equipmen t, or drive
machinery, within drip line of existing trees and shrubs.
Section 5.17 Sediment and Erosion Control.
The Design-Builder shall be responsible for installing sediment and erosion control measures
in accordance with DOEE guidelines , inclusive of, but not li mited 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 manage, control, and document work to ensure compliance with
Contract documents. The Design-Builder’s responsibility includes ensuring adequate quality
control services are provided by the Design -Builder’s employees and its Subcontractors at all
levels from concept to completion including site assessment -investigations/discovery,
schematic design development, pre -construction, construction and closeout phases. All
contract related work activities and their implementation procedures described within this
quality control plan shall also address safety, me asures to ensure regulatory permit & code
compliance, submittal management, change document processing/incorporation, reporting, and
all other functions necessary to achieve highest levels of quality during design and construction
efforts.
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 . 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
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tailored to the specific products/type of construction activities contemplated in the Design
Development Documents, and in general, shall include a table of contents, quality control team
organization, and hierarchical arrangement detailing ongoing, regular interaction/coordination
within the Design -Builder’s teams, duties/responsibilities of quality control personnel,
submittal procedures, schedule of specified inspection & testing requirements, deficiency
correction procedures, issues & conflicts resolu tion, RFI documentation process, change
management, as-built record keeping of contract documents and a listing of customized quality
control procedures that will be required to ensure key elements of the Work are executed in
conformance with design documents. Examples of a few key elements that necessitate focused
attention and involvement of competent agencies include MEP -Energy systems
startup/commissioning, security systems integration and building envelope multi -trade
coordination. Mockup construction requirements must be incorporated into the plan, in order
to establish a minimum standard of acceptance by the Department, for the Project’s most visible
and critical structural-architectural building elements like CIP concrete and exterior facades.
The Q uality Control plan must clearly describe requirements addressing involvement of
qualified personnel for critical building elements and any delegated design features that require
engineered solutions, backed by supporting analysis data.
The Quality Contro l Plan must clearly describe quality control measures such as using
Department’s Quality Control Master Program 3 phase checklists recommended to be
undertaken by the Design-Builder's team. Prior to 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 d ocuments – drawings and
specifications – are as complete as possible, prior to the contractor’s groundbreaking. DGS
QC Program Design Phase Checklists include metrics to perform this evaluation of design
documents. Similarly, the Quality Control Plan must describe in detail the quality control
mechanisms proposed to be implemented by the Design-Builder for ensuring adherence with
design documents by way of minimal rework and maintaining the highest standards of
construction. The Quality Control Plan must detail a description of any 3rd parties suggested to
be hired by the Department such as building envelope consultants and commissioning agents.
Section 5.18.3 Implementation. During the Construction Phase, the Design -Builder
shall perform regular quality control inspections and create reports using the 3 Phase inspection
checklists included with DGS Quality Control Master Program Manuals based on such
inspections pursuant to the Quality Control Plan. These quality control reports with the 3 Phase
Checklists shall be provided to the Department electronically on a monthly basis. The Design-
Builder shall incorporate a quality control section in the progress meetings to discuss
outstanding deficiencies, testing/inspections, and upcoming work. The monthly report shall
include a detailed summary of the steps that are being employed to provide quality construction
and workmanship. The monthly report should specifically address issues raised during the
month and outline the steps that are being used to address such issues. The fo llowing are the
components that must at a minimum be included within the monthly Quality Control report
submitted to DGS. All components must be updated regularly, and current versions included
with monthly submissions to the Department.
1. A written narrativ e of Quality Control activities for the month supported by
embedded, cross -referenced photos. Should include 3 Phase checklists
compiled on a regular basis as part of the Design -Builder’s ongoing quality
control efforts.
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2. CPM updates and analysis reflecting status of critical submittals affecting work
progress, elaborated further within the descriptive work narrative
accompanying CPM baseline schedule and subsequent, regular updates’
submissions to the Department.
3. Deficiency tracking log.
4. Test & Inspections log recording all related activities for the month and
cumulative for the project. This must correspond and cross -reference the
Project’s testing & inspection schedule described above with Section 2.8.2.
5. Submittal Schedule detailing the status of all Project submittals
Section 5.19 Acceleration.
Subject to the terms of this Section, the Department shall have the right to direct the
Design-Builder to accelerate the Work if, in the reasonable judgment of 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 dir ect such acceleration as the Department, in its reasonable judgment, deems
necessary. Provided Department complies with the notice provisions of this Section, the cost
of any acceleration directed under this Section shall not justify an adjustment to the GMP or
the Substantial Completion Date.
Given the nature of the Project and the fact that there is a fixed date upon which the
Client Agency plans to occupy the building, the Design-Builder hereby: (i) acknowledges that
this provision is a material inducement upon which the Department has relied in entering into
this Agreement; and (ii) represents and warrants that it 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 Department shall have the right 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 t o comply
with generally applicable industry standards, requirements set forth in the specifications that
are reasonably related to the quality of craftsmanship quality, or any provisions set forth in this
Agreement (each a “Quality Control Event”). In the event that the Department or its Program
Manager determine 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 th e right to direct such corrective
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action measures as the Department, in its reasonable judgment, deems necessary. Such
directive may include adjustments to the procedural provisions set forth in the Quality Control
Plan and/or may impose additional requir ements on the manner in which Work is being
performed. Provided the Department complies with the notice provisions of this Section, the
cost of any such corrective action directed under this Section shall not justify an adjustment to
the GMP or the Substantial Completion Date.
Section 5.21
a. Use of Department’s Electronic Project Management Information System
(ProjectTeam). The Design-Builder shall utilize the Department’s ProjectTeam
system to create, manage and/or submit any and all documentation required to
be provided by the vendor during the course of the Project, including, but not
limited to: (i) requests for information; (ii) submittals; (iii) potential change
orders; (iv) meeting minutes; (v) pencil copy invoices; (vi) drawings and
specifications;(vii) punchlist; and (viii) other documents as may be designated
by the Department.
Electronic storage and transmission of information via P rojectTeam system
shall be compliant with the provisions of the document security section of these
general requirements.
b. Invoice Submittal. The Design - Builder shall create and submit payment
requests in an electronic format through the DC Vendor Portal,
https://vendorportal.dc.gov. The Design - Builder shall submit proper invoices
on a monthly basis. To constitute a proper invoice, the Design-Builder shall
enter all required information into the Portal after selecting the applicable
purchase order number which is listed on the Design-Builder’s profile.
Section 5.22 Conformance with Laws.
It shall be the responsibility of the Design -Builder to perform under the Agreement in
conformance with the Department’s Procurement Regulations and all applicable statutes, laws,
codes, ordinances, regulations, rules, requirements, orders, and policies of governmental
bodies, including, without limitation, the U.S. Government and the District of Columbia
government; and it is the sole responsibility of the Design -Builder to determine the
Procurement Regulations, statutes, laws, codes, ordinances, regulations, rules, requirements
and orders that apply and their effect on the Design-Builder’s obligations thereunder.. Given
the requirements for the Project, the Department may, at its sole discretion, (i) apply for
variance to the requirement of adhering to the Green Building Act on the Project and (ii)
consider deferring the scope of work associated with storm water management to a later phase
of the Project.
Section 5.23 Licensing, Accreditation and Registration
The Design-Builder and all of its Subcontractors and subconsultants (regardless of tier)
shall comply with all applicable District of Columbia, state, and federal licensing,
accreditation, and registration requirements and standards necessary for the performance of the
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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:
a) A complete set of the Design-Builder’s Project files.
b) A complete set of product manuals (O&M), training videos, warranties, etc.
c) As built record drawings.
d) Attic stock and schedule.
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.
k) All other deliverables as required in Exhibit T DGS Close Out Manual
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Article 6 - DESIGNATED REPRESENTATIVES
Section 6.1 Department’s Designated Representative.
The Department designates the individual(s) identified in Exhibit I as its representative
with express authority to bind the Department with respect to all matters requiring the
Department’s approval or authorization. Subject to the limitations on their authority specified
in Exhibit I, these representative(s) shall have the exclusive authority to make decisions on
behalf of the Department concerning estimates and schedules, construction budgets, ch anges
in the Work, and execution of Change Orders , Contract Modifications or Change Directives,
and shall render such decisions promptly and furnish information expeditiously, so as to avoid
unreasonable delay in the services or performance of the Work of the Design-Builder. In order
for the Department to effectively manage the Project and assure that the Design -Builder does
not receive conflicting instructions regarding the Work, the Design -Builder shall promptly
notify the Department’s representative upon receiving any instructions or other communication
in connection with the Design-Builder’s Work from any employee of the Department or other
purported agent of the Department other than the Department’s designated representative.
Section 6.2 Design-Builder’s Designated Representative.
The Design -Builder designates the individual(s) identified in Exhibit H as its
representative with express authority to bind the Design -Builder with respect to all matters
requiring the Design-Builder’s approval or authorization. In addition, the Department retains
the right to approve candidates to serve as on -site personnel in accordance with each
candidate’s experience with similar projects and local marketplace conditions. Once approved,
individuals cannot be changed without the Department’s prior approval. During the entire term
of the Agreement, it is agreed that the Design -Builder’s designated representative will devote
his or her time exclusively to the Project, unless the Department consents to a reduction in time.
All services provided by the Design-Builder shall be performed in accordance with the highest
professional standards recognized and adhered to by design-builders that build first-class state-
of-the-art buildings and projects that are similar to the Project in large urban areas.
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6 Article 7 - COMPENSATION AND PAYMENTS FOR DESIGN &
PRECONSTRUCTION PHASE SERVICES
Section 7.1 Compensation
Section 7.1.1 The Department shall compensate and make payments to
the Design -Builder for Design & Preconstruction Services in accordance with this
Article 7 and Article 10 . For Preconstruction Services, the Design -Builder’s
compensation shall be as set forth in the Project Information Section of this Agreement
(the “Preconstruction Fee”). The Preconstruction Fee shall be the Design-Builder’s sole
compensation for Preconstruction Phase Services. The Preconstruction Fee shall
include, but not be limited to, amounts necessary to compensate the Design-Builder for:
• Profit;
• Home Office Overhead;
• Fringe Benefits associated with staff costs;
• Payroll taxes associated with staff costs;
• Staff costs associated with obtaining permits and approvals
during the Design & Preconstruction Phase;
• Out-of-house consultants;
• Travel, Living and Relocation expenses;
• Job vehicles;
• Office equipment including but not limited to:
o Computer hardware and software;
o Fax machines; and
o Copying machines;
• Office supplies;
• Telephone; and
• Local delivery and overnight delivery costs.
Section 7.1.2 The Department shall compensate and make payments to
the Design-Builder for design services in accordance with this Article 7 and Article 10.
For design services, the Design -Builder’s compensation shall not exceed th e amount
set forth in the Project Information Section of this Agreement (the “Design Fee”).
Section 7.2 Payments
Section 7.2.1 Payments for Design & Preconstruction Phase Services
shall be made monthly over the anticipated duration of the Design & Preconstruction
Phase following presentation and acceptance of the Design-Builder’s invoice and shall
be in proportion to services performed. In no event, however, will the aggregate of the
Design-Builder’s monthly invoices for Design & Preconstruction Phase Services
exceed the Preconstruction Fee plus the Design Fee.
Section 7.2.2 Payments are due and payable in accordance with Article
9 of this Agreement. Amounts unpaid after the date of which payments 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 ex isting 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) Client Agency (DCPS) Chief of Facilities or their designee ; (iii)
DGS Contracting Officer or their desi gnee; (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 ac tive 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 Maximum Cost of General Conditions.
