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MURIEL BOWSER
MAYOR
December 5, 2025
The Honorable Phil Mendelson
Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Pursuant to section 451 of the District of Columbia Home Rule Act (D.C. Official Code § 1 -
204.51) and section 202 of the Procurement Practices Reform Act of 2010 (D.C. Official Code §
2-352.02), enclosed for consideration and approval by the Council of the District of Columbia is
the proposed definitive contract No. DCAM -24-CS-RFP-0031 with Atmos Solution, Inc., in the
amount of $5,585,175.65 (including an existing letter contract amount of $987,740.00). The
substantial completion date for the project is May 22, 2026.
Under the proposed contract, Atmos Solution, Inc., will provide all required Construction
Management At-Risk Services for the Rosedale Pool Replacement.
My administration is available to discuss any questions you may have regarding the proposed
contract. To facilitate a response to any questions you may have, please contact Delano Hunter,
Director, Department of General Services (“DGS”), or have your staff contact Xavier Beltran,
Interim Chief Procurement Officer, DGS, at (202) 340-6358.
I look forward to the Council’s favorable consideration of this contract.
Sincerely,
Muriel Bowser
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GOVERNMENT OF THE DISTRICT OF COLUMBIA
Department of General Services
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
(Letter Contract or Emergency Contract)
Proposed Agreement for Construction Management At-Risk Services for Rosedale Pool
Replacement
(A) Contract Number: DCAM-24-CS-RFP-0031
Proposed Contractor: Atmos Solutions, Inc.
Proposed Contractor’s Principals: Anthony Fernando
President
Letter Contract: $987,740.00
Total Proposed Contract Amount: $5,585,175.65
(Final Guaranteed Maximum Price (“GMP”))
Unit and Method of Compensation: Progress payments on a monthly basis
Term of Contract: From March 24, 2025 (date of execution of the Letter
Contract), through June 10, 2027 (Administrative
Term Date) with a Substantial Completion Date of
May 22, 2026, and a Final Completion Date of June
25, 2026.
Type of Contract: Cost Plus Fixed Fee with a Guaranteed Maximum
Price (“GMP”)
Source Selection Method: Competitive Request for Proposals (“RFP”)
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(B) For a contract containing option periods, the contract amount for the base period and for each
option period. If the contract amount for one or more of the option periods differs from the
amount for the base period, provide an explanation of the reason for the difference:
Not applicable.
(C) The date on which the letter contract or emergency contract was executed:
A Letter C ontract with the Contractor was executed by the Department of General Services (the
“Department”) on March 24, 2025 (the “Letter Contract”).
(D) The number of times the letter contract or emergency contract has been extended:
The Letter Contract has been extended one time. Modification No. 02 to the Letter Contract, executed
on August 28, 2025, extended the term of the Letter Contract to December 30, 2025.
(E) The value of the goods and services provided to date under the letter contract or emergency
contract, including under each extension of the letter contract or emergency contract:
The total value of the services provided to date is $987,740.00, which represents the initial not -to-
exceed (“NTE”) amount established by the Letter Contract.
(F) 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 Contractor will be required to provide a full range of services required to selectively demolish
existing features as necessary and construct a new expansion facility to meet the Department’s
programmatic requirements.
The existing pool facility is located at 1701 Gales Street NE, Washington, DC 20002, and is
connected to Rosedale Recreation Center. The outdoor pool facility measures roughly 18,000 square
feet and includes a main pool, a lap pool, and an infant pool. The facility also features a large pool
deck with seating and shade structures.
The Project renovation will widen the existing lap pool by adding two additional lanes, expanding
the pool deck, and replacing the existing infant pool with an enclosed splash pad. The main pool
construction will include the removal of two existing slide structures and the installation of a new
beach entry with waterplay features, stair access, and a perimeter skimming system. The entire pool
equipment and system will be upgraded with a new pump plant, filters, chemical feed system,
backwash tank, and associated piping. The entire pool deck will be replaced, and new drains will be
included. The expansion of the pool deck area will require extending the existing retaining wall. The
pool deck will receive new fencing, shade structures, and furniture. Additionally, the non-functioning
deck showers will be replaced. The Project will include new plantings and removal of existing trees.
The proposed Contract will establish the GMP of $5,585,175.65, inclusive of the initial NTE amount
of $987,740.00 under the Letter Contract.
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As the proposed amount of the Contract exceeds $1 million, Council approval is required for this
contract action.
(G) The selection process, including the number of offerors, the evaluation criteria, and the
evaluation results, including price, technical or quality, and past performance components:
On October 17, 2024, the Department issued this Request for Proposals ( “RFP”) for offerors
interested in serving as the Construction Management At -Risk (“CMAR” or “Contractor”) for the
Rosedale Pool Replacement located at 1701 Gale Street NE, Washington, DC 20002. A Pre-Proposal
Conference and Site Visit were held on October 22, 2024. One (1) Addendum was issued:
Addendum No. 1, issued on November 13, 2024:
- Provided the sign-in sheet from the Pre-proposal conference and the site.
- Provided questions and answers about the RFP.
- Extended the proposal due date to November 21, 2024, at 2:00 P.M.
- Incorporated the drawings regarding existing conditions into the RFP.
- Incorporated the photos of previous attempted repairs into the RFP.
- Provided revised design of liquid chlorine and acid chemical system and incorporated it
to the RFP.
Proposal Submissions:
On the Proposals’ due date, November 21, 2024, the following five (5) firms (collectively, the
“Offerors” and each individually, an “Offeror”) submitted Proposals in a timely manner.
Technical Evaluations Process:
Each Offeror’s technical proposal was independently evaluated by a Technical Evaluation Panel
(“TEP” or “Panel”). A kick-off meeting was held and established a schedule for the evaluation of
proposals and discussed in detail the roles and responsibilities of the TEP. In addition, each TEP
member completed the required Disclosure Agreement and Confidentiality Agreement. Prior to
convening the evaluation meeting, each member of the Panel individually completed an evaluation
of the proposals.
Consensus Meeting:
After the Panel members had completed their individual evaluations of the proposals, the Panel met
on December 20, 2024, to develop the consensus technical score for each Offeror.
Contracting Officer’s Independent Evaluation:
The Department’s Contracting Officer carefully reviewed each of the proposals and independently
rated each Offeror. He further carefully reviewed the evaluation process followed by the Panel, their
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notes and scoresheets, and their final consensus technical evaluation and concluded that the Panel’s
technical evaluations of the proposed Offerors were proper and reasonable.
Certified Business Enterprise Preference Points:
In addition to the price and technical scoring, a certain number of points were available for each
Offeror based on its status as a Certified Business Enterprise (“CBE”) as determined by the
Department of Small and Local Business Development (“DSLBD”). The Contractor was certified
and received points accordingly.
The Contractor received 12 preference points or a 12 percent reduction in price.
Determination of a Fair and Reasonable Price:
When the total points for all three components (technical, price, and CBE preference) were combined,
the Contractor was the highest-ranked Offeror. The Contracting Officer examined the fee/price
proposal submitted by the Contractor and determined that the overall proposed fees/price submitted
by the Contractor is within the IGE and is fair and reasonable.
Contract Award:
On March 24, 2025, the Department awarded Letter Contract No. DCAM -24-CS-RFP-0031 to the
Contractor, as such award was determined to be most advantageous to the District.
(H) 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. I nclude 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.
(I) A description of any other contracts the proposed contractor is currently seeking or holds with
the District:
The Contractor is currently involved in the below District projects:
• Columbia Heights Education Campus & Noyes Elementary School Exterior Door
Replacements;
• Design-Build Services for the construction of the New Carver/Langston and Riggs
Road/South Dakota Avenue Triangle Parks;
• Cleveland Elementary School Playground Security Fence and Gate Replacement;
• Plummer Elementary School Cafeteria/Kitchen Renovation -Addition And Building
Upgrades;
• Emery Elementary School Elevator Installation;
• Oxon Run Fitness Center and Park;
• DC Stabilization and Sobering Center Renovation – Park Road;
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• Mckinley Technology High School Exterior Door Restoration And Replacement;
• Benning Road Raze and Abatement;
• Construction Management At-Risk Services for Rosedale Pool Replacement;
• Marie Reed Elementary School Soccer Field Replacement;
• Design-Build Services for Barry Farm Recreation Center HVAC Upgrades;
• Design-Build Services for Palisades Recreation Center Dog Park;
• Design-Build Services For The Homeland Security And Emergency Management Agency
(HSEMA) Parking Lot Reconfiguration At The Unified Communications Center (UCC);
• Key Elementary School, Noyes Elementary School , and Sousa Middle School Boilers
Replacement;
• Walter Pierce Upgrades Phase 2;
• Design-Build Services For Emery Elementary School HVAC Upgrades;
• Design-Build and Construction Services for Upgrading the Existing Historical Eastern
Market;
• Design-Build Services for KC Lewis Swing Space to Support Seaton Elementary School
Modernization;
• Design-Build Services for Pickleball Court Improvements – Multiple Locations;
• McKinley Technology High School Partial Roof Replacement;
• Tubman Elementary School - Former Banneker Elementary School - Thomas Elementary
School - Kenilworth Elementary School - Swing Upgrades;
• Davis Elementary School Child Development Center And Swing Space Upgrades;
• Construction Services for New Jersey Avenue and O Street Park Renovation;
• Construction Services for Roofing Replacements and Upgrades at Engine House 2; and
• Walter Pierce Park Phase 2 Portland Loo and Upgrades.
(J) The background and qualifications of the proposed c ontractor, 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 is a Certified Business Enterprise (“CBE”) firm located in Washington, DC, has been
in business since 2016, and was incorporated in 2018. The Contractor is a small business with
expertise in facility maintenance and construction services, including plumbing, painting,
maintenance services, community engagement, labor regulatory compliance , and environmental
expertise, and provides general construction services in the Washington, DC area. The Contractor has
performed satisfactorily based on their past performance records. The Contractor has been determined
responsible in accordance with 27 DCMR 4706.1.
(K) 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:
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The Contractor is a certified small business enterprise in accordance with the Act (CBE Number:
LSDRE48572102027). Notwithstanding the foregoing, the Contractor has certified that it will
subcontract a portion of the Contract amount to SBE/CBE’s that are certified by DSLBD, as follows,
as required by law:
Contract Dollar Value: $5,585,175.65
Total Contracting Effort by Contractor (100%): $486,995.99
Minimum Self-Performance Requirement
(35% of Total Contracting Effort): $170448.60
Actual Self-Performance
21% of total Contract Value: $1,172,886.89
Actual Self-Performance Percentage: 21% of total Contract Value (100% of the
Total Contracting Effort + some portion of
Construction)
Total Amount available for Subcontracting: $4,412,288.76
Minimum CBE Subcontracting Amount
(35% of Total Available for Sub-Contracting): $1,544,301.07
Actual Subcontracting Amount: $1,544,301.07
Subcontracting Plan Actual Dollar Value $1,270,637.35
Total Sub-Contracting Percentage 35%
(L) Performance standards and the expected outcome of the proposed contract:
The Contractor is required to provide any and all construction services required for the Project
necessary to substantially complete the Construction Management At-risk Services for Rosedale Pool
Replacement no later than May 2 2, 2026 (“Substantial Completion Date”) . The Contractor’s
performance will be monitored by DGS staff and DGS’s designated Program Manager. Additionally,
the Contractor must adhere to the terms and conditions of and the Standard Contract Provisions for
Construction Services.
(M) 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 March 24, 2025, provided an initial NTE amount
of $486,995.99. Modification No. 01 to the Letter Contract executed on August 13, 2025, provide d
for an early release in the amount of $500,744.01, which increased the NTE amount to $987,740.00
and represents the total expenditure of funds authorized to date.
(N) A certification that the proposed contract is within the appropriated budget authority for the
agency for the fiscal year and is consistent with the financial plan and budget adopted in
accordance with D.C. Official Code §§ 47-392.01 and 47-392.02:
The Office of the Chief Financial Officer has certified that the proposed Contract’s amount 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.