The Design-Builder shall not be entitled to recover more than the amount set forth in the
Project Information Section of this Agreement for the Cost of General Conditions (such
amount, the “Maximum Cost of General Conditions”) . If, as a result of any Change Order(s)
or Change Directive(s): (i) the Project durations exten ds 30 days or more beyond the
Substantial Completion Date; and (ii) the Design -Builder can demonstrate to the satisfaction
of the Department that such additional Costs of General Conditions are reasonable and not due
to any fault of the Design -Builder, its Subcontractors, material men, consultants or anyone
making claims thereunder, the Design -Builder may request a Change Order to adjust the
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Maximum Cost of General Conditions. To the extent the Design -Builder incurs Costs of
General Conditions in excess of the Maximum Cost of General Conditions, the Design-Builder
shall not be entitled to reimbursement for such amounts unless the Department authorizes, in
writing, an increase to the Maximum Cost of General Conditions. Nonetheless, in such an
event, if the Design-Builder exceeds the Maximum Cost of General Conditions, the Design -
Builder shall continue to be required to adequately staff the Project.
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 enti tled 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 D epartment’s written approval of such expenditure or
commitment, as well as a determination as to whether the work will qualify as a “capital”
expense under the Department’s financial guidelines to the extent capital money is to be
expended. In making such a request, the Design-Builder shall submit an itemized breakdown
of the work that the Design -Builder seeks to release using funds from the Initial NTE as well
as the associated costs of such work.
Section 8.4 Project Budget.
The Department has established the Project Budget as set forth in the Information
Section of this Agreement. When the GMP is established, such GMP shall not exceed the
Project Budget, and such GMP shall include any and all amounts which may be due to the
Design-Builder pursuant to this Agreement. In no event shall the Design-Builder be entitled to
recover more than the GMP unless the Design-Builder is authorized to exceed the GMP by the
Department in advance and in writing. The Design -Builder shall inform the Department’s
Contracting Officer at least fifteen (15) calendar days in advance, if the Design -Builder
encounters any foreseen or unforeseen Project-related events, which might reasonably affect
(i) existing Project Budget; or (ii) authorized appropriations by the Council.
Section 8.5 No Adjustments to Fee.
It is the Department’s intent to engage the Design-Builder to develop a GMP that meets
the programmatic requirements set forth in Exhibit A by the Client Agency and the Project
Budget as set forth herein (i.e. designed to budget), to allow for Substantial Completion of the
Work to be achieved no later than the Substantial Completion Date. The Design-Builder shall
be entitled to an adjustment to the Design-Build Fee at the time the GMP is established to the
extent, and only to the extent, that: (i) the Department makes additions to the scope that, when
measured relative to the program, cause the GMP to exceed the Design -Builder’s original
concept estimate by more than five percent (5%); or (ii) the Department makes additions to the
scope provided for herein which (other than for punchlist or warranty work) which requires the
Design-Builder’s services at the Project to extend 30 days or more beyond the Substantial
Completion Date. With regard to Change Orders iss ued after the GMP is established, 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 labor, material and other costs reasonably and
necessarily incurred in the proper performance of the Work as approved by the
Department and shall include, but not be limited to:
Section 8.7.1 Labor. Payment will be made for direct labor 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.
Section 8.7.2 Rented Equipment. Payment for required equipment rented
from an outside company that is neither an affiliate of, nor a subsidiary of, the Design -
Builder will be based on receipted invoices which shall not exceed rates given in the
current edition of the Rental Rate Blue Book for Construction Equipment published
online by Data Quest. If actual rental rates exceed manual rates, written justification
shall be furnished to the Contracting Officer for consideration. No additional allowance
will be made for overhead and profit. The Design -Builder shall submit written
certification to the Contracting Officer that any required rented equipment is neither
owned by nor rented from the Design -Builder or an affiliate of or subsidiary of the
Design-Builder.
Section 8.7.3 Design-Builder’s Equipment . Payment for required
equipment owned by the Design -Builder or an affiliate of the Design -Builder will be
based solely on an hourly rate derived by dividing the current appropriate monthly rate
by 176 hours. No payment will be made under any circumstances for repair costs, freight
and transportation charges, fuel, lubricants, insurance, any other costs and expenses, or
overhead and profit. Payment for such equipment made idle by delays attributable to the
Government will be based on one-half the derived hourly rate under this subsection.
Materials. Incorporated and unincorporated materials as Section 8.74
permitted under Section 9.1.
Section 8.7 .5 Direct Cost of the Work doe s not, however, include home
office overhead, field supervision, general conditions or profit of either the
Subcontractor or the Design-Builder. No personnel above the level of a working
foreman shall be considered a Direct Cost of the Work.
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Article 9 - COST OF THE WORK FOR CONSTRUCTION PHASE
Section 9.1 Cost of the Work.
The term “Cost of the Work” shall mean the costs necessarily incurred by the Design -
Builder in the proper performance of the Work and shall include only the following:
Section 9.1.1 Payments made by the Design -Builder to Subcontractors and suppliers,
other than design subconsult ants, but only in accordance with the
subcontracts and supply agreements;
Section 9.1. 2 Payments made by the Design -Builder to its design consultants and
subconsultants; provided, however, that the Design -Builder shall not be
reimbursed for the costs of design 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 an authorization for the Design-Builder
to engage in Self-Performed Work is not on a fixed-price basis, then, as to
that Work, the following costs shall be within the Cost of the Work:
(a) Labor. Properly documented wages actually paid to Project foremen,
construction workers, and other personnel in the direct employ of the Design -Builder, while
engaged in approved Self-Performed Work, together with contributions, assessments, payroll
taxes, or fringe benefits required by the laws or applicable collective bargaining agreements.
(b) Incorporated Materials. The cost, net of trade discounts, of all materials,
products, supplies and equipment incorporated into the Self -Performed Work, including,
without limitation, costs of transportation and handling.
(c) Unincorporated Materials. The cost of materials, products, supplies and
equipment not actually installed or incorporated into the Self-Performed Work, but required to
provide a reasonable allowance for waste or spoila ge, subject to the Design -Builder’s
agreement to turn unused excess materials over to the Department at the completion of the
Project or, at the Department’s option, to sell the material and pay the proceeds to the
Department or give the Department a credit in the amount of the proceeds against the Cost of
the Work.
Section 9.1.4 Royalty and license fees paid for use of a design, process or
product, if its use is required by this Agreement or has been approved in advance by the
Department;
Section 9.1.5 Fees for obtaining all requir ed approvals or permits associated
with any abatement, demolition, utilities abandonment, and utility relocation (including
utility connection fees), including any and all building and/or trade permits fees;
Section 9.1. 6 All performance and payment bonds and general l iability
insurance. The Department may, in its sole discretion, allow the Design -Builder to
recover the costs of subcontractor default insurance at a mutually agreed upon rate in
lieu of trade level bonds, provided that such insurance be approved by the D epartment
in advance and after being presented with a cost-benefit analysis of such use;
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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 quali ty 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 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, storm water
management, land disturbance, and grading);
Section 9.1. 9 The Cost of General Conditions, subject however to the
Maximum Cost of General Conditions; and
Section 9.1.10 Costs of repairing or correcting damaged or nonconforming
Work executed by the Design-Builder’s Architect , or Design -Builder’s other
consultants, Subcontractors or suppliers, provided that such damaged or nonconforming
Work was not caused by negligence or failure to fulfill a specific responsibility of the
Design-Builder, and only to the extent that the cost of repair or correction is not
recoverable by the 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 Cost of General Conditions.
Items included in the Cost of General Conditions are all items necessary to perform
Construction Phase Services described herein, including:
a) Cost of construction staff. Only staff stationed in the field are reimbursable;
b) Fringe Benefits associated with construction staff;
c) Payroll taxes and payroll insurance associated with construction staff;
d) Staff costs associated with obtaining permits and approvals;
e) Out-of-house consultants, including permit expeditors;
f) Job vehicles;
g) The field office for the Design -Builder including but not limited to: (i) trailer
purchase and/or rent; (ii) field office i nstallation, relocation and removal; (iii)
utility connections and charges during the Construction Phase; (iv) furniture; and
(v) office supplies;
h) Office equipment including, but not limited to: (i) computer hardware and
software; (ii) fax machines; (ii i) copying machines; (iv) telephone installation,
system and use charges; and (v) job radios;
i) Local delivery and overnight delivery costs;
j) Field computer network;
k) First aid facility;
l) Printing cost for drawings, bid packages, etc.;
m) BIM Cost (software, seats, hardware);
n) Parking costs for the construction staff; and
o) Salting sidewalks and shoveling snow on sidewalks that surround the site.
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
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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) or
Section 9.2. (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 due to breach of Contract by the Design-Builder or its subcontractors or
material suppliers at all tiers, including, without limitation, costs arising from
defective or damaged work or its correction, disposal of materials or equipment
erroneously supplied, and repairs to property damaged by the Design-Builder or
its Subcontractors or material suppliers at all tiers.
h) Any costs incurred in performing work of any kind before Preconstruction NTP,
unless specifically authorized by the Department in advance and in writing.
i) Direct or indirect costs of any kind, except those expressly included in Section
9.1.
Section 9.4 Discounts, Rebates And Refunds.
Section 9.4.1 Cash discounts obtained on payments made by the Design-Builder
shall accrue to the Department if: (i) before making such payment(s), the
Design-Builder included them in an Application for Payment and received
payment therefor from the Department; or (ii) the Department has deposited
funds with the Design-Builder with which to make such payment(s). All other
cash discounts shall accrue to the Design -Builder. Trade discounts, rebates,
refunds and amounts received from s ales of surplus materials and equipment
shall accrue to the Department, and the Design -Builder shall make provisions
so that such amounts can be secured.
Section 9.4.2 Amounts that accrue to the Department in accordance with the
provisions of Section 9.4.1 shall be credited to the Department as a deduction
from the Cost of the Work.
Section 9.5 Facilitating Tax Exempt Purchases.
The Department expects that the Project will qualify as tax -exempt under applicable
laws. Upon request, the Department will provide the Design -Builder with the necessary
information relating to the tax exemption. In the event any savings are attributable to the tax -
exempt status of the Project, the Design-Builder shall not be entitled to share in such savings.
Section 9.6 Accounting Records.
The Design-Builder shall keep full and detailed accounts and exercise such controls as
may be necessary for proper financial management under the Agreement. The Design -
Builder’s accounting and control systems shall be satisfactory to the Department. The
Department, its representatives, and the Department’s accountants shall be afforded access to
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the Design -Builder’s records, books, correspondence, instruction, drawings, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and
the Design -Builder shall preserve such Project documentation relating to the Project for a
period of three years after final payment, or for such longer period as may be required by law.
Section 9.7 Excluded Cost Elements.
It is the Department’s intent that the Design -Builder provide a turnkey solution for the
implementation of the Project, and the Project Budget set herein has been developed based on
such framework. The Design-Builder shall advance the Project in a manner consistent with
the Project Budget with the understanding that only the following cost elements shall be
excluded from the Project Budget set forth herein:
1. 3rd Party Material Testing;
2. Commissioning; and
3. 3rd Party Inspections.
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9 Article 10 - CONSTRUCTION PHASE PAYMENTS
Section 10.1 Progress Payments.
The Design-Builder shall be compensated in a series of progress payments and a Final
Payment, for Work completed in accordance with the Agreement, and for which proper
Applications for Payment have been submitted and approved. The amount of each progress
payment shall be as follows:
The Cost of Work completed to date
Plus Cost of Work for Pay Period x 60% Design-Build Fee
Current approved estimated Cost of Work through Final Completion
Plus Any subset of the Design -Build Fee to which the Department has determined
the Design-Builder to be Entitled
Minus Applicable retainage
Minus Amounts previously paid by the Department
Section 10.2 Retention.
The Department shall withhold from each progress payment an amount equal to ten
percent (10%) of the payment related to: (i) each Subcontract and supply agreement; (ii) the
Preconstruction Fee; (iii) Design-Build Fee; (iv) General Conditions Costs; and (v) the Cost of
the Work related to each item of Sel f-Performed Work, until such time as fifty percent (50%)
of the then currently budgeted cost associated with each such item has been invoiced, at which
point the Department may cease retaining against such item; provided, however, that retention
shall not be held on the costs of bonds, insurances, and those elements of the general
requirements which consist of a single, insolated effort such as dumpster disposal and safety
carpentry. The Department at its sole and absolute discretion may elect to increase the retention
on 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 stored at the site or stored at
other locations absent prior written authorization to do so, which authorization may be withheld
at the Department's sole discretion. If the Depa rtment expressly agrees to pay for materials
stored at the site but not yet incorporated into the Work, the Application for Payment may also
include a request for payment of the cost of such materials, if the materials have been delivered
to the site, and suitably stored. Such requests shall be documented by appropriate invoices and
bills of sale. Payment for stored materials shall be conditioned also on the Design -Builder’s
representation that it has inspected the material and found it to be free from defect and
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otherwise in conformity with this Agreemen t, 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 execution of proper Project documentation to afford the
Department a secured interest in the materials upon payment.
Section 10.4 Design-Builder’s Certification.
Each Application for Payment shall be accompanied by the Design -Builder's signed
certification that:
Section 10.4.1. all amounts paid to the Design-Builder on the previous Application for
Payment that were attributable to Subcontractor 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 for 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 equipment for which payment is sought is,
to the best of the Design -Builder's knowledge, free from defect and meets all of the
requirements set forth in the Agreement:
Section 10.4.4. that the Design-Builder’s subcontracts include the clauses required by
subparagraphs (1) through (4) of D.C. Official Code §2-221.02(d) (2017).
Section 10.4.5. The Design-Builder shall not include in an Application for Payment
amounts for Work for which the Design-Builder does not intend to pay.
Section 10.6 Lien Waivers.
Each Application for Payment shall be accompanied by written waivers of the right to
file a mechanic’s lien and all other claims, in a form substantially similar to Exhibit K for the
Design-Builder and all Subcontractors and material suppliers at all t iers who have supplied
labor or material or both for which payment is requested, subject only to receipt of payment.
If the Department so requests, the Design -Builder shall also submit unconditional waivers of
liens for itself and all Subcontractors and material suppliers at all tiers with respect to Work or
materials or equipment for which payment has been previously made, and additional forms of
waiver acknowledging receipt of final payment under the Agreement, and providing final
release of such liens.
Section 10.7 Warranty of Title.
By submitting an Application for Payment, the Design -Builder warrants to the
Department that title to all Work for which payment is sought will pass to the Department,
without liens, claims, or other encumbrances, upon the receipt of payment by the Department.
The Department may require execution of appropriate Project documents to confirm passage
of clear title. Passage of title shall not operate to pass the risk of loss with respect to the Work
in question. Risk of loss remains with the Design-Builder until Substantial Completion, unless
otherwise agreed by the Department, in writing.
Section 10.8 Submission.
On the twenty -fifth day of each month the Design -Builder shall submit to the
Department (with a copy to the Program Manager) an Application for Payment, which
Application for Payment shall cover the entire month during which the Application for
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Payment is submitted. All amounts formally submitted via Application for Payment and not
disputed by the Department shall be due and pa yable on the last day of the month following
submission or, if that is not a business day, on the following business day. If the Design -
Builder and Department are unable to agree on the amounts properly due and owing, the
Department shall pay in accordance with its good faith determination and the Design -Builder
may protest and pursue a claim as provided in this Agreement and the Standard Contract
Provisions (Construction Contracts and Architectural and Engineering Services Contracts).
Section 10.9 Right to Withhold Payments.
The Department will notify the Design -Builder within fifteen (15) days after receiving
any Application for Payment of any defect in the Application for Payment or the Design -
Builder’s performance which may result in the Department’s declinin g 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 reali stic 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 ha s made false or inaccurate certifications that payments to Subcontractors or
suppliers are due or have been made; or
Section 10.9.6 any mechanic’s lien has been filed against the Department, the
site or any portion thereof or interest therein, or any improvements on the site, even though the
Department has paid all undisputed amounts due to the Design -Builder, and the Design -
Builder, upon notice, has failed to remove the lien, by bonding it off or otherwise, within ten
(10) calendar days; or
Section 10.9.7 the Department has reasonable evidence that the Work will not
be completed by the Substantial Completion Date, as required, that the unpaid balance of the
GMP would not be adequate to cover actual or liquidated damages arising from the anticipated
delay; or
Section 10.9.8 the Department has reasonabl e 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;.
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Section 10.9.10 the Application for Payment is incomplete, unsubstantiated
and/or does not contain sufficient documentation for evaluation by the Contracting Officer.
Section 10.10 Payment Not Acceptance.
Payment of any progress payment or final payment shall not constitute acceptance of
Work that is defective or otherwise fails to conform to the Agreement, or a waiver of any rights
or remedies the Department may have with respect to defective or nonconforming Work.
Section 10.11 Department Not Obligated to Others.
The Department shall have no obligation to pay or be responsible in any way for
payments to a consultant or subcontractor performing portions of the Work.
Section 10.12 Final Payment.
A final payment (“Final Payment”) shall be made by the Department to the Design -
Builder when: (i) Final Completion has been achieved; (ii) all deliverables set forth in Section
5.14, and Exhibit N have been delivered to and are accepted by the Department; (iii) the
Design-Builder provides the Department a complete set of product manuals (O&M), training
videos, and warranties, as applicable; and (iv) a complete final Application for Payment and a
final accounting for the Cost of the Work have been submitted by the Design -Builder and
reviewed by the Department and, to the extent the Department det ermines appropriate, the
Department’s accountants. The Department shall make Final Payment not more than thirty
(30) days after the Department verifies the amount of the final payment set forth in a complete
final Application for Payment.
Section 10.12.1 The amount of the Final Payment shall be calculated as follows:
Section 10.12.1.1 Take the sum of the Cost of the Work substantiated by the
Design-Builder’s final accounting and the Design -Build Fee; but not more than the
GMP.
Section 10.12.1.2 Subtract amounts, if any, for which the Department withholds
pursuant to the Agreement.
Section 10.12.1. 3 Subtract the aggregate of previous payments made by the
Department. (If the aggregate of previous payments made by the Department exceeds
the amount due the Design -Builder, the Design -Builder shall promptly reimburse the
difference to the Department).
Section 10.12.1. 4 The Final Payment shall take into account any savings
accruing to the Department or the Design-Builder.
Section 10.12.1. 5 The Department will review and report in writing on the
Design-Builder’s final accounting within 30 days after delivery of the final accounting
to the Department by the Design -Builder. Based upon Department’s determination of
the Cost of the Work, and provided the other conditions of Section 10.12.1 have been
met, the Department will, within fifteen (15) days after the Department’s determination,
notify the Design -Builder of any amount that the Department will withhold and the
reasons therefor. The time periods stated in this Section 10.12.1.5 supersede those for
typical progress payments.
Section 10.12.1.6 If the Department determines that the Cost of the Work is
other than that claimed by the Design -Builder, the Design -Builder shall be entitled to
proceed in accordance with Article 3 of the Standard Contract Provisions (Construction
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Contracts). Pending a final resolution of the disputed amount, the Department shall pay
the Design-Builder the amount that the Department determines to be appropriate.
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10 Article 11 - INSURANCE
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 performance under this contract, the types of
insurance specified below. The Contractor shall have its insurance broker or insurance
company submit a Certificate of Insurance to the CO giving evidence of the required
coverage prior to commencing performance under this contract. In no event shall any
work be performed until the required Certificates of Insurance signed by an authorized
representative of the insurer(s) have been provided to, and accepted by, the CO. All
insurance shall be written with financially responsible companies authorized to do
business in the District of Columbia or in the jurisdiction where the work is to be
performed and have an A.M. Best Company rating of A - / VII or higher. Should the
Contractor decide to engage a subcontractor for segments of the work under this
contract and wish to propose different insurance requirements than outlined below,
then, prior to commencement of work by the subcontractor, the Contractor shall submit
in writing the name and brief description of work to be performed by the subcontractor
on the Subcontractors Insurance Requirement Template provided by the CA, 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 and the CA. The Contractor must provide proof of the subcontractor's
required insurance prior to commenceme nt of work by the subcontractor. If the
Contractor decides to engage a subcontractor without requesting from ORM specific
insurance requirements for the subcontractor, such subcontractor shall have the same
insurance requirements as the Contractor.
General liability, commercial auto, workers' compensation and property
insurance policies (if applicable to this agreement) shall contain a waiver of subrogation
provision in favor of the Government of the District of Columbia.
The Government of the Dist rict of Columbia shall be included in all policies
required hereunder to be maintained by the Contractor and its subcontractors (except
for workers’ compensation and professional liability insurance) as an additional
insureds for claims against The Government of the District of Columbia relating to this
contract, with the understanding that any affirmative obligation imposed upon the
insured Contractor or its subcontractors (including without limitation the liability to pay
premiums) shall be the sole oblig ation 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’ liabili ty 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 ot her insurance, reinsurance or self -insurance, including
any deductible or retention, maintained by an Additional Insured) for all claims against
the additional insured arising out of the performance of this Statement of Work by the
Contractor or its subcon tractors, 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.
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If the Contractor and/or its subcontractors maintain broader coverage an d/or higher
limits than the minimums shown below, the District requires and shall be entitled to the
broader coverage and/or the higher limits maintained by the Contractor and
subcontractors.
B. INSURANCE REQUIREMENTS
1. Commercial General Liability Insurance (“CGL”) - The Contractor shall provide
evidence satisfactory to the CO with respect to the services performed that it carries
a CGL policy, written on an occurrence (not claims -made) basis, on Insurance
Services Office, Inc. (“ISO”) form CG 00 01 04 13 (or another occurrence-based
form with coverage at least as broad and approved by the CO in writing), covering
liability for all ongoing and completed operations of the Contractor, including
ongoing and completed operations under all subcontracts, and coverin g claims for
bodily injury, including without limitation sickness, disease or death of any persons,
injury to or destruction of property, including loss of use resulting therefrom,
personal and advertising injury, and including coverage for liability arisi ng 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 (including a per location or per project aggregate limit
endorsement, if applicable) limit, a $1,000,000 personal and advertising injury
limit, and a $2,000,000 products -completed operations aggregate limit including
explosion, collapse and underground hazards.
The contractor should be named as an additional insured on the applicable
manufacturer’s/distributer’s Commercial General Liability policy using Insurance
Services Office, Inc. (“ISO”) form CG 20 15 04 13 ( or another occurrence-based
form with coverage at least as broad).
DGS should collect, review for accuracy and maintain all warranties for
goods and services.
2. Automobile Liability Insurance - The Contractor shall provide evidence satisfactory
to the CO of commercial (business) automobile liability insurance written on ISO
form CA 00 01 10 13 (or another form with coverage at least as broad and approved
by the CO in writing) including coverage for all owned, hired, borrowed and non -
owned vehicles and equipment used by the Contractor, with minimum per accident
limits equal to the greater of (i) the limits set forth in the Contractor’s commercial
automobile liability policy or (ii) $1,000,000 per occurrence combined single limit
for bodily injury and property damage.
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.
All insurance required by paragraphs 1,2 and 3 shall include a waiver of subrogation
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endorsement for the benefit of Government of the District of Columbia.
4. Crime Insurance (3rd Party Indemnity) - The Contractor shall provide a Crime
policy including 3 rd party fidelity to cover the dishonest acts of Contractors, its
employees and/or volunteers which result in a loss to the District. The Government
of the District of Columbia shall be included as loss payee. The policy shall provide
a limit of $15,000 per occurrence.
5. Cyber Liability Insurance - The Contractor shall provide evidence satisfactory to
the Contracting Officer of Cyber Liability Insurance, with limits not less than
$2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be
sufficiently broad to respond to the duties and obligations as is undertaken by
Contractor in this agreement and shall include, but not limited to, claims involving
infringement of intellectual property, including but not limited to infringement of
copyright, trademark, trade dress, invasion of privacy violations, information theft,
damage to or destruction of electronic information, release of private information,
alteration of electronic information, extortion and network security. The policy
shall provide coverage for breach response costs as well as regulatory fines and
penalties as well as credit monitoring expenses with limits sufficient to respond to
these obligations. Limits may not be shared with other lines of coverage. A copy of
the cyber liability policy must be submitted to the Office of Risk Management
(ORM) for compliance review.