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(O) A certification that the contract is legally sufficient, including whether the proposed contractor
has any pending legal claims against the District:
The proposed Contract 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.
(P) A certification that the Citywide Clean Hands database indicates that the proposed contractor
is current with its District taxes . If the Citywide Clean Hands Database indicates that the
proposed contractor is not current with its District taxes, either: (1) a certification that the
contractor has worked out and is current with a payment schedule approved by the District; or
(2) a certification that the contractor will be current with its District taxes after the District
recovers any outstanding debt as provided under D.C. Official Code § 2-353.01(b):
The Citywide Clean Hands database indicates that the Contractor is in compliance with the
Government of the District of Columbia tax laws and regulations. The applicable Clean Hands
certification for the Contractor accompanies this Council Package.
(Q) 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.
(R) 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, Small, or Disadvantaged
Business Enterprise. The Contractor’s CBE certification number is LSDRE48572102027, with an
expiration date of October 15, 2027.
(S) Other aspects of the proposed contract that the Chief Procurement Officer considers
significant:
None.
(T) 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.
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(U) Any determination and findings issues relating to the contract’s formation, including any
determination and findings made under D.C. Official Code § 2-352.05 (privatization
contracts):
Not applicable.
(V) Where the contract, and any amendments or modifications, if executed, will be made
available online:
Contract award information is available on the Department’s website. A copy of the contract
documents will be made available on the Department’s website, upon approval.
(W) 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.
(X) (1) A certification that the proposed contractor has been determined not to violate 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.
1101 4th Street, SW
Washington, DC 20024
Date of Notice: October 30, 2025 L0015199738Notice Number:
FEIN: **-***1304
Case ID: 18770115
Government of the District of Columbia
Office of the Chief Financial Officer
Office of Tax and Revenue
ATMOS SOLUTIONS INC
6856 EASTERN AVE NW
WASHINGTON DC 20012-2165
Branch Chief, Collection and Enforcement Administration
Authorized By Melinda Jenkins
To validate this certificate, please visit MyTax.DC.gov. On the MyTax DC homepage, click the
“Validate a Certificate of Clean Hands” hyperlink under the Clean Hands section.
CERTIFICATE OF CLEAN HANDS
As reported in the Clean Hands system, the above referenced individual/entity has no outstanding
liability with the District of Columbia Office of Tax and Revenue or the Department of Employment
Services. As of the date above, the individual/entity has complied with DC Code § 47-2862, therefore
this Certificate of Clean Hands is issued.
TITLE 47. TAXATION, LICENSING, PERMITS, ASSESSMENTS, AND FEES
CHAPTER 28 GENERAL LICENSE
SUBCHAPTER II. CLEAN HANDS BEFORE RECEIVING A LICENSE OR PERMIT
D.C. CODE § 47-2862 (2006)
§ 47-2862 PROHIBITION AGAINST ISSUANCE OF LICENSE OR PERMIT
1101 4th Street SW, Suite W270, Washington, DC 20024/Phone: (202) 724-5045/MyTax.DC.gov
COPY
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Memorandum
To: Delano Hunter
Director, Department of General Services
From: Antoinette Hudson Beckham
Agency Fiscal Officer
Reference: Proposed Contract No. ( DCAM-24-CS-RFP-0031) Construction Management At -
Risk (“CMAR”) Services for Rosedale Pool Replacement
Date: October 28, 2025
Subject: Fiscal Sufficiency Certification
In my capacity as the Agency Fiscal Officer of the Department of General Services (the “Department”),
I hereby state that the CMAR Services for Rosedale Pool Replacement (DCAM-24-CS-RFP-0031) (the
“Contract”) with Atmos Solutions, Inc. (the “Contractor”), in the amount of $5,585,175.65 is consistent
with the Department’s current budget and that adequate funds are available in the budget for the
expenditure.
Per the Department’s Contracts & Procurement (“C&P”) team, on March 24, 2025, the Letter Contract
was executed by the Department, with an initial Not-to-Exceed (“NTE”) amount of $486,995.99. On
August 13, 2025, the Department executed Modification No. 1 to the Letter Contract in the amount of
$ 500,744.01, which increased the NTE amount of the Letter Contract to $987,740.00 ($486,995.99 +
$500,744.01). The proposed increase of $4,597,435.65 will increase the NTE amount to $5,585,175.65
($987,740.00 + $4,597,435.65).
While funding in the amount of $5,585,175.65 is being approved for capital-eligible items only, there
is an ineligible amount of $176,309.28, listed in Exhibit K1. See the non-capital column and associated
items. These items are ineligible for capital expenditure, per the District Guidelines. The goods/services
are needed in FY2026. There should be no purchases, commitments, or expenditures for these items,
until operating funds are available, via a purchase order for the same amount. In no event shall the
Contractor be entitled to perform any work against these items unless authorized in advance and in
writing by a duly authorized DGS Contracting Officer through a modification of the contract. Unless
and until such modification is executed by a duly authorized DGS Contracting Officer, the Contractor
will be limited to capital-funded purchase orders (“POs”) in the amount of $5,408,866.37 for the capital
eligible work authorized by this contract modification. For the avoidance of confusion, if the
Contractor performs any work with the ineligible items in the amount of $176,309.28, as outlined in
Exhibit K1, without express written authorization by a duly authorized DGS Contracting Officer,
the Contractor does so at its own risk.
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
The Department of General Services (DGS – Implementing AGY ) has $5,585,175.65 in the
Department of Parks and Recreation (DPR - Owner AGY) cumulative capital budget authority
balance.
The PASS information is below/attached:
Project
Number/ Name
Subtask AY Fund Detail Imp. AGY Owner
AGY
RK/PO Amount Comments
100215 -
(AM0.RPR37C.R
OSEDALE POOL
REPLACEMENT)
04.01(RDPLD.95101.
ROSEDALE POOL
REPLACEMENT.MO
DERNIZATION
PROJECTS)
N/A 3030300 AM0 HA0
PO723908 $486,995.99 Letter Contract
100215 -
(AM0.RPR37C.R
OSEDALE POOL
REPLACEMENT)
04.01(RDPLD.
95101.ROSEDALE
POOL
REPLACEMENT.MO
DERNIZATION
PROJECTS)
N/A 3030300 AM0 HA0
PO728612 $500,744.01 Mod No. 1 ESA No. 1
100215 -
(AM0.RPR37C.R
OSEDALE POOL
REPLACEMENT)
04.01(RDPLD.
95101.ROSEDALE
POOL
REPLACEMENT.MO
DERNIZATION
PROJECTS)
N/A 3030300 AM0 HA0
RK309666 $4,421,126.37 Proposed Increase (part
of 4,597,435.65)
100215 -
(AM0.RPR37C.R
OSEDALE POOL
REPLACEMENT)
04.01(RDPLD.
95101.ROSEDALE
POOL
REPLACEMENT.MO
DERNIZATION
PROJECTS)
N/A 3030300 AM0 HA0
RK316275 $176,309.28 Proposed Increase
(Ineligible part of
4,597,435.65) Reverse
capital paygo to
operating
reprogramming to be
submitted for approval
in FY26
Total $5,585,175.65
_______________________
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Services
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
3924 Minnesota Avenue NE, 6th Floor Washington, DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
OFFICE OF THE GENERAL COUNSEL
MEMORANDUM
TO: Tomás Talamante
Director, Office of Policy and Legislative Affairs
FROM: Kristen Walp
Senior Assistant General Counsel
SUBJECT: Legal Sufficiency Certification
Construction Management At -Risk (“CMAR”) Services for Rosedale Pool
Replacement
Contract Number: DCAM-24-CS-RFP-0031
Contractor: Atmos Solutions, Inc.
DATE: November 13, 2025
_____________________________________________________________________________
This is to certify that this Office has reviewed the above-referenced contract and has found it to be
legally sufficient, subject to submission of: (i) any required materials to Council for approval; (ii)
Council’s approval of the same; and (iii) a Fiscal Certification issued by the Department of General
Services’ Agency Fiscal Officer.
Please feel free to contact me at (202) 727-2800 with any questions.
____________________________
Kristen Walp
Senior Assistant General Counsel
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Contracts & Procurement Division
Sent Via electronic Mail to: afernando@atmossolutionsinc.com
March 18, 2025
Anthony Fernando
President
Atmos Solutions, Inc.
6856 Eastern Avenue NW, Suite 205
Washington, DC 20012
Subject: Notice to Proceed and Letter Contract
Reference: Request for Proposals (“RFP”) No. DCAM-24-CS-RFP-0031
Construction Management At-Risk Services for Rosedale Pool Replacement
RK300090
Dear Mr. Fernando:
We refer to the proposal submitted by Atmos Solutions, Inc. (th e “CMAR” or “Contractor”) in response to the
above-referenced RFP. As noted in the Department’s No tice of Award, Atmos Solutions, Inc. has been
selected to perform the required services and if this Letter Co ntract (“Letter Contract”) is signed by the
Contractor without modification of any kind, it will serve as t he notice to proceed for the work described
below. This notice to proceed is subject to the following terms:
1.
Letter Contract. This is a Letter Contract between the Cont ractor and the District of Colum bia
Government, acting by and through its Department of General Services (“DGS” or the “Department”), and shall
govern the parties' relationship until such time as a final con tract is entered into for the work described in the
above referenced RFP (the “Definitized Contract”); provided, however, that to the extent an issue is not covered
in this Letter Contract, the Request for Proposal shall govern. Once the Definitive Contract is executed by an
authorized Contracting Officer, this Letter Contract sha ll automatically be incorporated into and shall merge
into and be superseded by the Definitive Contract.
2.
Scope of Work. The Contractor shall provide Construction Ma nagement At-Risk (“CMAR”) s ervices
for the Rosedale Pool Replacement, located at 1701 Gales Street NE, Washington, DC 20002 (the “Project”), as
described in the Contractor’s Proposal dated November 21, 2024, submitted in response to the subject RFP and
Schedule of Values attached to this Letter Contract as (Exhibit A).
3.
Deliverables. In connection with the services provided pursu ant to this Letter Contract, the Contractor
shall provide, at a minimum, the deliverables in accordance with the requirements in the RFP, Schedule of Values
attached to this Letter Contract as (Exhibit A), and Form of Contract in connection to the authorized work 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 suc h deliverable, the Contractor shall pay to the
Department as a disincentive fee One Thousand Dollars ($1,000) per day after receiving written notice from the
Contracting Officer of failure 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.
Page 2 of 4
3924 Minnesota Ave, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727‐7283
4.
Not to Exceed Amount. The limit of this authorization is u p to $486,995.99 (“Not to Exceed” amount
or “NTE”) including $25,000.00 for Preconstruction Fee, $205,046.67 for Construction Management Fee, and $
256,949.32 for Lump Sum General, as further described in the Schedule of Values in Exhibit A. In no event
shall the Contractor be entitled to receive more than the NTE amount under this Letter Contract unless authorized
in advance and in writing by a duly authorized Contracting Officer. This NTE amount includes all costs incurred
by the Contractor in connection with the work authorized hereby.
5.
Key Personnel. To carry out its duties, the Contractor shall provide at least the key personnel identified
in Exhibit F (“Key Personnel”), who shall carry out the functions identified in Exhibit F. Key personnel shall
include, at a minimum, the following individuals: (i) the Proje ct Executive; (ii) the Field Superintendent; (iii)
the Project Manager who will supervise the Project; and (iv) the individual that will manage quality control and
interact with the Department’s quality control representative ( Safety/Quality Assurance/Quality Control
Manager). The Contractor will not be permitted to reassign any of the Key Personnel unless the Department
approves the proposed reassignment and the proposed replacement.