6. 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 cond itions 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 n on-owned
disposal sites. Coverage shall extend to defense costs and expenses incurred in the
investigation, civil fines, penalties and damages or settlements. There shall be
neither an exclusion nor a sublimit for mold or fungus -related claims. The
minimum limits required under this paragraph shall be equal to the greater of (i) the
limits set forth in the Contractor’s pollution liability policy or (ii) $2,000,000 per
occurrence and $2,000,000 in the annual aggregate. If such coverage is written on
a claims-made basis, the Contractor warrants that any retroactive date applicable to
coverages under the policy precedes the Contractor’s performance of any work
under the Contract and that continuous completed operations coverage will be
maintained for at lea st ten (10) years or an extended reporting period shall be
purchased for no less than ten (10) years after completion.
The Contractor also must furnish to the CO - Owner certificates of insurance
evidencing environmental liability insurance maintained by third party
transportation and disposal site operators(s) used by the Contractor for losses
arising from facility(ies) accepting, storing or disposing hazardous materials or
other waste as a result of the Contractor’s operations. Such coverages must be
maintained with limits of at least the amounts set forth above.
7. Employment Practices Liability - The Contractor shall provide evidence
satisfactory to the Contracting Officer with respect to the operations performed to
cover the defense of claims arising f rom employment related wrongful acts
including but not limited to: Discrimination, Sexual Harassment, Wrongful
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Termination, Workplace Torts, "Bullying" in "any location" and "by any means,"
including the Internet , whether between employees of contractor or against third
parties. Employment Practices Liability coverage must specifically state Third
Party Liability coverage is included. Contractor will indemnify and defend the
District of Columbia should it be named co -defendant or be subject to or party of
any claim. Coverage shall also extend to Temporary Help Firms and Independent
Contractors hired by Contractor. The policy shall provide limits of not less than
$1,000,000 for each wrongful act and $2,000,000 annual aggregate for each
wrongful act.
8. 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 part of the project. The policy shall cover property
while located at the project site, at temporary locations, or in transit; deductibles
will be the sole responsibility of the contractor.
9. Professional Liability Insurance (Errors & Omissions) - The Contractor shall
provide Professional Liability Insurance (Errors and Omissions) to cover liability
resulting from any error or omission in the performance of professional services
under this Contract. The policy shall provide limits of $ 1,000,000 per claim or per
occurrence for each wrongful act and $2,000,000 annual aggregate. The Contractor
warrants that any applicable retroactive date precedes the date the Contractor first
performed any professional services for the Government of the District of Columbia
and that continuous coverage will be maintained or an extended reporting period
will be exercised for a period of at least ten years after the completion of the
professional services. Limits may not be shared with other lines of coverage.
10. Sexual/Physical Abuse & Molestation - The Contractor shall provide evidence
satisfactory to the Contracting Officer with respect to the services performed that it
carries $1,000,000 per occurrence limits; $2,000,000 aggregate of affirmative abuse
and molestation liability coverage. Coverage should include physical abuse, such
as sexual or other bodily harm and non -physical abuse, such as verbal, emotional
or mental abuse; any actual, threatened or alleged act; errors, omission or
misconduct. This insurance requirement will be considered me t if the general
liability insurance includes an affirmative sexual abuse and molestation
endorsement for the required amounts. So called “silent” coverage or “shared”
limits under a commercial general liability or professional liability policy will not
be acceptable. Limits may not be shared with other lines of coverage. The applicable
policy may need to be submitted to the Office of Risk Management (ORM) for
compliance review.
11. Commercial Umbrella or Excess Liability - The Contractor shall provide evidence
satisfactory to the CO of commercial umbrella or excess liability insurance with
minimum limits equal to the greater of (i) the limits set forth in the Contractor’s
umbrella or excess liability policy or (ii) $ 10,000,000 per occurrence and
$10,000,000 in the annual aggregate, following the form and in excess of all liability
policies. All liability coverages must be scheduled under the umbrella and/or excess
policy. The insurance required under this paragraph shall be written in a form that
annually reinstates all required limits. Coverage shall be primary to any insurance,
self-insurance or reinsurance maintained by the District and the “other insurance”
provision must be amended in accordance with this requirement and principles of
vertical exhaustion.
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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. Bu ilding ordnance and terrorism coverage will be
included.
The deductible shall not exceed $25,000 except for earthquake, flood,
windstorm, water damage or other perils at the discretion of the District and as
available in the insurance industry.
The project limit shall equal the replacement value of the structure, including
coverage for property in transit and stored off premises.
At the discretion of the District, builders risk coverage will extend to soft
costs and delayed completion.
Builders risk insurance shall include the interests of The Government of the
District of Columbia, the Contractor, Subcontractors and Sub – subcontractors in
the project.
C. 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.
D. DURATION. The Contractor shall carry all required insurance until all contract work
is accepted by 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.
E. LIABILITY. These are the required minimum insurance requirements established by
the District of Columbia. However, the required minimum insurance requirements
provided above will not in any way limit the contractor’s liability under this contract.
F. CONTRACTOR’S PROPERTY. Contractor and subcontractors are solely responsible
for any loss or damage to their personal property, including but not limited to tools and
equipment, scaffolding and temporary structures , rented machinery, or owned and
leased equipment. A waiver of subrogation shall apply in favor of the District of
Columbia.
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G. MEASURE OF PAYMENT . The District shall not make any separate measure or
payment for the cost of insurance and bonds. The Contractor shall include all of the
costs of insurance and bonds in the contract price.
H. NOTIFICATION. The Contractor shall ensure that all policies provide that the CO
shall be given thirty (30) days prior written notice in the event of coverage and / or limit
changes or if the policy is canceled prior to the expiration date shown on the certificate.
The Contractor shall provide the CO with ten (10) days prior written notice in the event
of non-payment of premium. The Contractor will also provide the CO with an updated
Certificate of Insurance should its insurance coverages renew during the contract.
I. CERTIFICATES OF INSURANCE. The Contractor shall submit certificates of
insurance giving evidence of the required coverage as specified in this section pri or to
commencing work. Certificates of insurance must reference the corresponding contract
number. Evidence of insurance shall be submitted to:
The Government of the District of Columbia
And emailed to the attention of:
Peter Ghogomu
Contracting Officer
Department of General Services
Contracts & Procurement Division
1250 U Street NW, 2nd floor
Washington, DC 20009
peter.ghogomu@dc.gov
The CO may request and the Contractor shall promptly deliver updated certificates of
insurance, endorsements indicating the required coverages, and/or certified copies of
the insurance policies. If the insurance initially obtained by the Contractor expires prior
to completion of the contract, renewal certificates of insurance and additional insured
and other endorsements shall be furnished to the CO prior to the date of expiration of
all such initial insurance. For all coverage required to be maintained after completion,
an additional certificate of insurance evidencing such coverage shall be submitted to
the CO on an annual basis as the coverage is renewed (or replaced).
J. DISCLOSURE OF INFORMATION. The Contractor agrees that the District may
disclose the name and contact information of its insurers to any third party which
presents a claim against the District for any damages or claims resulting from or arising
out of work performed by the Contractor, its agents, employees, servants or
subcontractors in the performance of this contract.
K. 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 t he equivalent by any other rating
agency) and licensed in the District.
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Article 12- BONDS
Section 12.1 Performance Bond and Payment Bond.
The Design-Builder shall, before commencing the Construction Phase, provide to the
Department with a payment bond and performance bond, each with a penal sum equal to the
full value of the Agreement. The Design-Builder will be required to post an updated p ayment
and performance bonds to reflect the GMP Amendment amount. Such bond shall remain in full
force and effect until Final Completion is achieved and the Department shall be able to draw
upon such bond regardless of the amount paid by the Department to the Design-Builder, even
if such amount exceeds the penal value of such bond. Unless otherwise directed by the
Department, the Design -Builder shall require all Subcontractors whose Subcontract prices
exceed One Hundred Thousand Dollars ($100,000) to provi de payment and performance
bonds, with a penal sum equal to one hundred percent (100%) of the subcontract price. All
bonds must be in a form acceptable to the Department, its lenders or bond trustee, and issued
by a surety authorized to do business in the District of Columbia and bonding company listed
on the United States Department of Treasury’s Listing of Approved Sureties. All
Subcontractors’ bonds must include a dual obligee rider, naming the Design -Builder and the
Department as dual obligees. If the Guaranteed Maximum Price is increased pursuant to the
terms of the Agreement, the Department may require that the amount of the bonds be increased
in the amount of one hundred percent (100%) of the increase, and the Design -Builder shall
promptly comply. T he 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 ob jection it may
reasonably have to the proposed action.
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Article 13 - ECONOMIC INCLUSION REQUIREMENTS
Section 13.1 LSDBE Utilization.
If the Design -Builder subcontracts any work, at least (35%) of the dollar volume of the
Agreement shall be subcontracted with s mall business enterprises (“SBE”). If there are
insufficient qualified SBEs then the subcontracting may be satisfied by subcontracting
(35%) of the dollar volume to any qualified certified business enterprises (“CBE”) . For
subcontracted work, pass through entities will not count toward this goal. In order to count
toward the subcontracting requirement, the SBE must perform at least (35%) of the work that
is being counted toward the goal with its own forces. The Local, Small, and Disadvantaged
Business Enterprises (“LSDBE”) certification shall be, in each case, as of the effective date of
the applicable subcontract. Supply agreements with material suppliers shall be counted toward
meeting this goal. The Design -Builder has developed a Subcontracting P lan that is attached
hereto as Exhibit D. The Design -Builder shall comply with the terms of the SBE
Subcontracting Plan in making purchases and administering its subcontracts and supply
agreements.
Section 13.2 Mandatory Subcontracting Requirements
Section 13.2.1 Unless the Director of the Department of Small and Local Business
Development (DSLBD) has approved a waiver in writing, in accordance with D.C. Official
Code § 2-218.51, for all contracts in excess of $250,000, at least 35% of the dollar volume of
the contract shall be subcontracted to qualified small business enterprises (SBEs).
Section 13.2.2 If there are insufficient SBEs to completely fulfill the requirement of
Section 13.2.1, then the subcontracting may be satisfied by subcontracting 35% of the dollar
volume to any qualified certified business enterprises (CBEs); provided, however, that all
reasonable efforts shall be made to ensure that SBEs are significant participants in the overall
subcontracting work.
Section 13.2.3 A prime contractor that is certified by DSLBD as a small, local or
disadvantaged business enterprise shall not be required to comply with the provisions of
Section 13.2.1 and 13.2.2.
Section 13.2.4 Except as provided in Sections 13.2.5 and 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 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 contracto r that is a certified joint venture and has been
granted a proposal preference pursuant to D.C. Official Code § 2 -218.43, or is selected
through a set-aside program, shall perform at least 50% of the contracting effort with its own
organization and resources and, if it subcontracts, 35% of the subcontracting effort shall be
with CBEs. A certified joint venture prime contractor that performs less than 50% of the
contracting effort shall be subject to enforcement actions under D.C. Official Code § 2-
218.63.
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Section 13.2.6 Each CBE utilized to meet these subcontracting requirements shall
perform at least 35% of its contracting effort with its own organization and resources.
Section 13.2.7 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.
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 pr eviously stated herein; and,
any reduction in the dollar volume of the subcontracted portion resulting from an amendment
of the Subcontracting Plan shall inure to the benefit of the District. The Subcontracting Plan
shall include the following:
(1) The name and address of each subcontractor;
(2) A current certification number of the small or certified business enterprise;
(3) The scope of work to be performed by each subcontractor; and
(4) The price that the prime contractor will pay each subcontractor.
Section 13.4 Copies of Subcontracts
Within twenty-one (21) days of the date of award, the Contractor shall provide fully
executed copies of all subcontracts identified in the subcontracting plan to the Contracting
Officer (CO), District of Columbia Auditor and the Director of DSLBD.
Section 13.5 Subcontracting Plan Compliance Reporting
Section 13.5.1 If the Contractor has a subcontracting plan required by law for this
contract, the Contractor shall submit a quarterly report to the C ontracting Officer,
District of Columbia Auditor, and the Director of DSLBD. The quarterly report shall
include the following information for each subcontract identified in the subcontracting
plan:
(A) The price that the prime contractor will pay each subcontractor under
the subcontract;
(B) A description of the goods procured or the services subcontracted for;
(C) The amount paid by the prime contractor under the subcontract; and
(D) A copy of the fully executed subcontract, if it was not provided with
an earlier quarterly report.
Section 13.5.2 If the fully executed subcontract is not provided with the quarterly
report, the prime contractor will not receive credit toward its subcontracting
requirements for that subcontract.
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Section 13.6 Annual Meetings
Upon at least 30 -days written notice provided by DSLBD, the Contractor shall meet
annually with the CO, CA, District of Columbia Auditor and the Director of DSLBD to
provide an update on its subcontracting plan.
Section 13.7 DSLBD Notices
The Contractor shall provide written notice to the DSLBD and the District of Columbia
Auditor upon commencement of the contract and when the contract is completed.
Section 13.8 Enforcement and Penalties for Breach of Subcontracting Plan
Section 13.8.1 A contractor shall be deemed to have breached a subcontracting plan
required by law, if the contractor (i) fails to submit subcontracting plan monitoring or
compliance reports or other required subcontracting information in a reasonably timely
manner; (ii) submits a monitoring or compliance report or other required subcontracting
information containing a materially false statement; or (iii) fails to meet its subcontracting
requirements.
Section 13.8.2 A contractor that is found to have breached its subcontracting plan for
utilization of CBEs in the performance of a contract shall be subject to the imposition of
penalties, including monetary fines in accordance with D.C. Official Code § 2-218.63.
Section 13.8.3 If the CO determines the Contractor’s failure to be a material breach
of the contract, the CO shall have cause to terminate the contract under the default provisions
in Article 16 of the Contract.
Section 13. 8.4 Neither the Design -Builder nor a Subcontract or 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 on the Project.
Section 13.9 Equal Employment Opportunity and Hiring of District Residents
Section 13.9.1 For contracts for services in the amount of $300,000 or more, the
Design-Builder shall comply with the First Source Employment Agreement Act of 1984,
as amended, D.C. Official Code § 2-219.01 et seq. (“First Source Act”).
Section 13.9.2 The Design-Builder shall enter into and maintain during the term of
the Contract, a First Source Employment Agreement (Employment Agreement) (Exhibit
V) with the District of Columbia Department of Employment Service’s (DOES), in which
the Design-Builder shall agree that: (a) The f irst 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 Sou rce Amendment Act of
2011, and the rules and regulations promulgated thereunder, including, but not limited to
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the following requirements:
a) At least twenty percent (20%) of journey worker hours by trade shall be performed
by District residents;
b) At least sixty percent (60%) of apprentice hours by trade shall be performed by
District residents;
c) At least fifty one percent (51%) of the skilled laborer hours by trade shall be
performed by District residents; and
d) At least seventy percent (70%) of c ommon laborer hours shall be performed by
District residents.
Section 13.9.4 The Design-Builder shall not begin 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-consultant’s and
subcontractor’s employees hired after the effective date of the Agreement, or after such
subconsultant or subcontractor enters into a contract with the Design -Builder, to work on
the Project shall be residents of the District of Columbia. This percentage shall be applied
in the aggregate, and not trade by trade.
Section 13.9.6 The Contractor’s hiring and reporting requirements under the First
Source Act and any rules promulgated thereunder shall continue for the term of the
Contract.
Section 13.9.7 The CO may impose penalties, including monetary fines of 5% of the
total amount of the direct and indirect labor costs of the Contract, for a willful breach of
the Employment Agreement, failure to submit the required hiring compliance reports, or
deliberate submission of falsified data.
Section 13.9.8 If the Design-Builder does not receive a good faith waiver, the CO
may also impose an additional penalty equal to 1/8 of 1% of the total amount of the direct
and indirect labor costs of the Contract for each pe rcentage by which the Design -Builder
fails to meet its hiring requirements.
Section 13.9.9 Any contractor which violates, more than once within a 10 -year
timeframe, the hiring or reporting requirements of the First Source Act shall be referred for
debarment for not more than five (5) years.
Section 13.9.10 The Design-Builder may appeal any decision of the CO pursuant to
this clause to the DC Contract Appeals Board located at 441 4th Street, NW, Suite 350N,
Washington, DC 20001.
Section 13.9.11 The provisions of the First Sourc e Act do not apply to nonprofit
organizations which employ 50 employees or less.
Section 13.9.12 Construction projects or contracts covered by this Section 13.9 of
the Contract shall be subject to the hiring and reporting requirements set forth in this
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Section until construction is completed and a final certificate of occupancy has been issued.
Section 13.9.13 The Design-Builder shall comply with applicable laws, regulations
and special requirements of the Contract Documents regarding equal employment
opportunity and affirmative action programs. In accordance with the District of Columbia
Administrative Issuance System, Mayor’s Order 85-85 dated June 10, 1985, the forms for
completion of the Equal Employment Opportunity Information Report are incorporated
here in as (Exhibit P). A contract award cannot be made to any contractor that has not
satisfied the equal employment requirements.
Section 13.10 Economic Inclusion Reporting Requirements
Section 13.10.1 Upon execution of the Agreement, the Design -Builder and all its
member firms, if any, and each of its Subcontractors shall submit to the Department a list of
current employees and apprentices that will be assigned to the Agreement, the date they were
hired and whether or not they live in the District of Columbia.
Section 13.10.2 The Design-Builder and its constituent entities shall comply with
subchapter X of Chapter II Title 2, and subchapter II of Chapter 11 of Title 1 of the D.C.
Code, and all successor acts thereto and the rules and regulations promulgated thereunder.
The Design-Builder and all member firms and Subcontractors shall execute a First Source
Agreement with the District of Columbia Department of Employment Services (“DOES”)
prior to beginning work at the Project site.
Section 13.10.3 The Design-Builder shall maintain detailed records relating to the
general hiring of District of Columbia and community residents.
Section 13. 10.4 The Design -Builder shall be responsible for: (i) including the
provisions of Section 9.3 in all subcontracts; (ii) collecting the information required in
Section 9.3 from its Subcontractors; and (iii) providing the information collected from its
Subcontractors in the reports required to be submitted by the Design -Builder pursuant to
Section 9.3.
Section 13.10.5. Reserved.
Section 13.10.6 Living Wage Act . In addition to the requirements set forth in the
First Source Employment Agreement, the Design -Builder shall comply with all applicable
provisions of the Living Wage Act of 2006, Exhibit Q, as amended (codified at D.C. Official
Code §§ 2-220.01 et seq.) and its implementing regulations.
Section 13.10.7 Apprenticeship Act. The D.C. Apprenticeship Act of D.C. Law 2-156,
(as amended, the Act) may apply to these Projects. As applicable, the Design -Builder firms
and its Subcontractors selected to perform work on the Projects on a craft -by-craft basis may
be required to comply w ith the Act. If applicable, all terms and conditions of the D.C.
Apprenticeship Council Rules and Regulations shall be implemented, and the selected Design-
Builder firms shall be liable for any subcontractor non-compliance.
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.
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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 and Design -
Builder will find the current living wage rate on its website at www.does.dc.gov.
Section 13.11.5 The Design -Builder shall provide a copy of the Fact Sheet
attached within Exhibit Q to each employee and subcontractor who performs services under
the Contract. The Design -Builder shall also post the Notice attached within Exhibit Q in a
conspicuous place in its place of business. The Design-Builder shall include in any subcontract
for $15,000 or more a provision requiring the subcontractor to post the Notice in a conspicuous
place in its place of business.
Section 13.11.6 The Design-Builder shall maintain its payroll records under the
Contract in the regular course of business for a period of at least three (3) years from the payroll
date, and shall include this requirement in its subcontracts for $15,000 or more under the
Contract.
Section 13.11.7 The payment of wages required under the Living Wage Act of 2006
shall be consistent with and subject to the provisions of D.C. Official Code §32-1301 et seq.
Section 13.11.8 The requirements of the Living Wage Act of 2006 do not apply to:
(1) Contracts or othe r agreements that are subject to higher wage level
determinations required by federal law;
(2) Existing and future collective bargaining agreements, provided, that the future
collective bargaining agreement results in the employee being paid no less than the established
living wage;
(3) Contracts for electricity, telephone, water, sewer or other services provided by
a regulated utility;
(4) Contracts for services needed immediately to prevent or respond to a disaster or
imminent threat to public health or safety declared by the Mayor;
(5) Contracts or other agreements that provide trainees with additional services
including, but not limited to, case management and job readiness services; provided that the
trainees do not replace employees subject to the Living Wage Act of 2006;
(6) An employee under 22 years of age employed during a school vacation period,
or enrolled as a full-time student, as defined by the respective institution, who is in high school
or at an accredited institution of higher education and who works less than 25 hours per week;
provided that he or she does not replace employees subject to the Living Wage Act of 2006;
(7) Tenants or retail establishments that occupy property constructed or improved
by receipt of government assistance from the District of Columbia; provided, that the tenant or
retail establishment did not receive direct government assistance from the District;
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(8) Employees of nonprofit organizations that employ not more than 50 individuals and
qualify for taxation exemption pursuant to section 501(c)(3) of the Internal Revenue Code of
1954, approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(3);
(9) Medicaid provider agreements for direct care services to Medicaid recipients, provided,
that the direct care service is not provided through a home care agency, a community residence
facility, or a group home for mentally retarded persons as those terms are defined in section 2
of the Health -Care and Community Residence Facility, Hospice, and Home Care Licensure
Act of 1983, effective February 24, 1984 (D.C. Law 5-48; D.C. Official Code § 44-501); and
(10) Contracts or other agreements between managed care organizations and the Health Care
Safety Net Administration or the Medicaid Assistance Administration to provide health
services.
Section 13.11.9 The Mayor may exempt a contractor from the requirements of the
Living Wage Act of 2006, subject to the approval of Council, in accordance with the provisions
of Section 109 of the Living Wage Act of 2006.
Section 13.12 SPECIAL PROVISIONS RELATED TO THE COVID -19
EMERGENCY
Section 13.12.1 The Contractor is required to comply with Mayor’s Order 2021 -099,
COVID-19 Vaccination Certification Requirement for District Government
Employees, Contractors, Interns, and Grantees, dated August 10, 2021, and all
substantially similar vaccine requirements, including any modifications to this Order,
unless and until they are rescinded or superseded. At the request of the District
government, Contractors may be asked to provide certification of compliance with this
requirement and/or documents and records in support of this certification.
Section 13.12.2 The Contractor is required to comply with City Administrator’s Order
2021-4, Resumption of Requirement for All Persons to Wear a Mask Inside District
Government Buildings and While on Duty as a Dis trict Government Employee or
Contractor, dated July 30, 2021, and all substantially similar mask requirements
including any modifications to this Order, unless and until they are rescinded or
superseded.
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Article 14 - LIQUIDATED DAMAGES
Section 14.1 Delay in Submission of Deliverables.
Subject to the terms set forth in Sections 3.1.2 and 14.1, if the Design -Builder fails to
provide any of the deliverables set forth in Exhibit C, the Design -Builder shall pay to the
Department liquidated damages in the amount set forth in the Project Information Section of
this Agreement for each such deliverable that is not timely submitted.
Section 14.2 Delay in Substantial Completion.
If the Design -Builder fails to achieve Substantial Completion of the Project by the
Substantial Completion Date, the Parties acknowledge and agree that the actual damage to the
Department for the delay will be impossible to determine, and in lieu thereof, the Design -
Builder shall pay to the Department, as fixed, agreed and liquidated del ay 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 res ult 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 De sign-Builder achieves Substantial
Completion of the Project prior to the Substantial Completion Date, the Design -Builder shall
maintain the completed Project, at its own expense, until such time that the Department agrees
to occupy and use the Project for its intended use.