If the Contractor removes or reassigns one of the Key Personnel (excluding, however, instances where such
personnel become unavailable due to death, disability, or separation from the employment of the Contractor or
any affiliate of the Contractor) without the prior written cons ent of the Department's Contracting Officer, the
Contractor shall pay to the Department the sum of $25,000 for each replacement as a replacement fee and not as
a penalty, to reimburse the Department for its administrative costs arising from the Contractor 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 co sts. 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 Contractor
in the event that a member of the key personnel has been removed or replaced by the Contractor without the
consent of the Department. In the event the Department exercises the right to remove, replace or to reduce the
scope of services of the Contractor, the Department shall have the right to enforce the terms of the Agreement
and to keep-in-place those members of the Contractor's team not removed or replaced and the remaining
members shall complete the services required under the Agreement in conjunction with the new members of the
Contractor's team approved 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 respect ive agents, employees, and offices of each as
additional insureds. The Contractor must maintain insurance for all of their subcontractors as described in
Exhibit G.
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, on the earlier to occur of the following: (i) the
date the Definitized Contract becomes effective; or (ii) September 23, 2025. DGS reserves the right to terminate
this Letter Contract, in whole or specified part, for convenien ce in the manner described in Article 5 of the
District of Columbia Department of General Services Standard Co ntract Provisions General Provisions for
Construction Contracts Exhibit B.
8.
Billing. All invoices shall be submitted directly to the D epartment at the address specified in the RFP.
Purchase Order numbers should be included in all future invoice s 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.
Use of DGS’ ProjectTeam. The Contractor shall utilize the Department’s ProjectTeam system to submit
any and all documentation required to be provided by the Contra ctor for the Project, including or other web-
based document management system to submit any and all document ation required to be provided by the
Contractor, including, but not limited to: (i) requests for information; (ii) submittals; (iii) meeting minutes; (iv)
invoices/applications for payment (full package including all f orms required by the Department); (v) certified
Page 3 of 4
3924 Minnesota Ave, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727‐7283
payrolls (in addition to upload via LCP Tracker); (vi) drawings and specifications; (vii) punch list; and (viii)
other documents as may be designated by the Department.
Electronic storage and transmission of information via ProjectT eam system shall be compliant with the DGS
document security requirements.
10.
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 the required documentation for the invoice per Article 8 of the Standard Contract
Provisions, the Contractor shall enter all required information into the Portal after selecting the applicable
purchase order number which is listed on the Contractor’s profile.
11.
Purchase Order Number. This Letter Contract will become ef fective on the date the Letter Contract is
executed by the Department. The Department’s Contracts & Procur ement 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 Arad Rahimi at
arad.rahimi@dc.gov directly to obtain this number.
12.
Ownership and Use of Documents. All documents and work products prepared by the Contractor shal l
become the property of the Department upon the payment of invoices submitted under the Letter Contract.
13.
Trade Work/Site Control. Unless otherwise directed by the Department, the Contractor shall not perform
any trade work or take control of the site. Any authorization to proceed with trade work will include appropriate
provisions relating to compliance documents (first source emplo yment agreement, Department of Small and
Local Business Development (“DSLBD”), bonds, insurance, and saf ety procedures. At a minimum, however,
the Department’s Standard Contract Provisions for Construction shall apply and in addition to the requirements
set forth in any such subsequent authorization, prior to commencing any construction activity, 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 to pr ovide 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.
14.
Entire Agreement; Modification. This Letter Contract, al ong with the Standard Contract Provision s
(Exhibit B ), supersede all contemporaneous or prior negotiations, representations, course of dealing, or
agreements, either written or oral. No modifications to this Le tter Contract shall be effective against the
Department and unless made in writing signed by the Department. Notwithstanding the provisions of this Section
14, nothing herein shall limit the Department’s ability to unilaterally modify this Letter Contract.
15.
Davis Bacon Act Wage Determination and Title 29 CFR 5.5 Da vis Bacon Provision. The Contractor
agrees that the work performed under this Letter Contract shall be subject to the Davis Bacon Wage
Determination Act (40 U.S.C. §§ 3142-3148) Exhibit C1 and Title 29 Code of Federal Regulations (“CFR”)
part 5.5 Davis Bacon Provision Exhibit C2 in effect at the time of Letter Contract execution by the Department.
16.
Living Wage Act. The Contractor agrees that the work perfo rmed 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 wag e reporting requirements imposed by the act as
set forth in (Exhibit D).
17. C
ampaign Finance Reform Act. The Contractor agrees to comply with the Campaign Finance Reform
Act certification required pursuant to D.C. Official Code § 1-1 161.01 and will satisfy all self-certification
requirements, as applicable (Exhibit E).
Pag
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3924 Minnesota Ave, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727‐7283
18. Performance And Payment Bonds. The Contractor agrees to post a payment and performance bond with
a penal value equal to the Definitized Contract amount at the t ime the Definitized Contract is executed. The
CMAR will be required to post an updated payment and performanc e bond to reflect the GMP Amendment
amount Exhibit H.
19. Nonprofit Fair Compensation Act of 2020, D.C. Code § 2-222. 01 et seq.
19.1. Nonprofit
organizations, as defined in the Act, shall include in their rates the indirect costs incurred in the
provision of goods or performance of services under this contra ct pursuant to the nonprofit organization's
unexpired Negotiated Indirect Cost Rate Agreement (NICRA). If a nonprofit organization does not have an
unexpired NICRA, the nonprofit organization may elect to instead include in its rates its indirect costs:
(1) As calculated using a de minimis rate of 10% of all direct costs under this contract;
(2) By negotiating a new percentage indirect cost rate with the awarding agency;
(3) As calculated with the same percentage indirect cost rate a s the nonprofit organization negotiated with
any District agency within the past 2 years; however, a nonprof it organization may request to renegotiate
indirect costs rates in accordance with Section 20.2; or
(4) As calculated with a percentage rate and base amount, determined by a certified public accountant, as
defined in the Act, using the nonprofit organization's audited financial statements from the immediately
preceding fiscal year, pursuant to the OMB Uniform Guidance, and certified in writing by the certified public
accountant.
19.2 If this contract is funded by a federal agency, indirect c osts shall be consistent with the requirements for
pass-through entities in 2 C.F.R. § 200.331, or any successor regulations.
19.3 The Contractor shall pay its subcontractors, which are nonprofit organizations, the same indirect cost rates
as the nonprofit organization subcontractors would have received as a prime contractor.
20. Exhibits. The following exhibits are attached to the NTP/Le tter Contract:
Exhibit A – Schedule of Value
Exhibit B – Standard Contract Provision for Construction Projects
Exhibit C1 – Davis Bacon Wage Determination
Exhibit C2 –
Title 29 CFR 5.5 Davis Bacon Provision
Exhibit D – 2025 Living Wage Act
Exhibit E
– Campaign Finance Reform Act self-certification
Exhibit F
– Key Personnel
Exhibit G – Insurance Requirements
Exhibit H – Performance
and Payment Bonds
I S S U E D B Y : ACCEPTED BY:
DEPARTMENT OF GENERAL SERVICES
S i g n a t u r e : S i g n a t u r e :
N a m e : N a m e :
Title: T itle:
Date: D a t e :
Brian Butler
Atmos Solutions, Chief Operating Officer
3/19/2025
Suzi Tabot
Contracting Officer
3/24/2025
X
12. Accounting and Appropriation Data (If Required)
1
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
copy to the issuing office.E. IMPORTANT: Contractor is not, is required to sign this document and return
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
X D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and Contract No. DCAM-24-CS-RFP-0031
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.
15A. Name and Title of Signer (Type or print)
A. This change order is issued pursuant to: (Specify Authority)
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
16A. Name of Contracting Officer
Anthony Fernando - President Suzi Tabot
C. This supplemental agreement is entered into pursuant to authority of:
Letter Contract No. DCAM-24-CS-RFP-0031 - Construction Management At-Risk ("CMAR") Services for Rosedale Pool Replacement is hereby
modified as follows:
3. Terms & Conditions: All other Terms and Conditions remain unchanged.
1. Not-to-Exceed Amount: The L etter Contract's Not-to-Exceed amount is hereby increased by $500,744.01 from $486,995.99 to $987,740.00.
The $500,744.01 is an early release of funds to complete the preliminary scope of work, including selective demolition, earthwork, and Exterior
Improvements in order to meet the Project Schedule, prior to finalizing the Guaranteed Maximum Price ("GMP") package for the Project. In no
event shall the Contractor be paid more than $987,740.00 for the work authorized, unless the Contractor is authorized to exceed this limit in
advance and in writing by an authorized Contracting Officer.
2. Release. It is mutually agreed that in exchange for this Change Order and other considerations, the Contractor hereby releases, waives, settles
and ho
lds 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
Change Order, the above-referenced Project, and the Contract work.
(Signature of person authorized to sign) (Signature of Contracting Officer)
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.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
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
following methods: (a) By completing Items 8 and 15, and returning 1 copies of the amendment: (b) By acknowledging receipt of this
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
solicitation and this amendment, and is received prior to the opening hour and date specified.
15B. Atmos Solutions, Inc. 15C. Date Signed 16B. District of Columbia 16C. Date Signed
9B. Dated (See Item 11)
X
10A. Modification of Contract/Order No.
Contract POC: Ajmal Solamal (ajmal.solamal@dc.gov)
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
Atmos Solutions, Inc.
6856 Eastern Avenue NW, Suite 205
Washington, DC 20012
Anthony Fernando - President
10B. Dated (See Item 13)
March 24, 2025
afernando@atmossolutionsinc.com
DCAM-24-CS-RFP-0031
Contracts and Procurement Division Capital Construction Services Division
3924 Minnesota Avenue, NE, 5th Floor 3924 Minnesota Avenue, NE, 5th Floor
Washington, DC 20019 Washington, DC 20019
1. Contract NumberMODIFICATION OF CONTRACT Page of Pages
DCAM-24-CS-RFP-0031 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 to the Letter Contract See Block 16C PR-015364 | RK307760
Construction Management At-Risk
Services for Rosedale Pool
Replacement
2. Modification Number
6/7/25
8/13/2025
(Continuation)
Page of Pages
17. Contract Recap:
Letter Contract $486,995.99
Modification No. 1 $500,744.01
$987,740.00
Modification Number
2 of 2
Executed on: March 24, 2025
Cost Modification - Early Start Agreement ("ESA") No. 1
Modification No. 1 to the Letter ContractDCAM-24-CS-RFP-0031
Contract Number
Total Not-to-Exceed Amount
X
Contracts and Procurement Division Capital Construction Services Division
3924 Minnesota Avenue, NE, 5th Floor 3924 Minnesota Avenue, NE, 5th Floor
Washington, DC 20019 Washington, DC 20019
9B. Dated (See Item 11)
X
10A. Modification of Contract/Order No.
Contract POC: Jamshaid Azizi (jamshaid.azizi@dc.gov)
8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No.
Atmos Solutions, Inc.
6856 Eastern Avenue NW, Suite 205
Washington, DC 20012
Anthony Fernando - President
Page of Pages
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. 2 to the Letter Contract See Block 16C PR-015571
Construction Management At-Risk
Services for Rosedale Pool
Replacement
2. Modification Number
MODIFICATION OF CONTRACT
1. Contract Number
DCAM-24-CS-RFP-0031
10B. Dated (See Item 13)
March 24, 2025
afernando@atmossolutionsinc.com
DCAM-24-CS-RFP-0031
(Signature of person authorized to sign) (Signature of Contract Specialist)
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.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the
an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the
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
following methods: (a) By completing Items 8 and 15, and returning 1 copies of the amendment: (b) By acknowledging receipt of this
amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and
solicitation and this amendment, and is received prior to the opening hour and date specified.
15B. Atmos Solutions, Inc 15C. Date Signed 16B. District of Columbia 16C. Date Signed
15A. Name and Title of Signer (Type or print)
A. This change order is issued pursuant to: (Specify Authority)
The changes set forth in Item 14 are made in the contract/order no. in item 10A.
16A. Name of Contract Specialist
Anthony Fernando - President Farzana Balooch
C. This supplemental agreement is entered into pursuant to authority of:
Letter Contract No. DCAM-24-CS-RFP-0031 - Construction Management At-Risk ("CMAR") Services for Rosedale Pool Replacement is
hereby modified as follows, as additional time is required for review and approval of the Contractor's proposed Guaranteed Maximum Price
"(GMP"):
3. Terms & Conditions: All other Terms and Conditions remain unchanged.
1. Letter Contract Duration: The term of this Letter Contract and Notice to Proceed is hereby extended from September 23, 2025, to
December 30, 2025. Unless further extended by an authorized Contracting Officer, this Letter Contract will terminate on December 30, 2025,
or shall automatically be incorporated into and shall merge into and be superseded by the Definitized Contract upon execution of a Definitive
Contract by an authorized Contracting Officer.
2. Release. It is mutually agreed that in exchange for this Change Order 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 Change Order, the above-referenced Project, and the Contract work.
12. Accounting and Appropriation Data (If Required)
1
14. Description of amendment/modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.)
copy to the issuing office.E. IMPORTANT: Contractor is not, is required to sign this document and return
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
X D. Other (Specify type of modification and authority) Title 27 DCMR Section 4728 and Contract No. DCAM-24-CS-RFP-0031
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.
8/28/25
8.28.2025
(Continuation)
Page of Pages
17. Contract Recap:
Letter Contract $486,995.99
Modification No. 1 $500,744.01
$0.00
$987,740.00
Modification Number
2 of 2
Executed on: March 24, 2025
Cost Modification - Early Start Agreement ("ESA") No. 1
Modification No. 2 to the Letter ContractDCAM-24-CS-RFP-0031
Contract Number
Total Not-to-Exceed Amount
Modification No. 2 Administrative - No Cost Time Extension
Page 1 of 92
AGREEMENT
FOR
CONSTRUCTION MANAGEMENT AT-RISK SERVICES FOR
ROSEDALE POOL REPLACEMENT
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
ATMOS SOLUTIONS, INC.
CONTRACT NUMBER: DCAM-24-CS-RFP-0031
Page 2 of 92
PROJECT INFORMATION
A. PROJECT SUMMARY
1. Project Name: Construction Management At-Risk Services
for Rosedale Pool Replacement
2. Project Address: 1701 Gales Street NE, Washington, DC
20002
3. Agreement Type: Construction Management At-Risk with
Guaranteed Maximum Price (“GMP”)
4. Client Agency: District of Columbia Department of Parks
and Recreation (“DPR” or “Client)
A” )5. Contractor: Atmos Solutions, Inc.
6. Agreement Amounts:
i. Guaranteed Maximum Price: $5,585,175.65 guaranteed maximum price
(“GMP”) inclusive of the Letter Contrac t
Not-to-Exceed Amount of $987,740.00.
While a total amount of $5,585,175.65 is
being approved for capital-eligible items
only, there is an ineligible amount of
$176,309.28, listed in Exhibit K1.
7. Contractor Compensation:
i. Construction
Management Fee:
$205,046.67
ii. Base Construction
Management Fee (75% of
the Construction
Management Fee):
$153,785.00
iii. Preconstruction Fee: $25,000.00
iv. At Risk Portion of the
Construction Management
Fee (25% of the
Construction Management
Fee):
$51,261.67
v. Lump Sum General
Conditions Cost:
$256,949.32
Page 3 of 92
vi. Contingency: $244,634,35
vii. Allowances:
Owner Allowance
$338,340.50
8. Disincentive Fee
for Failure to
Timely Submit
Deliverables:
$1,000 per day
9. Liquidated
Damages for Delay
in Substantial
Completion:
$1,000 per day
10. Substantial Completion Date: May 22, 2026
11. Final Completion Date: June 25, 2026
12. Administrative Term Expiration
Date:
June 10, 2027
13. Key personnel removal or
replacement disincentive
fee:
$25,000 per person
16. Letter Contract:
i. Period of Performance From March 24, 2025 (date of execution
of Letter Contract) through
Administrative Term Date of June 10,
2027, with a Substantial Completion
Date of May 22, 2026, and Final
Completion Date of June 25, 2026.
ii. NTE Amount: $987,740.00
17. GMP Basis Documents Permit Set
Page 4 of 92
CONSTRUCTION MANAGEMENT AT-RISK SERVICES
FOR THE ROSEDALE POOL REPLACEMENT
DCAM-24-CS-RFP-0031
THIS AGREEMENT (“Agreement” or “Contract”) is made by and betwe en the
DISTRICT OF COLUMBIA GOVERNMENT, acting by and through its DEPARTMENT OF
GENERAL SERVICES (the “Department” or “DGS”) and ATMOS SOLUTION S, INC. with
a place of business at 6856 Eastern Avenue NW, Suite 205, Washi ngton, DC 20012 (the
“Construction Manager” or “Contractor”, and collectively, the “Parties”).
RECITALS
WHEREAS, the Department issued a request for proposals dated October 17, 2024 (the
“RFP”) to engage a contractor to provide Construction Managemen t At-Risk (“CMAR”)
services for the Rosedale Pool Replacement, located at 1701 Gales Street NE, Washington, DC
20002 (the “Project”);
WHEREAS, the Department desires that the Project be substantially complete no later
than May 22, 2026 (“Substantial Completion Date”);
WHEREAS, the Contractor submitted a pr oposal entitled Construction Man agement
At-Risk Services for the Rosedale Pool Replacement dated Novemb er 21, 2024, to provide
construction management at-risk services for the Project;
WHEREAS, on March 24, 2025, the Department and the Contractor entered into a
Letter Contract;
WHEREAS, the Department wishes to retain the Contractor to provide CMAR services
for the Project. The Project is to include preconstruction and construction services, as well as
close-out activities and move-in assistance;
WHEREAS, the Contractor wishes to provi de the preconstruction and cons truction
services, as well as any related services necessary to complete the Project, subject to the terms
and conditions set forth in this Agreement;
WHEREAS, the Department has retained the services of a program manager ( t h e
“Program Manager”) to advise it concerning the Project;
WHEREAS, the Department has established a budget for the Project, including all fees,
hard construction costs, loose furnishings, fees, and general conditions of the Contractor (such
budget, the “Project Budget”);
WHEREAS, the Department has engaged Citadel Architects (the “Architect/Engineer”
or “A/E”) pursuant to a separate contract (the “Design Contract”) to provide design, planning,
architectural, and engineering services, design feedback, and other preconstruction services in
order to construct the Project a nd the A/E has completed the de sign of the Project, the permit
Page 5 of 92
has been obtained and the Contractor has obtained quotes from t he trade subcontractors and
provided a GMP;
WHEREAS, the Department acknowledges th at the Contractor has provided all
Preconstruction deliverables; and
WHEREAS, the Department will remain in contract with the A/E and will manage the
Design Contract for the duration of the Project. The Contractor will, however, be required to
coordinate with the A/E.
NOW, THEREFORE, the Department and Contractor, for the consideration set forth
herein, mutually agree as follows.
Page 6 of 92
Article 1 - DEFINITIONS
Section 1.1 Administrative Term.
The Agreement shall have an administrative term (the “Administrative Term”) that runs
from the effective date of the notice to proceed to the Administrative Term Date set forth in the
Project Information S ection above. In addition, within this tim e, the Contractor 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 appl icable. The Administrative
Term is established for the sole purpose of permitting the Depa rtment’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 “Agreement” or “Contract” shall mean this entire, inte grated agreement
between the Department and the Contractor with respect to the P roject, consisting of this
document and the Exhibits thereto , including but not limited to the Standard Contract
Provisions (Construction Contract), the Construction Documents released for the Contractor’s
use and any Change Orders or Change Directives that have been executed by the Department.
Section 1.3 Client Agency.
The governmental or quasi-governmental entity represented by th e Department,
requesting the Project.
Section 1.4 Construction Documents.
The final drawings and specificat ions, as prepared, sealed by t he A/E’s design
professional in accordance with the law, and issued by the Cont ractor 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 whic h the Contractor shall
carry out the bulk of the construction for the Project.
Section 1.6 Cost of General Conditions.
The Cost of General Conditions shall have the meaning set forth in Section 8.2 of this
Contract.
Section 1.7 Contract Documents.
“Contract Documents” or “Contract” as used herein means Addenda , Contract Form,
Standard Contract Provisions, In structions to Bidders, General Provisions, Labor Provisions,
Performance and Payment Bonds, Sp ecifications, Special Provisio ns, Contract Drawings,
approved written Change Orders, and Agreements required to acce ptably complete the
Page 7 of 92
Contract, including authorized extensions thereof.
Section 1.8 Preconstruction Phase Services.
The services to be provided under Article 3 constituting the pr econstruction phase
services to be performed by the Contractor.
Section 1.9 Drawings.
The Drawings are the graphic and pictorial 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.
The point at which Substantial Completion has been achieved, all punch list items noted
at Substantial Completion have been completed and all documents the Contractor 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 Cont ract by which the Contractor sh all achieve Final
Completion. The Final Completion Date may be modified only by C hange Order (“Change
Order”) or Change Directive in accordance with the Agreement.
Section 1.12 Fully Complete.
To undertake all of the Work neces sary to fully construct and c omplete 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 Contr actor 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 hon ored 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 Construction Management Fee
and the Cost of the Work, that will be paid to the Contractor to Fully Complete the Project as set
forth in Article 5. The Guaranteed Maximum Price (“GMP”) may be modified only by Change
Order or Change Directive in accordance with the Agreement.
Section 1.14 Environmental and Hazardous Material Requirements.
The Contractor shall be required to comply with all applicable Federal and District
environmental laws and regulations for the project, including but not limited to, the District of
Columbia Environmental Policy Act (e.g., D.C. Code § 8-109.01 - 8-109.12; and the District of
Columbia Municipal Regulations Chapter 20-72). Additionally, t he Contractor shall lawfully
handle, remediate, and abate as necessary and appropriate, any toxic substance or hazardous
chemicals defined or regulated pursuant to federal, state or local laws, including in regard to
pollution, treatment, storage or d isposal of waste, or protecti on of human health or the
environment. Such laws include, without limitation, the Compreh ensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Page 8 of 92
Clean Water Act, the Clean Air Act and laws relating to emissio n, spills, leaks, discharges,
releases or threatened releases o f toxic material. The term Haz ardous Materials shall also
include petroleum and petroleum byproducts.
Section 1.15 Notice to Proceed.
A written notice to proceed, signed by the Department’s Contrac ting Officer, directing
the Contractor to proceed with the Project or any portion of the Project (“Notice to Proceed” or
“NTP”).
Section 1.16 Project Schedule.
The schedule for the Project agreed to by the Department and th e Contractor. Such
schedule shall include a Baseline Schedule (“Baseline Schedule”) as updated periodically by the
Contractor and approved by the Department. The Project Schedule shall not be changed except
by a 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.
Trade work performed by employees of: (1) the Contractor; (2) any entity that is a partner
or member of the entity comprising the Contractor; (3) any entity that controls, is controlled by,
or is under common control with the Contractor; or (4) any entity that controls, is controlled by,
or is under common control with any entity that is part of the Contractor. Self-Performed Work
is distinguished from trade work performed by Subcontractors unaffiliated with the Contractor
or the entities of which the Contractor is comprised.
Section 1.18 Services.
The services to be provided pursuant to the Agreement which sha ll include
preconstruction and construction services, as well as close-out activities and move-in assistance.
Section 1.19 Specifications.
The Specifications are that portion of the Contract Documents c onsisting of the written
requirements for materials, equipment, construction systems, st andards 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 Contracts), as amended, are attached hereto as Exhibit I and
incorporated herein.
Section 1.21 Subcontractor.