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Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1 Ownership and Use of Project Documents . The Drawings,
Specifications and other Project Documents prepared by the Design-Builder’s Architect
and copies thereof furnished to the Design -Builder, are for use solely with respect to
this Project. They are not to be used by the Design -Builder, Subcontractors, Sub -
subcontractors or suppliers on other projects, or for additions to this Project outside the
scope of the Work, without the specific written consent of the Department, and the
Design-Builder’s Architect. The referenced Drawing, Specifications and other Project
Documents shall become the property of the Department. The District will be the s ole
owner of all project drawings, specification and other Project Documents and the
Design-Builder shall provide the District with a complete set of “as-built” within sixty
(60) days of final completion.
Section 15.2 Assignment.
The Department and Design -Builder respectively bind themselves, their partners, members,
joint venturers, constituent entities, successors, assigns and legal representative to the other
party hereto and to partners, members, joint venturers, constituent entities, successors, assigns
and legal representatives of such other party in respect to covenants, agreements and
obligations contained in the Agreement. Neither party to the Agreement shall assign the
Agreement or its rights and obligations under the Agreement, without written consent of th e
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 th e Agreement, except for non -domestic
material listed in the Agreement.
“Components” as used in this Section, means those articles, materials and supplies
incorporated directly into the end products.
“Domestic end product”, as used in this section, means, ( 1) an unmanufactured end
product mined or produced in the United States, or (2) an end product manufactured in
the United States, if the cost of its components mined, produced, or manufactured in
the United States, exceeds 50 percent of the cost of all its components.
Components of foreign origin of the same class or kind as the products shall be treated
as domestic. Scrap generated, collected, and prepared for processing in the Unites States
is considered domestic.
“End Products”, as used in this Section, means those articles, materials, and supplies to
be acquired for public use under this Contract.
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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
Unites 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 wo rk. 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 St ates 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 a 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 a 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 on-
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. §§ 276a-276a-7) Exhibit G1 and Title 29
Code of Federal Regulations (“CFR’) parts 5.5 Exhibit G2. The wage rates applicable to this
Project are attached as Exhibit G . The Design -Builder further agrees that it and all of its
Subcontractors shall comply with the regulations implementing the Davis-Bacon Act and such
regulations are hereby incorporated by reference. At such time as the Design -Builder is
preparing its GMP, the Design-Builder shall include the current Davis-Bacon wage rates in its
GMP.
Section 15.5 The Quick Payment Clause
Section 15.5.1 Interest Penalties to Contractors
Section 15.5.1.1 The District will pay interest penalties on amounts due to the
Design-Builder under the Quick Payment Act, D.C. Official Code §2-221.01 et seq., as
amended, for the period beginning on the day after the required payment date and ending on
the date on which payment of the amount is made. Interest shall be calculated at the rate of
1.5% per month. No interest penalty shall be paid if payment for the completed delivery of the
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item of property or service is made on or before the required payment date. The requ ired
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, ex cluding legal holidays, after the date of delivery
of a perishable agricultural commodity; or
d. 30 calendar days, excluding legal holidays, after receipt of a proper invoice for the
amount of the payment due, if a specific date on which payment is due is not established by
contract;
Section 15.5.1.2 Any amount of an interest penalty which remains unpaid at the end of
any 30-day period shall be added to the principal amount of the debt and thereafter interest
penalties shall accrue on the added amount.
Section 15.5.1.3 No interest penalty shall be due to the Design -Builder if payment for
the completed delivery of goods or services is made on or after:
a.3rd day after the required payment date for meat or a meat food product;
b.5th day after the required payment date for an agricultural commodity; or
c.15th day after any other required payment date in the case of any other item.
Section 15.5.2 Payments to Subcontractors
Section 15.5.2.1 The Design-Builder must take one of the following actions within
seven (7) days of receipt of any amount paid to the Design -Builder by the District for work
performed by any subcontractor under this contract:
a. Pay the subcontractor for the proportionate share of the total payment received
from the District that i s attributable to the subcontractor for work performed
under the Contract; or
b. Notify the Contracting Officer and the subcontractor, in writing, of the Design-
Builder’s intention to withhold all or part of the subcontractor’s payment and
state the reason for the nonpayment.
Section 15.5.2.2 The Design-Builder must pay any subcontractor or supplier interest
penalties on amounts due to the subcontractor or supplier beginning on the day after the
payment is due and ending on the date on which the payment is ma de. Interest shall be
calculated at the rate of 1.5% per month. No interest penalty shall be paid on the following if
payment for the completed delivery of the item of property or service is made on or before:
a. The 3rd day after the required payment date for meat or a meat product;
b. The 5th day after the required payment date for an agricultural commodity; or
c. The 15th day after the required payment date for any other item.
Section 15.5.2.3 Any amount of an interest penalty which 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.
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Section 15.5.2.4 A dispute between the Design -Builder and subcontractor re lating to
the amounts or entitlement of a subcontractor to a payment or a late payment interest penalty
under the Quick Payment Act does not constitute a dispute to which the District of Columbia
is a party. The District may not be interpleaded in any judi cial 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 sub contractor to include in its contract with any lower -tier
subcontractor or supplier the payment and interest clauses required under paragraphs (1) and
(2) of D.C. Official Code §2-221.02(d).
Section 15.5.4 Requirements for Change Order Payments
Section 15.5.4.1 The Department and the Design-Builder are prohibited from requiring
the a Prime Contractor or a subcontractor to undertake any work that is determined to be beyond
the original scope of the Prime Contractor's or a subcontractor's contract or subcontract,
including work under a District -issued change order, when the additional work increases the
contract price beyond the not-to-exceed price or negotiated maximum price of the underlying
contract, unless the Contracting Officer:
a. Agrees with t he Prime Contractor and, if applicable, the subcontractor on a price
for the additional work;
b. Obtains a certification from the Chief Financial Officer that there are sufficient
funds to compensate the Prime Contractor and, if applicable, the subcontractor for
the additional work;
c. Has made a written, binding commitment with the Prime Contractor to pay for the
additional work within 30 days after the Prime Contractor submits a proper invoice
for the additional work to the CO; and
d. Gives written notice of the funding certification from the Chief Financial Officer to
the Prime Contractor.
Section 15.5.4.2 The Design-Builder is required to include in its subcontracts a clause
that requires the Prime Contractor to:
a. Within 5 business days of receipt of the notice required under subparagraph (A)(iv)
of this paragraph, provide the subcontractor with notice of the approved amount to
be paid to the subcontractor based on the portion of the additional Work to be
completed by the subcontractor;
b. Pay the subcontractor any undisputed amount to which the subcontractor is entitled
for any additional work within 10 days of receipt of payment for the additional
Work from the District; and
c. If the Prime Contractor withholds payment from a subcontractor, notify the
subcontractor in writing and state the reason why payment is being withheld and
provide a copy of the notice to the CO.
Section 15.5.4.3 The Department, Design -Builder, Design-Builder Architects, or a
subcontractor are prohibited from declaring another party to the contract to be in default or
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assessing, claiming, or pursuing damages for delays in the completion of the construction due
to the inability of the parties to agree on a price for the additional work.
Section 15.5.4.4 Authorized Changes By The Contracting Officer
a. The CO is the only person authorized to approve changes in any of the requirements of
this Contract.
b. The Design-Builder shall not comply with any order, directive or request that changes
or modifies the requirements of this Contract, unless issued in writing and signed by
the CO.
c. In the event the Design-Builder effects any change at the instruction or request of any
person other than the CO, the change will be conside red to have been made without
authority and no adjustment will be made in the Contract price to cover any cost
increase incurred as a result thereof.
Section 15.6 Contract Work Hours and Safety Standards Act Provision.
The Design -Builder agrees that the applicable work performed under this Agreement
shall be subject to the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-
333).
Section 15.7 False Claims Act. Design-Builder shall be governed by all laws
and regulations prohibiting false or fraudulent statements and claims made to DC
government, including the prescriptions set forth in District of Columbia Code Official
Code §22-2514 and §§2-381.01 et seq. In the event that it is discovered that the Design-
Builder has made a false, fraudulent or unsupported statement or claim to the Department,
the Department may terminate this Agreement without liability.
Section 15.8 Interpretation of Contract and Order of P recedence. 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
specific identified exceptions, to require the Design-Builder to assume entire responsibility
for construction of the Project. If there is any inconsistency among the Project documents
comprising the Agreement, the order of precedence among them is as follows, with the first
listed Project document having the highest priority:
1. This Agreement and its Modifications, Change Orders, Change Directives and any
Exhibits thereto;
2. The Department’s Standard Contract Provisions ( Construction Contracts and
Architectural/Engineering Services Contracts) , as amended, and any missing term in
this Agreement shall be addressed in accordance with the Standard Contract Provisions;
and
3. The Construction Documents released or approved by the Department.
Section 15.9 Independent Contractor. The Design-Builder and the Design-
Builder’s employees: (1) shall perform the services specified herein as independent
contractors, not as employees or agent of the District, or joint venture or partner with
the District; (2) shall be responsible for their own management and administration of
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the work required and bear sole responsibility for complying with any and all technical,
schedule, financial requirements or constraints attendant to the performance of this
Agreement; (3) shall be free from supervision or control by any government employee
with respect to the manner or method of performance of the service specified; but (4)
shall, pursuant to the government’s right and obligation to inspect, accept or reject
work, comply with such general directio n of the CO, or the duly authorized
representative of the CO as is necessary to ensure accomplishment of the Agreement
objectives. The Design-Builder shall have exclusive authority to manage, direct, and
control the work, and shall be responsible for all m eans, methods, techniques,
sequences, and procedures, as well as for Project safety.
Section 15.10 No Third -Party Beneficiary Rights. Nothing in this
Agreement shall be construed as creating third-party beneficiary rights in any person or
entity, except as otherwise expressly provided in this Agreement.
Section 15.11 Media Releases. Neither the Design -Builder, its employees,
agents or Subcontractors or material suppliers shall make any press release or similar
media release related to the Project unless such press release have been discussed with
the Department prior to its issuance.
Section 15.12 Construction. This Agreement shall be construed fairly as to
all Parties and not in favor of or against any party, regardless of which party prepared
the Agreement.
Section 15.13 Notices. All notices or communications required or permitt ed
under the Agreement shall be in writing and shall be hand delivered or sent by telecopier
or by recognized overnight carrier to the intended recipient at the address stated below,
or to such other address as the recipient may have designated in writing. Any such
notice or communication shall be deemed delivered as follows: if hand delivered, on
the day so delivered, if sent by telecopier, on confirmation of successful transmission,
and if sent by recognized overnight carrier, the next business day.
If to the Department: If to the Design-Builder:
George Lewis,
Associate Director
and Chief Procurement Officer
Department of General Services
2000 14th Street, NW, 4th Floor
Washington, DC 20009
This Section shall be read as imposing minimum requirements for distribution of
required contractual notices, and not as displacing distribution requirements with
respect to design documents, construction submittals, periodic reports, and other
Project documents.
Section 15.14 Limitations. The Design -Builder agrees that any statute of
limitations applicable to any claim or suit by the Department arising from this
Agreement or its breach shall be controlled by applicable District of Columbia law.
Joseph Khoury
Executive VP
MCN Build, Inc.
1214 28th Street NW,
Washington, DC 20007
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Section 15.15 Survival. All agreements warranties, and representations of the
Design-Builder contained in the Agreement or in any certificate or Project document
furnished pursuant to the Agreement shall survive termination or expiration of the
Agreement.
Section 15.16 No Waiver. If the Department waives any power, right, or
remedy arising from the Agreement or any applicable law, the waiver shall not be
deemed to be a waiver of the power, right, or remedy on the later recurrence of any
similar events. No act, delay, or course of conduct by the Department shall be deemed
to constitute the Department's waiver, which may be effected only by an express written
waiver signed by the Department.
Section 15.17 Remedies Cumulative. Unless specifically provided to the
contrary in the Agreement, all remedies set forth in the Agreement are cumulative and
not exclusive of any other remedy the Department may have, including, without
limitation, at law or in equity. The Department's rights and remedies will be exercised
at its sole discretion, and sh all not be regarded as conferring any obligation on the
Department to exercise those rights or remedies for the benefit of the Design -Builder
or any other person or entity.
Section 15.18 Headings/Captions. The headings or captions used in this
Agreement or its table of contents are for convenience only and shall not be used in
interpreting the Agreement.