Any person, natural or legal, to whom the Contractor delegates performance of any
portion of the Work required by th e Agreement. The term “Subcon tractor,” used without a
qualifier, shall mean a subcontractor in direct privity with the Contractor. “Subcontractors at all
tiers” shall mean not only those Subcontractors in direct privi ty with the Contractor, but also
those performing Work pursuant to sub-subcontracts, subcontracts, and so on. “Subcontractors”
shall include both those who are retained to perform labor only and those who are retained both
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to perform labor and to supply material or equipment. “Subcontr actors” shall also include
design professionals who are not the Contractor’s employees and to whom the Contractor
delegates any part of its responsibilities under the Agreement, except those references to “trade
Subcontractors” shall exclude design professionals.
Section 1.22 Substantial Completion.
Substantial Completion shall mean that all of the following hav e occurred: 1) the
construction and installation work have been completed with onl y minor punchlist items
remaining to be completed; (2) a temporary certificate of occup ancy and all other required
permits or approvals have been obtained; (3) draft copies of al l operating and maintenance
manuals, training videotapes and warranties required by the Agreement have been delivered to
the Department and the Client Agency; (4) final warranties have been submitted for material
and labor for any installed, rep laced, or repaired synthetic su rfaces at recreation spaces
including, but not limited to, the following material types: Pour-in-Place (“PIP”), artificial grass
or turf, rubber mulch, and engineered wood fiber; (5) any supplemental training session required
by the Agreement for operating or maintenance personnel have be en scheduled; (6) all clean-
up required by the Agreement has been completed; (7) the Projec t is ready for the Department
and Client Agency to use it for its intended purpose; (8) all e quipment, supplies, materials and
items to be installed have been installed in accordance with th e manufacturer’s specifications
and industry standards and have undergone and passed the requisite testing and inspections; and
(9) certificates of compliance with impact standards (IPEMA) fo r synthetic surfaces at
recreation spaces have been submitted to the Department. “Minor punch list items” are defined
for this purpose as items that, in the aggregate, can be comple ted within ninety (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 Contractor shall achie ve Substantial
Completion. The Substantial Comp letion Date may be modified onl y by Change Order or
Change Directive in accordance with the Agreement.
Section 1.24 The 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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Article 2 - GENERAL PROVISIONS
Section 2.1 Letter Contract.
The Parties acknowledge that certain of the preconstruction activities described in Article
3 of this Agreement were performed pursuant to the Letter Contr act between the Parties dated
March 24, 2025. 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 be
incorporated into and shall merge into and be superseded by this Agreement. The Parties agree
that any services provided or work performed pursuant to the merged Letter Contract, and prior
to the Agreement effective date, shall be governed by the terms and conditions of this
Agreement.
Section 2.2 Term and Termination
The period of performance under th is Agreement shall commence f rom the date of
execution of the notice to proceed (“Notice to Proceed” or “NTP”) by the Department and shall
terminate upon the expiration of the Administrative Term or upon termination by the
Department pursuant to Articles 5 and 6 of the Standard Contract Provisions for Construction
Contracts.
Section 2.3 Relationship of Parties.
The Contractor accepts the relat ionship of trust and confidence established with the
Department by this Agreement, and covenants with the Department to furnish the Contractor’s
reasonable skill and judgment an d to cooperate with the Program Manager in furthering the
interests of the Department. The Contractor shall use its best efforts to perform the Work and
complete the Project in an expeditious and economical manner consistent with the interests of
the Department. The Department s hall endeavor to promote harmony and cooperation among
the Department, Contractor, Program Manager, and other persons or entities employed by the
Department for the Project. In p erforming its duties under this Agreement, the Contractor shall
at all times use the standard of care used by the Contractor that constructs projects similar to the
Project in type, size, and scope in large, urban areas. Wheneve r the term “competent” is used
herein to describe the Contracto r’s actions or duties that term shall refer to the level of
competence customarily possessed by those Contractors that cons truct projects similar to the
Project in type, size, and scope in large, urban areas.
Section 2.4 Confidentiality of Information
The Contractor shall assure and keep all information and data o btained 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 corp oration, unless disclosure is
required pursuant to court order, subpoena, or other regulatory authority. The Contractor shall
not be divulged of confidential information wit hout the individ ual’s and the Department’s
written consent and only in accordance with the District’s and/ or Federal laws, codes, and
regulations. The Contractor and any subcontractors who utilize, access, or store personally
identifiable information as part of the performance of this Agreement are required to safeguard
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this information and immediately notify the Department of any b reach or suspected breach in
the security of such informa tion. The Contractor and all subcontractors shall allow the
Department to both participate in the investigation of incident s and exercise control over
decisions regarding external rep orting. The Contractor, subcont ractors, and their respective
employees working on this Project may be required to sign a confidentiality statement.
Section 2.5 Project Description.
The Contractor shall provide any and all Services needed for th e Project's completion.
The Project shall be complete, operating, and ready for use by the Substantial Completion Date
and within the Project's budget as set forth in this Contract.
The Contractor will be required to provide a full range of serv ices required to selectively
demolish existing features as necessary and construct a new exp ansion facility to meet the
Department’s programmatic require ments. The Schematic Design Dr awings documents
prepared by the Architect/Engineer (“A/E”) to date are included as Exhibit A.
The Rosedale Pool facility is located at 1701 Gales Street NE, Washington, DC 20002, and is
connected to the Rosedale Recreation Center. The outdoor pool f acility measures roughly
18,000 square feet and includes a main pool, a lap pool, and an infant pool. The facility also
features a large pool deck with seating and shade structures.
The Project renovation will widen the existing lap pool by addi ng two additional lanes,
expanding the pool deck, and replacing the existing infant pool with an enclosed splash pad.
The main pool construction will include the removal of two exis ting slide structures and the
installation of a new beach entry with waterplay features, stair access, and a perimeter skimming
system. The entire pool equipment and system will be upgraded with a new pump plant, filters,
chemical feed system, backwash tank, and associated piping. The e n t i r e p o o l d e c k w i l l b e
replaced and include new drains. The expansion of the pool deck area will require extending
the existing retaining wall. The pool deck will receive new fen cing, shade structures, and
furniture. Additionally, the non-functioning deck showers will be replaced. The Project will
include new plantings and the removal of existing trees. If app licable, the installation of any
synthetic surface must comply with regulations set forth in D.C. Code § 10-171.03.
Generally, the Contractor’s res ponsibilities shall include, but will not be limited to, the
following:
a) To confirm the construction of the Project in accordance with t he Contract
Documents (“Contract Documents”).
b) To provide all construction management services necessary to implement the goals
o f t h e P r o j e c t i n c l u s i v e o f , but not limited to, the following: construction
management services inclusive o f budgeting, cost estimating, va lue engineering
(“Value Engineering”), constructability reviews, scheduling, 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
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Project.
e) To furnish and provide FF&E. FF&E procurement schedule to be developed by the
Contractor subject to DPR, the Department’s specification, agre ement and
acceptance.
f) To provide one (1) year of preventative and corrective maintena nce services
following substantial completion and use the recommended mainte nance schedule
developed as a basis to meet project closeout requirements.
The Contractor will be required to work with the A/E, Department, DPR, and other applicable
regulatory agencies to advance the design for the Project and to construct the approved design
no later than the Substantial Completion Date. The Contractor w ill be required to engage in
preconstruction efforts to ensure constructability reviews of the design in a manner consistent
with the Department’s goals for the Project (e.g., programmatic , budgetary, schedule, and
quality); to solicit competitive trade bids for the construction work and to develop an acceptable
guaranteed maximum price and corresponding scope and schedule f or the work; and to
implement the requisite construction and other work necessary no later than the dates set forth
in this RFP. The Contractor will be required to provide a Project ready for occupancy and shall
be responsible for all items of c ost except for those items set f o r t h i n Section 9.7 of this
Agreement.
The Project shall be constructed in such a way to allow for substantial completion to be achieved
no later than the Substantial Completion Date.
The modernization shall include Americans with Disability Act ( “ADA”) accessibility
requirements, life safety and fire protection requirements, sec urity requirements, IT
renovations, Mechanical, electrical, plumbing (“MEP”) systems renovations, roof renovations,
and various exterior site improvements.
Section 2.6 Contracting Officer’s Technical Representative and Program Manager
The Department has engaged a C ontracting Officer’s Technical Re presentative
(“COTR”) and Program Manager to provide certain program managem ent functions. Such
COTR and Program Manager shall, at all times, be acting solely for the benefit of the
Department, not the Contractor. The Contractor hereby acknowledges and agrees that only a duly
authorized and designated Contract ing Officer shall have the au thority to direct the Contractor
to start the Project or to issue change orders, contract modifications, or change directives on the
Department’s behalf. The COTR and Program Manager shall not ha ve the authority to modify
any of the rights and obligations of the Department or the Cont ractor pursuant to the proposed
Contract, or to issue change orders, contract modifications, or change directives. As of the date
that this Agreement is executed, the Department’s duly authoriz ed Contracting Office and
Program Manager are set forth in Exhibit H.
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Section 2.7 General Description of Contractor’s Duties.
Generally, the Contractor shall p erform the services in a profe ssional workmanlike
manner. The Contractor shall supply and furnish at the location w h e r e the Work is to be
performed all 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 Contractor. Any labor, materials, equipment, tools, services, or supervision not
specifically described in this Agreement, but which may be fair ly implied as required thereby
or necessary to properly complete the Work, shall be deemed within the Scope of the Work and
shall be provided by Contractor at Contractor’s sole expense.
Section 2.8 Warranties and Representations.
All disclosures, representations , warranties, and certification s the Contractor makes in
its proposal in response to the R FP shall remain binding and in effect throughout the term of
the Agreement. The Contractor reaffirms that all such disclosures, representations, warranties,
and certifications are true and correct.
2.8.1. If any disclosure, representation, warranty, or certification the Contractor
has made or makes pursuant to the RFP or the Agreement, includi ng, without
limitation, representations concer ning the Contractor’s constru ction or design
experience and qualifications, cl aims or litigati on 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.
2.8.2. The terms and conditions of this Section 2.8 shall apply during both
the Preconstruction and Construction Phases.
Section 2.9 Responsibility for Agents and Contractors.
At all times and during both the Preconstruction and Construction Phases, the Contractor
shall be responsible to the Department for any and all acts and omissions of the Contractor’s
agents, employees, subcontractor s, sub-subcontractors, material suppliers, laborers, and the
agents and employees of the subcontractors, sub-subcontractors, material suppliers, and laborers
performing or supplying Work in connection with the Project.
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Article 3 - CONTRACTOR’S PRECONSTRUCTION SERVICES
Section 3.1 Preconstruction Services.
The Preconstruction Phase will start from the issuance of the Notice to Proceed through
the execution of this Agreement. During the Preconstruction Phase, the Contractor shall provide
such preconstruction services to properly advance the Project. Without limiting the generality
of the foregoing, the Contractor shall:
(i) Schedule and attend regular meetings with the Department Repres entatives and
the A/E as needed to conduct valu e engineering, constructabilit y reviews and
provide scheduling and cost analysis to assist the A/E in furthering the drawings,
assist the A/E to ensure that the design evolves in a manner co nsistent with the
programmatic requirements while not exceeding the overall hard cost, assist with
code compliance and permitting issues, attend a kick-off meetin g and maintain
meeting minutes, perform site visits and attend/facilitate meet ings with District
staff as necessary;
(ii) Meet and coordinate with regulat ory, reviewing, and stakeholder agencies as
necessary;
(iii) Meet and coordinate with all app licable utility companies and a gencies as
required;
(iv) Attend and participate in community meeting(s) to update community regarding
the Project; and
(v) Act as scribe and distribute minutes as necessary for all coordination meetings.
The following deliverables will be required from the Contractor as part of the preconstruction
phase:
1) Project Schedule and Cost estimate for all A/E deliverables, in cluding but not
limited to Design Development Documents, as requested.
2) List of Long Lead Items that coul d adversely impact the Project ’s schedule and
recommendations for purchase.
3) List of subcontractors from whi ch the Contractor has solicited bids and bidding
procedure.
4) Trade bid tabulations, includi ng all subcontractor Proposals to i n c l u d e c o s t
estimates for all Operating items in the GMP per DGS capital paygo guidelines.
5) Statement of constructability wit hin ten (10) days of the concl usion of the
Preconstruction Phase, executed by the Contractor.
6) Insurance Certificates.
7) Contractor’s Performance and Payment Bonds.
8) GMP Proposal.
Throughout the Preconstruction Phas e, the Contractor shall sche dule and attend regular
meetings with the Department, the Program Manager, and the A/E. T h e D e p a r t m e n t
acknowledges that the Contractor has provided all Preconstructi on deliverables. A list of
preconstruction deliverables is set forth in Exhibit C.
Section 3.1.1 Additional Preconstruction Services. In addition to those items
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enumerated above, the Contractor 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 or dering of long-lead materials, condition assessments
(including 3D reality capture s canning), building stabilization , conservator studies,
archeological studies, recommended testing, additional geotechnical testing and monitoring of
historic assets.
Section 3.2 Baseline Schedule, Building System Assessment, and Construction
Management Plan.
Section 3.2.1 Baseline Schedule. Within ten (10) busin ess days after the
Preconstruction NTP is issued, the Contractor shall prepare and submit a Baseline Schedule for
the Project (the “Baseline Schedule”). The Baseline Schedule sh all be subject to review and
approval by the Department, and the Contractor shall incorporat e 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 suffic ient level of detail to permit the
Department, the Contractor, and any other affected parties to p roperly plan the Project. The
Baseline Schedule shall show: (i) key design milestones and bid packages (to be provided by
the A/E); (ii) release dates for long lead items; (iii) release dates for key subcontractors; and
(iv) Substantial and Final Completion Dates. The Baseline Schedule must also be submitted in
Primavera 6 native format and shall be updated by the Contractor, at a minimum, on a bi-weekly
basis. Bi-weekly updates to the schedule should include the original baseline schedule as well
to show the time difference between planned start and finish dates versus actual start and finish
dates.
During the Preconstruction Phase, the Contractor shall monitor the Project’s progress and
promptly notify the Department o f any delays, regardless of the ir cause, the causes of such
delays, and the Contractor’s best projection of the effect of such delays on the Project Schedule.
The Department's receipt of, and lack of objection to, any sche dule update showing a later
Substantial Completion or Final Completion shall not be regarde d as the Department’s
agreement that the Contractor may have an extension of time, or as a waiver of any of the
Department’s rights, but merely as the Contractor’s representation that, as a matter of fact, the
Project may not be completed by the applicable Substantial or Final Completion Date. The
Project Schedule shall be maint ained and continuously updated d uring the Preconstruction,
Construction, and closeout Phases.
Section 3.2.2 Construction Management Plan. The Contractor shall submit a draft
of its construction management plan (“Construction Management Plan”) within thirty (30) 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 rem oval plan, traffic and parking
control, communications procedures, emergency procedures, quali ty control procedures, dust
control, public street cleaning a nd repair, planned occupancy o f public ways, erosion control,
tree protection plan, vibration monitoring, temporary fire protection measures, Project signage,
pest control, construction staging plan, and construction logistics plan.
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Section 3.3 Constructability Reviews
Section 3.3.1. It is contemplated that the Contractor will meet with represent atives of
the Department and the A/E, as well as other stakeholders, to b etter develop the Department’s
requirements for the Project following contract award. During t he Preconstruction Phase, the
Contractor will be required to provide constructability reviews of the design documents for the
Project.
Section 3.3.2. The Contractor shall meet with the representatives of the Department,
A/E and Client Agency throughout t he Preconstruction Phase as t he design progresses and
these and other stakeholders p rovide input in and approve the design direction at appropriate
times. The GMP Basis Documents, and all interim design submissi ons shall be subject to
review and approval by the Department, and the Contractor shall be required to provide input
on these documents to address concerns raised by the Department and/or other project
stakeholders, and such reviews shall not entitle the Contractor t o a n i n c r e a s e i n t h e
Preconstruction Fee.
Section 3.3.2.1 Constructability/Sole Source/Long-Lead Time Memorandum.
Concurrently with the Construction Management Plan, the Contrac tor shall prepare a
memorandum identifying key construction con cerns related to the Project. Such
memorandum shall: (i) assess the constructability issues related to the Project, including site
logistics; (ii) identify any items where the design is predicated on a single manufacturer and,
if so, identify at least two (2) comparable products; and (iii) identify any long-lead delivery
items that could adversely affect the schedule contemplated in this Agreement. To the extent
any such long-lead items are identified, the memorandum shall make recommendations for
addressing such items.
Section 3.3.2.2 Early Release/Abatement, Razing, & Demolition.
Section 3.3.2.2.1 Early Release Packages. The Department may release
funding for hazardous materials abatement and selective demolition or razing,
and funding for long- lead items in advance of the Construction Phase. If the
Contractor believes an earlier r elease is required for long-lea d materials in
order to meet the Project Schedul e, it shall advise the Departm ent and make
a recommendation as to the requested release date. Similarly, if the Contractor
believes that additional work must be released in advance of the establishment
of a GMP for the Project, it shall advise the Department and ma ke a
recommendation as to the scope of work to be released as well a s to the
requested release date. Further, any decision to authorize an early release shall
be made by the Department in its sole and absolute discretion.
Section 3.3.2.2.1 Abatement, Razing, & Selective Demolition /
Exploratory. The Department may release the Contractor to commence
hazardous material abatement, razing, and selective site demoli tion, or other
early activities, as applicable. It is envisioned that this wor k will be released
in advance of the Construction NTP.
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Section 3.3.2.2.2 Long Lead Materials . The Department will release
funding for long-lead items once the Permit Set/Construction Do cuments
have been approved. If the Contractor believes an earlier relea se 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 release shall be made by the Department in its sole an d absolute
discretion.
Section 3.3.2.3 Permits.
The Contractor will be responsib le for preparing and submitting all permits and
applications for other approvals t hat are necessary for the con struction of the Project. No
later than ten (10) days after the notice to proceed for Precon struction Services, the
Contractor shall prepare and submit a matrix that identifies al l permits and land use
approvals that are required for the Project to proceed. The matrix should include zoning and
other land use entitlements, building permits, as well as trade permits and lane closure
permits. The matrix shall identify the specific permit, the da te by which such is needed to
maintain the Project’s Schedule, and a status column. The matrix shall be updated monthly.
For permits previously submitted by the Department or the A/E, the Contractor shall
provide assistance and input, if and as requested by the Depart ment, for all such permits
through the review process. The Contractor shall develop a list of the required permits and
shall track the progress of all such permits through the review process. The Contractor shall
update the Department with the status of each permit that is required for the Project.
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Article 4 - GUARANTEED MAXIMUM PRICE.
Section 4.1 Guaranteed Maximum Price.
Subject to additions and deductions which may be made only in accordance with the Agreement,
the Construction Manager repres ents, warrants and guarantees to the Department that the total
maximum cost to be paid by the Department for Construction Mana ger’s complete performance under
the Agreement, including, but not limited to, Final Completion of all Work, all services of Construction
Manager under the Agreement, and all fees, compensation and rei mbursements to the Construction
Manager, shall not exceed the total amount of Five Million Five Hundred and Eighty-Five Thousand
One Hundred and Seventy Five Dollars and Sixty Five Cents ( $5,585,175.65) (the “Guaranteed
Maximum Price” or “GMP”). Costs which would cause the GMP (as may be adjusted pursuant to the
Contract Documents) to be exceeded shall be paid by the Construction Manager without reimbursement
by the Department. The GMP is inclusive of the Nine Hundred and Eighty-Seven Thousand Seven
Hundred and Forty Dollar ($987,740.00) Initial Not-To-Exceed Amount set forth in the Letter Contract.
Section 4.2 Review of GMP Basis Documents.
The Department has selected the Contractor, in large part, beca use of its special expertise in
constructing similar projects. Before submitting its GMP, the C ontractor shall review the GMP Basis
Documents for accuracy, constructability, and completeness and shall bring such deficiencies to the
attention of the Department and shall cause its A/E to address any such deficiencies. To the extent that
any such deficiencies in the GMP Basis Documents could have bee n identified by such review by a
competent Contractor, 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 b e a sum established by the
Department and the Contractor to cover, among other things costs necessary to address scope expansion
that is a logical development of the design, issues arising from or as a result of deficiencies in the GMP
Basis 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 a s emergencies, unforeseeable c hanges in market conditions for
materials or labor, or subsurfa ce, soils or site conditions tha t were neither know n nor reasonably
discoverable as of the effective date of the Agreement (the “Contingency”). During the Construct ion
Phase, the Contractor shall keep the Program Manager and the Co ntracting Officer informed as to the
status of the Contingency and sh all, at a minimum: (i) advise t he Program Manager and Contracting
Officer when draws reach 3% upon the contingency in a timely ma nner; and (ii) provide the Program
Manager with running status of the Contingency balance at least once every two (2) weeks.
Section 4.4 Guaranteed Maximum Price Components. The Guaranteed Maximum Price is
comprised of the maximum amount payable by the Department for:
Section 4.4.1 The Cost of the Work for full and complete performance of the W ork
in strict compliance accordance with the Contract Documents;
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Section 4.4.2 A Preconstruction Fee for the Construction Manager, as defined in the
Agreement, in the amount of $25,000.00;
Section 4.4.3 A Construction Management Fee for the Construction Manager, as
defined in the Agreement, in the amount of $205,046.67; and
Section 4.4.4 A Lump Sum General Conditions Cost, as defined in the Agreement ,
in the amount of $256,949.32.
Section 4.4.5 The Guaranteed Maximum Price is further broken down into line items
and categories on Exhibit K attached hereto.
Section 4.5 Basis of Guaranteed Maximum Price. The GMP is for the performance of the Work in
accordance with the Contract Documents listed and attached to this Agreement and marked Exhibits as
follows:
Section 4.5.1. Exhibit K : The proposed GMP, including a statement of the
detailed cost estimate organized by trade categories, allowance s, Contingency, and other
items, and the fees that comprise the GMP.
Section 4.5.2. Exhibit K1 : Ineligible costs that require further review and
approval from the Department’s Office of Financial Officer befo re using the cost and the
District’s General Guidelines for Capital Financing Eligibility.
Section 4.5.3. Exhibit K2: A list of the Drawings and Specifications, including
all addenda thereto, and general, supplementary, and other Conditions of the Agreement on
which the GMP is based.
Section 4.5.4. Exhibit K3: A list of allowances as well as a statement of their
basis; provided, however, that only such allowances as are agreed to by the Department shall
be included.
Section 4.5.5. Exhibit K4: A list of the clarifications and assumptions made
by the Contractor in the prepara tion of the GMP to supplement the information contained in
the Drawings and Specifications, noting in particular any exclu sions. The assumptions and
clarifications shall take preced ence over the Drawings and Spec ifications, but shall be
subordinate to the Agreement.
Section 4.5.6. Exhibit B: A Construction Phase Schedule, which shall include, but
not be limited to, the Substantial and Final Completion Dates, upon which the GMP is based,
and a schedule of the Construction Project Documents issuance d ates upon which the
Substantial and Final Completion Dates are based (the “Project Schedule”).
Section 4.5.7. Exhibit P : A subcontracting plan set ting forth the names and
estimated dollar volume of the work that will be performed by l ocal, small, and
disadvantaged business enterprises, as certified by the Departm ent of Small and Local
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Business Development, upon which the GMP is based.
Section 4.5.8. Exhibit S: First Source Employment Agreement and Revised First
Source Employment Plan.