Section 15.19 Entire Agreement; Modification. The Agreement supersedes
all contemporaneous or prior negotiations, representations, course of dealing, o r agreements,
either written or oral. No modifications to the Agreement shall be effective against the
Department unless made in writing signed by both the Department and the Design -Builder,
unless otherwise expressly provided to the contrary in the Agree ment. Notwithstanding the
foregoing, nothing herein shall be construed to limit the Department’s ability to unilaterally
modify the Agreement.
Section 15.20 Severability. In the event any one or more of the provisions contained
in this Agreement shall f or any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
Agreement, and in lieu of each such invalid, illegal or unenforceable provision, ther e 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), ar e 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 ch arges under this Agreement shall not arise or obtain in
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advance of the lawful availability of appropriated funds for the applicable fiscal year as
approved by Congress. IN ACCORDANCE WITH § 446 OF THE HOME RULE ACT,
D.C. CODE § 1-204.46, NO DISTRICT OF COLUMBIA OFFICIAL IS AUTHORIZED
TO OBLIGATE OR EXPEND ANY AMOUNT UNDER THE AGREEMENT OR
CONTRACT DOCUMENTS UNLESS SUCH AMOUNT HAS BEEN APPROVED, IS
LAWFULLY AVAILABLE AND APPROPRIATED BY ACT OF CONGRESS.
Section 15.21.1 The Department agrees to exercise all lawful authority available to it
to satisfy the financial obligations of the Department that may arise under this Agreement.
During the term of this Agreement, the Mayor of the District of Columbia or other appropriate
official shall, for each fiscal period, include in the budget application submitted to the Council
of the District of Columbia the amount necessary to fund the Department’s known potential
financial obligations under this Agreement for such fiscal period. In the event that a request for
such appropriations is excluded from the budget approved by the Council and submitted to
Congress by the President for the applicable fiscal year or if no appropriation is made by
Congress to pay any amounts due under this Agreement for any period after the fiscal year for
which appropriations have been made, and in the event appropriated funds for such purposes
are not otherwise lawfully available, the Department will not be liable to make any payment
under this Agreement upon the expiration of any then -existing appropriation, the Department
shall promptly notify the Contractor and this Agreement shall immediately terminate upon the
expiration of any then-existing appropriation.
Section 15.21.2 Notwithstanding the foregoing, no officer, employee, director, member
or other natural person or agent of the District or Department shall have any personal liability
in connection with the breach of the provisions of this Section or in the event of non -payment
by the Department under this Agreement.
Section 15.21.3 This Agreement shall not constitute an indebtedness of the District
and/or the Department nor shall it constitute an obligation for which the Department is
obligated to levy or pledge any form of taxation or for which the District has levied or pledged
any form of taxation. No District of Columbia Official or employee is authorized to obligate
or expend any amount under this Agreement unless such amount has been appropriated by Act
of Congress and is lawfully available.
Section 15.22 Time. Time, if stated in a number of days, will be calendar days
and thus include Saturdays, Sundays, and holidays, unless otherwise stated herein.
Section 15.23 Americans With Disabilities Act of 1990 (“ADA”). During the
performance of this Contract, the Design -Builder and any of its Subcontractors shall comply
with the ADA. The ADA makes it unlawful to discriminate in employment against a qualified
individual with a disability. See 42 U.S.C. §12101 et seq.
Section 15.24 Contracts in Excess of One Million Dollars . Any contract in excess of
$l,000,000 shall not be binding or give rise to any claim or demand against the District until
approved by the Council of the District of Columbia and signed by the Contracting Officer.
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Section 15.25 Gratuities Not to Benefit Provisions. If it is found, after notice and
hearing, by the Department that gratuities (in the form of entertainment, gifts, payment, offers
of employment or otherwise) were offered or given by the De sign-Builder, or any agent or
representative of the Design-Builder, to any official, employee or agent of the Department or
the District with a view toward securing the Agreement or any other contract or securing
favorable treatment with respect to the awa rding 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 b y the Department in which the Mayor or City
Council Member or employee of the District shall be personally interested shall be void and
no payments shall be made on any such contracts by the Department; but this provision shall
not be construed or extend t o the agreement if the share of or benefit to the member of, or
delegate to Congress, Mayor or City Council Member, or employee of the District is de
minimis.
Section 15.27 Ethical Standards for the Department's Employees And Former
Employees. The Depart ment expects the Design -Builder to observe the highest ethical
standards and to comply with all applicable law, rules, and regulations governing ethical
conduct or conflicts of interest. Neither the Design-Builder, nor any person associated with the
Design-Builder, shall provide (or seek reimbursement for) any gift, gratuity, favor,
entertainment, loan or other thing of value to any employee of the District or the Department
not in conformity with applicable law, rules or regulations. The Design -Builder sha ll not
engage the services of any person or persons in the employment of the Department or the
District for any work required, contemplated or performed under the Agreement. The Design-
Builder may not assign to any former employee or District employee or agent who has joined
the Design-Builder’s firm any matter on which the former employee, while employed by the
Department, had material or substantial involvement in the matter. The Design -Builder may
request a waiver to permit the assignment of such matters to former personnel on a case -by-
case basis. The Design -Builder shall include in every subcontract a provision substantially
similar to this section so that such provisions shall be binding upon each Design -Builder or
vendor.
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Section 15.28 Non-Discrimination in Employment Provisions.
Section 15.28.1 District of Columbia Human Rights Act
a. The Design-Builder shall not discriminate in any manner against any employee or
applicant for employment that would constitute a violation of the District of Columbia Human
Rights Act, effective December 13, 1977, as amended (D.C. Law 2 -38; D.C. Official Code §
2-1401.01 et seq.) (“Act”, as used in this clause). The Design -Builder shall include a similar
clause in all subcontracts, except subcontracts for standard commer cial supplies or raw
materials. In addition, the Design-Builder agrees, and any subcontractor shall agree, to post in
conspicuous places, available to employees and applicants for employment, a notice setting
forth the provisions of this non-discrimination clause as provided in section 251 of the Act.
b. Pursuant to Mayor’s Order 85 -85, (6/10/85), Mayor’s Order 2002 -175 (10/23/02),
Mayor’s Order 2011-155 (9/9/11) and the rules of the Office of Human Rights, Chapter 11 of
Title 4 of the D.C. Municipal Regulations, the following clauses apply to the Contract:
1. The Design-Builder shall not discriminate against any employee or applicant
for employment because of race, color, religion, national origin, sex, age, marital status,
personal appearance, sexual orientation, family responsibilities, matriculation, poli tical
affiliation, or physical handicap.
2. The Design-Builder agrees to take affirmative action to ensure that applicants
are employed, and that employees are treated during employment, without regard to their race,
color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation,
family responsibilities, matriculation, political affiliation, or physical handicap. The
affirmative action shall include, but not be limited to, the following:
i. Employment, upgrading, or transfer;
ii. Recruitment or recruitment advertising;
iii. Demotion, layoff, or termination;
iv. Rates of pay, or other forms of compensation; and
v. Selection for training and apprenticeship.
3. Unless otherwise permitted by law and directed by the Department, the Design-
Builder a grees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the Department setting forth the provisions paragraphs
1 and 2 of Section 15. 28.1(b) of this Agreement, concerning non -discrimination and
affirmative action.
4. The Design-Builder shall, in all solicitations or advertisements for employees
placed by or on behalf of the Design -Builder, state that all qualified applicants will receive
consideration for employment pursuant to the non -discrimination requirements set forth in
Section 15.28.3.
5. The Design -Builder agrees to send to each labor union or representative of
workers with which it has a collective bargaining agreement, or other contract or
understanding, a notice to be provided by the Department, advising each labor union or
workers' representative of the Design-Builder’s commitments under this Section 15.28.1, and
shall post copies of the notice in conspicuous places available to employees and applicants for
employment.
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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 Subcontractor 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 enforcing these provisions, including sanctions for
noncompliance; provided, however, that in the event the Design-Builder becomes involved in,
or is threatened with, litigation with a Subcontractor or vendor as a result of such direction by
the Department, the Design -Builder may request the District to enter into such litigation to
protect the interest of the District.
Section 15.28.2 Pregnant Workers Fairness
a. The Design -Builder shall comply with the Protecting Pregnant Workers
Fairness Act of 2016, D.C. Official Code § 32-1231.01 et seq. (PPWF Act).
b. The Design-Builder shall not:
1. Refuse to make reasonable accommodations to the known limitations related to
pregnancy, childbirth, related medical conditions, or breastfeeding for an employee, unless the
Design-Builder can demonstrate that the accommodation would impose an undue hardship;
2. Take an adverse action against an employee who requests or uses a reasonable
accommodation in regard to the employee's conditions or privileges of employment, including
failing to reinstate the employee when the need for reasonable accommodations ceases to the
employee's original job or to an equivalent position with equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employee, or a job applicant, if the denial
is based on the need of the emp loyer to make reasonable accommodations to the known
limitations related to pregnancy, childbirth, related medical conditions, or breastfeeding;
4. Require an employee affected by pregnancy, childbirth, related medical
conditions, or breastfeeding to accept a n accommodation that the employee chooses not to
accept if the employee does not have a known limitation related to pregnancy, childbirth,
related medical conditions, or breastfeeding or the accommodation is not necessary for the
employee to perform her duties;
5. Require an employee to take leave if a reasonable accommodation can be
provided; or
6. Take adverse action against an employee who has been absent from work as a
result of a pregnancy-related condition, including a pre-birth complication.
c. The Design-Builder shall post and maintain in a conspicuous place a notice of rights
in both English and Spanish and provide written notice of an employee's right to a needed
reasonable accommodation related to pregnancy, childbirth, related medical conditions, or
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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 Section 15.29 of this Contract, in accordance with Title 27 DCMR Section
3250, the Design-Builder may assign due or to become due as a result of the performance of
this Design-Builder to a bank, trust company, or other financing institution funds.
b. Any assignment shall cover all unpaid amounts payable under this Agreement
and shall not be made to more than one party.
c. Notwithstanding an assignment of Contract payments, the Design -Builder, not the
assignee, is required to prepare invoices. Where such an assignment has been made, the
original copy of the invoice must refer to the assignment and must show that payment of the
invoice is to be made directly to the assignee as follows:
“Pursuant to the instrument of assignment dated ___________, make payment of this
invoice to (name and address of assignee).”
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Section 15.30 FREEDOM OF INFORMATION ACT (“FOIA”)
The District of Columbia Freedom of Information Act, at D.C. Official Code § 2-532 (a-
3), requires the District to make available for inspection and copying any record produced or
collected pursuant to a District contract with a private contractor to perform a public function,
to the same extent as if the record were maintained by the agency on whose behalf the contract
is made. If the Design-Builder receives a request for such information, the Design -Builder
shall immediately send the request to the P rogram Manager designated in Section 2.6 of this
Agreement who will provide the request to the FOIA Officer for the agency with programmatic
responsibility in accordance with the D.C. Freedom of Information Act. If the agency with
programmatic responsibility receives a request for a record maintained by the Design-Builder
pursuant to the Contract, the PM will forward a copy to the Design -Builder. In either event,
the Design-Builder is required by law to provide all responsive records to the PM within the
timeframe designated by the PM. The FOIA Officer for the agency with programmatic
responsibility will determine the releasability of the records. The District will reimburse the
Design-Builder for the costs of searching and copying the records in accordance with D.C.
Official Code §2-532 and Chapter 4 of Title 1 of the D.C. Municipal Regulations.
Section 15.31 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.
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ARTICLE 16- TERMINATION OR SUSPENSION
Section 16.1 All terminations or suspensions arising out of or under this Agreement
shall be in accordance with the terms of the Standard Contract Provisions (Construction
Contracts and Architectural/Engineering Services Contracts).
Section 16.2 Failure to Agree Upon GMP . The Department shall have the right to
terminate this Agreement in the event that the Department and the Design -Builder are unable
to agree upon a GMP for the Project and the Department shall have the right, but not the
obligation, to assume any of the Design -Builder’s trade subcontracts upon such terms and
conditions as requested by the Department. The Department’s decision to terminate under this
Section shall be made in the Department’s sole and absolute judgment and shall not be subject
to review by any reviewing body, including, but not limited to, arbitrators appointed under this
Agreement or any court of competent jurisdiction.