Section 4.6 Certification. The Construction Manager specifically acknowledges and declares that the
Contract Documents are sufficien tly complete to have enabled th e Construction Manager to determine
the Cost of the Work therein in order to enter into the GMP and to enable the Construction Manager to
agree to construct the Work outlined therein in accordance with applicable laws, statutes, building codes
and regulations to the best of Construction Manager’s knowledge , and otherwise to fulfill all its
obligations hereunder. The Construction Manager further acknowl edges that it has visited the site,
examined all conditions affecting the Work, is fully familiar w ith all of the conditions thereon and
affecting the same, and has carefully examined all drawings and specifications provided to it. The GMP
Drawings and Specifications include various clarifications and assumptions that are intended to further
define the scope of work that will be required to complete the design. The Construction Manager has
included within the GMP sufficient amounts to cover aspects of the work that are not shown on the GMP
Drawings and Specifications.
Section 4.7 Cost Overruns. Subject to additions or deductions which may be made in accorda nce
with the Agreement, the Construc tion Manager shall be solely li able and responsible for and shall pay
any and all costs, fees, and other expenditures in excess of th e Guaranteed Maximum Price for and/or
relating to the Work, without entitlement to reimbursement from the Department. Construction Manager
shall not be entitled to any fee, payment, compensation, or rei mbursement under the Agreement or
relating to the Work or Project other than as expressly provided in the Agreement.
Section 4.8 Allowances. The Guaranteed Maximum Price includes specific “Unit Price Allowance
Amounts” for certain items as shown on the Schedule of Values a nd budgeted in the Guaranteed
Maximum Price (“Allowance Items”). The only Allowance Items sha ll be those specifically identified
as such in the Schedule of Values and in the Guaranteed Maximum Price. The Allowance Amounts
represent all Costs of the Work of the Allowance Items, including, without limitation, costs of materials,
labor, handling, transportation, loading and unloading, and ins tallation, as determined by the
Construction Manager.
Section 4.9 Intent of the Agreement. The intent of the Agreement is for the Construction Manager
to perform and supply, and the De partment hereby engages the Co nstruction Manager to and
Construction Manager hereby agrees to perform and supply, the W ork, including all necessary
scheduling, procurement, supervision, construction, and constru ction management services and supply
all necessary labor, materials, equipment and related work and services necessary to fully complete the
Work and obtain the intended results of the Contract Documents, including, but not limited to the
requirements of the Project Schedule and the Guaranteed Maximum Price requirements set forth herein.
The enumeration of particular items in the Specifications and/o r Drawings shall not be construed to
exclude other items. The Contract Documents are complementary, and what is required by any one of
the Contract Documents (including either a Drawing or Specification) as being necessary to produce the
intended results shall be binding and required as a part of the Work as if required by all Contract
Documents.
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Section 4.10 Construction Manager’s Compliance with Contract Documents. The Construction
Manager agrees, accepts and assumes that the Department's decision will require implementation of the
most stringent requirements among any conflicting provisions of the Contract Documents as being part
of the Work. The Construction Ma nager agrees to be bound by al l decisions by the Department to
implement the most stringent of any conflicting requirements wi thin the Contract D ocuments. Any
failure by the Construction Manager to seek such clarifications shall in no way limit the Department's
ability to require implementati on, including replacement of ins talled work at a later date at the
Construction Manager’s sole expe nse, to achieve compliance with the more stringent requirements.
Without limiting the generality of the foregoing, the Construction Manager hereby agrees as follows:
Section 4.10.1. The failure of the Department to insist in any one or more inst ances
upon a strict compliance with any provision of the Agreement, or to exercise any option herein
conferred, shall not be construed as a waiver or relinquishment of the Department's right
thereafter to require compliance with such provision of the Agreement, or as being a waiver of
the Department's right thereafter to exercise such option, and such provision or option will
remain in full force and effect.
Section 4.10.2. If there is any inconsistency in the Drawings or any conflict between
the Drawings and Specifications, the Construction Manager shall provide the better quality or
greater quantity of work or materials, as applicable, unless th e Department directs otherwise in
writing. The Construction Manager shall also notify the Department of such conflict.
Section 4.10.3. The Construction Manager shall be responsible for dividing the Work
among the appropriate subcontractor s and vendors. No claim will be entertained by the
Department based upon the organization or arrangement of the Sp ecifications and/or the
Drawings into areas, sections, subsections or trade disciplines.
Section 4.10.4. Detail drawings shall take precedence over scale drawings, and
figured dimensions on the Drawings shall govern the setting out of the Work.
Section 4.10.5. Unless the Specifications expressl y state otherwise, references t o
documents and standards of professional organizations shall mea n the latest editions published
prior to the Effective Date.
Section 4.10.6. Technical words, abbreviations and acronyms in the Contract
Documents shall be used and interpreted in accordance with the Agreement and the customary
usage in the construction industry.
Section 4.10.7. Whenever consent, permission or approval is required from any party
pursuant to the provisions of t he Contract Documents, such cons ent, permission or approval
shall, unless expressly provided otherwise in the Agreement, be given or obtained, as applicable,
in writing.
Section 4.11 Capital Eligibility. While funding in the amount of $5,585,175.65 is being approved for
capital-eligible items only, there is an ineligible amount of $176,309.28, listed in Exhibit K1. See the
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non-capital column and associated items. These items are inelig ible for capital expenditure, per the
District Guidelines. The goods/services are needed in FY2026. T here should be no purchases,
commitments, or expenditures for these items, until operating f unds are available, via a purchase order
for the same amount. In no event shall the Contractor be entitled to perform any work against these items
unless authorized in advance and in writing by a duly authorize d DGS Contracting Officer through a
modification of the contract. Un less and until such modificatio n is executed by a duly authorized DGS
Contracting Officer, the Contractor will be limited to capital- funded purchase orders (“POs”) in the
amount of $5,408,866.37 for the capital eligible work authorized by this contract modification. For the
avoidance of confusion, if the Contractor performs any work wit h the ineligible items in the amount of
$176,309.28, as outlined in Exhibit K1, without express written authorization by a duly authorized DGS
Contracting Officer, the Contractor does so at its own risk.
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Article 5 - CONSTRUCTION PHASE
Section 5.1 General.
The Construction Phase shall not commence until the Department issues an NTP for
Construction Phase Services. The Contractor shall, through subc ontractors or, with the written
consent of the Department, with its own forces, perform all of the Work necessary to construct
the Project so that it is complete, safe, and properly built in strict accordance with the approved
Construction Documents and the other requirements of this Agreement. Without limitation, the
Contractor shall provide all of t he labor, materials, tools, eq uipment, 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 Contractor shall be responsible for
paying for and obtaining all nece ssary permits, including the B uilding Permit, and to pay all
necessary fees for utility connections. The Work shall be carri ed 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 unus ed, unless otherwise specified,
and shall be free of manufacturing or other defects.
5.1.1. Unrenovated Portions of the Structure. In constructing the Project, the
Contractor shall ensure that unrenovated portions of existing structures, if any, including,
but not limited to, the mechani cal, plumbing, electrical system s, and other building
systems are not adversely affect ed. All unrenovated portions of the structures should
function, at a minimum, at the l evel of functionality that exis ted 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 Contractor’s Wo rk, the Contractor shall
be back-charged the costs incurred by the Department in address ing the decreased
functionality.
5.1.2 Construction Phase. In order to fully manage the Project, the Contractor
shall be required to undertake, at minimum, the following tasks:
1. Participate and assist in Projec t/Planning meetings, during all phases and provide a
project manager for the entire duration of the Project.
2. Provide and maintain a fully equipped office on-site to perform all required
Contractor duties.
3. Participate and assist in A/E led community meetings as support throughout the
design phases of the Project.
4. Maintain full-time, on-site cons truction supervision and provid e daily inspections,
quality control, monitoring, coordi nation of various trades, re cord drawings, and
daily work log.
5. Conduct weekly progress meetings with the project manager and all trades, following
a contractor-generated agenda and meeting minutes.
6. Provide general safety and signa ge and posting for the Project and ensure that each
subcontractor prepares and submit s adequate safety program and monitoring
throughout the Project.
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7. Provide a written monthly report that includes: (i) an updated schedule analysis; (ii)
an updated cost report; (iii) a monthly review of cash flow; and (iv) a narrative of the
work performed.
8. Manage the change order process with the trade subcontractors t o verify validity,
purpose, and cost.
9. Prepare payment requests, verify accuracy and forward for approval and payment.
10. Assemble close-out documents required, including an O&M Manual.
11. Provide assistance to DPR and DGS through any applicable warranty periods.
12. Take control of the site and install the necessary construction fences and other devices
to properly secure the site. It is anticipated that this will occur when the Construction
Phase begins. The Contractor’s storage/laydown area will be limited to the limits of
disturbance shown on the approved construction plans. Additiona lly, the Contractor
is responsible for safety of equipment on site and must follow guidelines spelled out
in Section 2.5.2. of the RFP.
13. Abate hazardous materials, if required, in accordance with the Environmental
Protection Agency (“EPA”) and all jurisdictional agencies.
14. Demolition, including razing exis ting park features, complete e xcavation and site
grading necessary to complete the Project.
15. Salvage and store all items as identified by the Department.
16. Pay all permits and fees associated with the Project, other tha n the building permit
fees.
17. Provide all required insurance, p erformance and payment bonds b efore issuing the
NTP.
18. Remove the balance of construction debris off site in accordance with all applicable
rules and regulations of those jurisdictions having authority.
19. Take control of the site and install the necessary construction fences and other devices
to properly secure the site. It is anticipated that this will occur when the Construction
Phase begins. The CMAR’s storage/laydown area will be limited t o the limits of
disturbance shown on the approved construction plans. Addition ally, the CMAR is
responsible for safety of equipment on site and must follow guidelines spelled out in
Section 2.5.2 of the RFP.
20. Abate hazardous materials, if required, in accordance with EPA and all jurisdictional
agencies.
21. Demolition, including razing exis ting park features, complete e xcavation and site
grading necessary to complete the Project.
22. Salvage and store all items as identified by the Department.
23. Pay all permits and fees associated with the Project, other tha n the building permit
fees.
24. Provide all required insurance and performance and payment bonds.
25. Remove the balance of construction debris off site in accordance with all applicable
rules and regulations of those jurisdictions having authority.
Section 5.2 Reserved
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Section 5.3 Subcontracting and Administration.
5.3.1. It is contemplated that all or substantially all of the constr uction of the
Project will be carried out by trade Subcontractors and that th ose trade subcontracts will
be awarded through the competitiv e bid process contemplated in Section 4.4 . The
Contractor shall enter into a written agreement with each subco ntractor. The trade
subcontractors will be under wr itten contract with the Contract or. All subcontracts and
agreements for the supply of equipment or materials awarded for t h e Project shall be
fixed-price contracts unless othe rwise expressly authorized by the Department, in writing.
It is understood and agreed, howev er, that certain trade packag es (such as the mechanical
and electrical packages) may be awarded on a design-assist or d esign-build basis and
that such trade packages may be awarded on such other basis sub ject to the
Department’s consent as to the bidding procedures and economic structure with regard to
those packages. The Contractor and its affiliates may not carry out trade work with its
own forces without the Department 's written permission, which p ermission may be
withheld or conditioned by the Department in its sole and absol ute judgment.
5.3.2. In addition to the open book reporting requirements set forth i n Section
5.10, the Contractor shall provide to the Department a copy of all quotes or proposals
submitted by potential subcontractors.
5.3.3. The Contractor shall develop a pur chasing strategy to address t he expedited
schedule and conditions of this P roject and shall include appro priate provisions in the
subcontracts to minimize the cost impact associated with such c onditions. Such strategies
may include, but are not limited to: (i) obtaining from subcontractors’ unit price quotes for
typical coordination it ems; (ii) setting aside allowances for coordination work; and (iii)
such other techniques as may be employed by the Contractor.
5.3.4. The Contractor shall carefully d ocument its procedures for maki ng
available bid packages to potential bidders, the contents of ea ch bid package, discussions
with bidders at any pre-bid mee tings, bidders’ compliance with bid requirements, all
bids received, the Contractor’s e valuations of all bids, and th e basis for the Contractor’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 Contr actor’s adherence to all require ments set forth in the
Agreement including, without limitation, affirmative action requirements and subcontracting
requirements.