Section 16.3 Termination for Default. The Department may terminate the Agreement
for default if the Design -Builder fails to perform any of its duties or obligations under the
Agreement. In particular, but without limitation, the Department may terminate the Agreement
if:
1. The Design-Builder fails to perform the Work diligently, in accordance with the
Project Schedule or to make such progress in the Work as the Department reasonably believes
is necessary to complete the Project within the time required by the Agreement; or
2. The Design -Builder fails to perform the Work in a good and workmanlike
manner or to correct defects in the Work promptly upon notice by the Department; or
3. The Department reasonably determines that the Design-Builder has abandoned
the Work, or has failed to pay laborers, mechanics, materialmen, Subcontractors or suppliers
when payment is due; or
4. The Design-Builder becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary petition under any chapter of the Bankruptcy Code or has an
involuntary petition filed against it under any chap ter of the Bankruptcy Code, or the Design-
Builder has a receiver appointed, or files for dissolution or otherwise is dissolved; or
5. The Design -Builder fails to pay its debts in a timely manner or becomes
insolvent, the Department reasonably determines th at 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.
Page 91 of 121
Section 16.3.2 If the Department terminates the Agreement for default, the
Department will have the right to take over the Work, to accept assignment of some or all
Subcontracts or agreements with material suppliers, to take possession of the Project, to take
and use all tools, equipment and supplies then being used in connection with the Work, and to
finish the Project by whatever method it deems expedient, including accepting assignment of
all outstanding Subcontracts and Supply Agreements.
Section 16 .4 Termination for Convenience . The Department may terminate the
Contract in whole or specified part, for its convenience, for any reason . The notice of
termination shall state the effective date of termination, the extent of the termination, and any
specific instructions. The termination for convenience that arises out of or under this
Agreement shall be in accordance with the terms of the Stand ard 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 s hall remain
responsible for defects or non -conformities in all Work performed to the date of the
termination.
Page 92 of 121
Article 17 – OTHER CONDITIONS AND SERVICES
This Agreement and the rights and obligations of the Department and Design -Builder
herein are subject to the approval of the Council for the District of Columbia.
Page 93 of 121
Article 18 – CHANGES IN THE WORK
Section 18.1 Changes Authorized. In accordance with the Standard Contract
Provisions (Construction Contracts, and 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 addit ions, deletions or modifications. Any such
change must be conveyed by the Department to the Design -Builder via written Change
Directive or Change Order.
Section 18.2 Executed Change Directive/Change Order Required. Only a written
Change Directive or Cha nge Order, executed by the Department ’s Contracting Officer , may
make changes to the Agreement. In particular, but without limitation, a written Change
Directive or Change Order executed by the Department’s Contracting Officer is the only means
by which changes may be made to the Substantial or Final Completion Dates, the Design-Build
Fee, or the Guaranteed Maximum Price.
Section 18.3 Department-Initiated Changes
1. If the Department wishes to make a change in the Work or to accelerate the
Work, it will e xecute 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 which the Design-Builder believes that
Substantial or Final Completion Dates and/or the Guaranteed Maximum Price
should be adjusted to take the Change Order or Change Directive into account.
2. Within ten (10) days of receiving a Change Directive, the Design-Builder shall
provide the Department with a written statement of all changes in the
Agreement, including, without limitation, any changes to the Substantial or
Final Completion Dates or the Guaranteed Maximum Price to which it believes
it is entitled as a result of the Change Directive. If additional time is sought, a
schedule analysis supporting the requested extension should be included. The
schedule analysis should include a written narrative explanation. If a change in
the Guaranteed Maximum Price is sought (or if the Department has requested a
deduct change), the statement should include a breakdown, by line item, of the
estimated cost changes attributable to the proposed change. The Department
may request, and the Design -Builder shall provide, further cost breakdowns,
clarifications, project documentation or back-up if the Department reasonably
believes such additional information is needed to understand and evaluate the
request. The additional information required may include cost and pricing data
in accordance with the Department’s regulations. Any requested adjustment to
the Guaranteed Maximum Price shall be limited to increased Cost of the Work
due to the Change Directive. The Design-Builder is not entitled to any markup
on any kind of Change Orders exc ept as authorized in Section 18.8, and if so
authorized, any mark-up shall be in accordance with Section 18.11.
Page 94 of 121
3. If the Department has not yet directed the Design -Builder to proceed with the
change described by a Change Directive, the Department may rescind it. If the
Department wishes to proceed, or has already directed the Design -Builder to
proceed, the Design-Builder shall immediately proceed with the changed Work
and, the Department and the Design -Builder shall use their good faith best
efforts to reach an agreement upon the modifications to the Substantial or Final
Completion Dates, and/or the Guaranteed Maximum Price that are justified by
the Change Directive. If the Department and the Design -Builder reach
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 b inding 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
Guaranteed Maximum Price, and/or the Preconstruction or Design-Build Fee as
the Department has judged to be appropriate.
Section 18.4 Notice of Change Event. The Design -Builder must give the
Department written notice of an y 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 cha nges in the Agreement to which the Design -Builder believes it is entitled.
Such notice is an express condition precedent to any claim or request for adjustment to the
Substantial or Final Completion Dates, or the Guaranteed Maximum Price arising from the
Change Event and, if the notice is not given within the required time, the Design -Builder will
have waived the right to any adjustment to the Substantial or Final Completion Dates, or the
Guaranteed Maximum Price arising from the Change Event.
Section 18.5 Detailed Change Request. Within twenty (20) days after giving notice
of a Change Event, the Design -Builder shall submit a written Change Request to the
Department describing, in reasonable detail, all adjustments it seeks to the Substantial or Final
Completion Dates or the Guaranteed Maximum Price as a result of the Change Event. The
Change Request shall include the same information as described in Section 18.3 with respect
to any Agreement changes the Design-Builder seeks due to the Change Event, and the amount
of any requested adjustment to the Guaranteed Maximum Price shall be limited in accordance
with that Section 18.3.
Section 18.6 Changes to GMP. Subject to the condition precedent that the Design -
Builder have complied with the notice and documentation provisions of this Article, and
subject to the limitations stated in this Agreement, the Design -Builder is entitled to an
adjustment to the Guaranteed Maximum Price in the following cases:
1. If the Department issues a Change Directive or Change Order that directs the
Design-Builder to proceed with work which is beyond the scope of Work
included within this Agreement; or
Page 95 of 121
2. The Design-Builder encounters differing site conditions or Hazardous Materials
not identified in the Preconstruction Phase.
Section 18.7 Deductive Change Orders. The Department reserves the right to issue
deductive Change Orders (reducing the Guaranteed Maximum Price or modifying the
Substantial or Final Completion Dates to an earlier date) when changes are effected, by Change
Directive or otherwise, which will decrease the cost of completing the Work or the time within
which it can be completed.
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 Maximum Cost of General Conditions, 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 recreation center facility that is consistent with the Department’s
program of requirements and incorporates sustainable design initiatives. Without limiting the
generality of the foregoing, it is understood and agreed that the Design -Builder shall not be
entitled to any additional fees or general conditions unless: (i) the Department makes additions
to the scope provided for in this Agreement that cause the GMP, either individually or in the
aggregate, to increase by more than ten percent (10%); or (ii) the Department makes additions
to the scope provided for herein which (other than for punchlist or warranty work) require the
Design-Builder’s services for the Project to extend beyond the Substantial Completion Date.
Section 18.9 Executed Change Orders or Contract Modifications are Final. The
Design-Builder agrees that any Change Order or Contract Modification executed by the
Department and Design-Builder constitutes its full and final adjustment for all costs, delays,
disruptions, inefficiencies, accelerations, schedule impacts, or other consequences arising from
the change modification in question, whether a Change Directive, or a Change Event, or from
any claimed cumulative effect of changes made to the date of the Change Order or Contract
Modification, and that no further adjustments in compensation or time shall be sought or made
with respect to the Change Directive or the Change Event giving rise to the Change Order or
Contract Modification. Although the Parties anticipate that most Change Orders or Contract
Modifications will not requ ire an adjustment to the Cost of General Conditions, if the Work
described in a Change Order or Contract Modification requires an increase or decrease in the
Maximum Cost of General Conditions (i.e. because such a Change requires additional field
staff or other equipment that would be classified as General Conditions Costs), the Change
Order or Contract Modification shall contain an increase to the Design -Build Fee adjusting
such amount. The cost of processing a Change Order or Contract Modification shall not be
considered an event that will require an increase in the Maximum Cost of General Conditions.
Section 18.10 Failure to Agree. If the Design-Builder claims entitlement to a change
in the Agreement, and the Department does not agree that any action or event has occurred to
justify any change in time or compensation, or if the Parties fail to agree upon the appropriate
amount of the adjustment in time or compensation, the Department will unilaterally make such
changes, if any, to the Agreement, as it determines are appropriate pursuant to the Agreement.
The Design -Builder shall proceed with the Work and the Department's directives, without
interruption or delay, and shall make a claim as provided in Article 18 herein. Failure to
proceed due to a dispute over a change request shall constitute a material breach of the Contract
and entitle the Department to all available remedies for such breach, including, without
limitation, termination for default.
Page 96 of 121
Section 18.11 Mark-Up on Trade Work.
The maximum mark up for Change Order work shall be as follows:
1.For Work performed by a Subcontractor with its own forces, the Subcontractor shall
be entitled to a mark-up of not more than five percent (5%) (Covering home office
overhead, the cost of insurance and bonds, field supervision, general conditions and
profit) on the Direct Costs of the Work. For Work that the Department permits the
Contractor to self-perform, the Contractor shall also be entitled to a mark-up of not
more than five percent (5%) of the Direct Cost of the Work. With regard to any such
Work that is self- performed by the Contractor, the markup contemplated in this Section
18.11.1 shall be the Contractor’s exclusive compensation and it shall not be entitled to
the markup contemplated in Section 18.11.3;
2.Intervening tier Subcontractors shall be entitled to a mark-up of two percent (2%)
(Covering home office overhead, the cost of insurance and bonds, field supervision,
general conditions and profit) on Work Performed by lower-tier Subcontractors;
3.To the extent permitted by Section 18.8, the Contractor shall be entitled to an increase
in its Construction Management Fee at a rate of 2% on work performed by
Subcontractors. Such markup shall cover the same cost elements that were included in
the Construction Management Fee;
4.In no event shall the maximum mark-up on the Direct Cost of the Work exceed five
percent (5%). Direct Cost of the Work shall mean labor, material and other costs
reasonably and necessarily incurred in the proper performance of the Work as approved
by the Department and shall include, but not be limited to: (Direct Cost of the Work
does not, however, include home office overhead, field supervision, general conditions
or profit of either the Subcontractor or the Contractor. No personnel above the level of
a working foreman shall be considered a Direct Cost of the Work).
Page 97 of 121
Article 19 – CLAIMS & DISPUTE RESOLUTION
All claims or disputes arising out of this Agreement s hall be governed by the terms of the
Standard Contract Provisions ( for Architectural and Engineering Services Contracts and
Construction Contracts).
Page 98 of 121
Article 20 - EXHIBITS
Exhibit A Program Requirements and Educational Specifications
Exhibit B Project Schedule
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 Regulation (CFR) Sections 5.5
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 GMP Basis Project Documents Submission Date
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 National BIM Requirements
Exhibit T DGS Project Turnover 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 Reform Act Self-Certification Form
IN WITNESS WHEREOF, the Parties have executed this Agreement ( DCAM-22-CS-RFP-
0018) through their duly authorized representatives and effective as of the last date written
below.
DEPARTMENT OF GENERAL SERVICES, MCN BUILD, INC.
an agency within the executive branch
of the Government of the District of Columbia
By: By:
Name: Name:
Title: Title:
Date: Date:
Peter Lyonga Ghogomu
Contracting Officer
6/13/2023