5.3.5. The Department may, in its sole discretion, reject any or all b ids and
proposals received for any bid p ackage, and may require the Con tractor to obtain new or
revised bids or proposals.
5.3.6. The Department may, in its sole discretion, direct the Contract or t o accept
a bid from a qualified bidder other than the bidder to whom the Contractor recommends
award of a subcontract or supply agreement. If the Department chooses this option, it shall
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issue a Change Order to the Cont ractor for any di fference betwe en the cost of the
subcontract or supply agreement aw arded and the bid price of the Subcontractor or supplier
recommended by the Contractor, but without any adjustment to th e Construction
Management Fee.
5.3.7. The Department must approve all Subcontractors and suppliers. T he
Department may elect to review t he form of any subcontract or a greement with a material
supplier to ensure that such cont ract incorporates the contract ual provisions required by
this Agreement.
5.3.8. The Contractor shall manage the Change Order process with all
Subcontractors to verify validity, purpose, and cost.
5.3.9. The Contractor must contract for provision of all services and materials for
the Project (other than Self-Performed Work which must be autho rized in advance and
in writing by the Department) via written subcontracts or, for contracts requiring
provision of materials or equipm ent only, and not labor, via wr itten supply agreements.
All subcontracts and supply agreem ents shall include the follow ing provisions:
5.3.9.1 that, to the extent of the work or supply within the agreement ’s scope, the
Subcontractor or supplier is bound to the Contractor for the performance of all obligations
which the Contractor owes the Department under the Agreement;
5.3.9.2 that the subcontractor or supplier is not in privity with the D epartment and
shall not seek compensation directly from the Department on any third-party beneficiary,
quantum meruit, or unjust enrich ment claim, or otherwise, excep t as may be permitted by
any applicable mechanic’s lien law;
5.3.9.3 that the Department is a third- party beneficiary of the subcon tract or
supply agreement, entitled to enforce any rights thereunder for its benefit;
5.3.9.4 that the subcontractor or supplier consents to assignment of its agreement to
the Department, at the Department's sole option, if the Contractor is terminated for default;
5.3.9.5 that the subcontractor or supplier shall comply immediately wi th a written
order from the Department to the Contractor to suspend or stop work;
5.3.9.6 that the subcontractor or supplier shall maintain records of a ll Work it is
requested or authorized to do on a time and material or cost-pl us basis, or with respect to
claims that it has asserted on a time and materials or cost-plu s basis, during the Project
and for a period of time specified in the General Conditions Co st and requiring the
subcontractor or supplier to make those records available for r eview or audit by the
Department during that time;
5.3.9.7 that the subcontractor shall obtain and maintain, throughout t he Project,
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workers' compensation insurance in accordance with the laws of the District of Columbia
(This provision is not applicable to supply agreements);
5.3.9.8 that, if the Department terminates the Agreement for convenien ce, the
Contractor may similarly terminate the subcontract or supply ag reement for convenience,
upon written notice to the Subcontractor or supplier, and that the subcontractor or supplier
s h a l l , i n s u c h a c a s e , b e e n t i t l e d o n l y t o t h e c o s t s s e t forth in Article 6 of the Standard
Contract Provisions (Construction Contracts);
5.3.9.9 that the Department shall have the right to enter into a contr act with the
subcontractor or supplier for the same price as its subcontract or supply agreement price
less amounts already paid, if the Contractor files a voluntary petition in bankruptcy or
has an involuntary petition in bankruptcy filed against it;
5.3.9.10 that the subcontractor or supplier shall not be entitled to pa yment for
defective or non-conforming work, materials or equipment, and s hall be obligated
promptly to repair or replace non-conforming work, materials or equipment at its own
cost;
5.3.9.11 a provision requiring that Subcont ractors and suppliers promptl y pay
subcontractors and suppliers at lower tiers, imposing upon the Subcontractors and
suppliers a duty to pay interest on late payments, and barring reimbursement for interest
paid to lower tier subcontractors or suppliers due to a subcont ractor’s or supplier’s
failure to pay them in timely fashion;
5.3.9.12 a provision requiring that all S ubcontractors at all tiers comp ly with the
provisions of Article 12 of thi s Contract (Economic Inclusion G oals); provided, however,
that the Contractor may, in its reasonable discretion impose a diffe rent LSDBE
subcontracting goal on some or all of its subcontractors; provi ded, further, however, that
nothing in this provision shall be deemed to excuse the Contractor from using its best efforts
to achieve the LSDBE subcontracting goal on an aggregate basis for the Project;
5.3.9.13 a provision which allows the Contractor to withhold payment from the
subcontractor if the subcontract or does not meet the requiremen ts of the subcontract;
5.3.9.14 lien and claim release and waiver provisions substantially identical to those
in this Agreement.
5.3.10. Within seven (7) calendar days of receiving any payment from th e
Department that includes amounts attributable to Work performed or materials or
equipment supplied by a subcontra ctor or supplier, the Contract or shall either pay the
subcontractor or supplier for it s proportionate share of the a mount paid to the Contractor
for the subcontractor’s or suppl ier’s Work or materials or equi pment, or notify the
Department and the subcontractor or supplier, in writing, of th e Contractor’s intention to
withhold all or part of the payment and state the reason for the withholding. All monies
paid to the Contractor under the Agreement shall be used first to pay amounts due to
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subcontractors or suppliers supplyi ng labor or materials for th e Project and only money
remaining after such payments are made may be used for other items such as the
Construction Management Fee. Moni es paid by joint check shall b e deemed to have been
paid fully to the Subcontractor o r supplier named as a joint pa yee, unless the Department
agrees otherwise in writing. Any interest paid to Subcontractor s or suppliers because the
Contractor has failed to pay them in timely fashion shall not b e reimbursable as part of the
Cost of the Work.
5.3.11. The Contractor shall not enter i nto any profit sharing, rebate, or similar
arrangement with any Subcontract or or supplier at any tier with respect to the Project or
the Work to be carried out for the Project.
5.3.12. . The Contractor shall not substitute or replace any Subcontractor or supplier
approved by the Department without the Department's Contracting Officer and Department
of Small and Local Business Development (“DSLBD”) prior written consent.
5.3.13. The Department has the right to contact subcontractors or suppl iers at all
tiers, or material or equipment suppliers directly to confirm amounts due and owing to them
or amounts paid to them for Work on the Project, and to ascertain from the Subcontractors or
suppliers at all tiers their projections of the cost to complet e 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.
5.3.14. 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 Contractor 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
Contractor by joint check. If the payment was already made to the contractor, the joint check
be for future payments (if any).
5.3.15. The Contractor shall be required to provide an evaluation of ea ch of its
subcontractors’ performance by co mpleting and submitting to the Department the
Subcontractor Performance Evaluation Form set forth as Exhibit N, as follows:
(a) Within ninety (90) days of initiating the Construction Phase; and
(b) Within thirty (30) days after Final Completion of the Project.
5.3.16. The Contractor must provide, for the CO's approval, a certificate of insurance
for each subcontractor before such subcontractor begins work.
Section 5.4 Weekly Progress Meetings & Schedule Updates.
The Contractor shall schedule and conduct, at a minimum, weekly progress meetings
following a Contractor generated agenda at which the Department , the A/E, the Program
Manager, the Contractor, and appr opriate Subcontractors can dis cuss the status of the Work.
The Contractor shall prepare and promptly distribute meeting minutes. In addition, the
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Contractor 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 devel oping delays, regardless of the ir cause, and reflect the
Contractor’s best projection of t he actual date by which Substa ntial Completion and Final
Completion of the Project will be achieved. Via a narrative statement (not merely a critical path
method schedule), the Contractor shall identify the causes of any potential delay and state what,
in the Contractor's judgment, must be done to avoid or reduce that delay. The Contractor shall
point out, in its narrative, cha nges that have occurred since t he last update, including those
related to major changes in the scope of work, activities modified since the last update, revised
projections of durations, progres s and completion, revisions to the schedule logic or
assumptions, and other relevant changes. Any significant varian ce from the previous schedule
or update shall also be identified in a narrative, together wit h 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 ext ension 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 n o t b e r e g a r d e d a s t h e
Department’s agreement that the Contractor may have an extension of time, or as a waiver of
any of the Department’s rights, b ut merely as the Contractor’s representation that, as a matter
of fact, Substantial Completion or Final Completion of the Project may not be completed by the
agreed upon date in the Project Schedule. Changes to the schedu led 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 Contractor shall provide wri tten 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. Such written report shall include the following elements:
5.5.1. Construction Progress Update. Each monthly update shall contain a
narrative description of the Proj ect progress and a critical pa th method schedule in
Primavera format, including any plans to correct defective or d eficient work or for
time lost due to delays.
5.5.2. Cost Update. The monthly update shall refl ect, by GMP line item, the
original line item amount, app roved, pending, and projected Cha nge Order amounts,
the cost incurred to date, the p rojected cost to complete the W ork of the line item, and
any variance between the actua lly approved budgeted balance of the line item and the
projected cost to complete. A clear distinction must be made be tween approved
Change Orders and those merely requested or anticipated. The re port shall explain
all variances including “buy-outs” or final actual costs includ ing those below their
respective Guaranteed Maximum Pr ice line item. In addition, the report must disclose
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any instances in which the Contr actor has transferred amounts f rom one line item to
another, or from the Contingency to any other line item. Neithe r submission of, nor the
Department's failure to reject a n update reflecting that the pr ojected cost to complete
the Project exceeding the GMP will operate to increase the GMP or w aive the
Department's right to enforce the GMP. If the report reflects b udget overruns, it must
also include a recovery plan.
5.5.3. Economic Inclusion Report. The monthly report shall include a detailed
summary of the Contractor’s efforts and results with respect to the economic inclusion
goals set forth in this Agreement. Such report shall be in a fo rmat acceptable to the
Department and shall include, at a minimum: (i) the Contractor’ s overall performance
with respect to the goals; (ii) a listing of subcontracts and a greements with material
suppliers during the month and the percentage of those subcontr acts and agreements
with material suppliers awarded to LSDBEs; (iii) a listing of s ubcontracts during the
month and the estimated percenta ge of the labor hours to be wor ked by District of
Columbia residents pursuant to those subcontracts; and (iv) a d escription of the major
subcontracting and supply opportunities that will be solicited during the next three
(3) months and the actions being taken to meet the subcontracting goals.
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 expla ined in the monthly
report. If there are no such changes, the report shall so state.
5.5.5. Quality Assurance Report. The monthly report shall include a detailed
summary of the steps that are being employed to ensure quality construction and
workmanship. Each report shall specifically address issues that were raised by the
Department and/or its Program Man ager during the prior month an d outline the steps
that are being taken to address such issues.
5.5.6. Progress Photos. The monthly report shall include updated progress
photos that shall detail changes in the Work during the month.
5.5.7. Daily Log. The Contractor shall also maintain a daily log containing a
record of weather, subcontractors working on the site, number o f 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 A/E and the Program Manager, and on a monthly basis a copy of the
log shall be submitted to the Department.
5.5.8 Two Week Look Ahead Schedule. Upon commencement of initial
construction activities, the Contractor shall provide on a weekly basis a Two Week Look
Ahead Schedule. The Two Week Look Ahead Schedule shall be a suf ficient detail to
allow the Department to fully understand the anticipated to be on going and complete.
Section 5.6 Cost Control System.
The Contractor shall use a system of cost control for the Work in a format consistent with
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the GMP Drawings & Specifications and approved by the Departmen t, which shall include,
without limitation, regular monitoring of actual costs for activities in progress and estimates for
uncompleted tasks and proposed c hanges. The Contractor shall id entify variances between
actual and estimated costs and report the variances to the Department and the Program Manager
at regular intervals.
Section 5.7 Key Personnel.
5.7.1. To carry out its duties, the C ontractor shall provide at least t h e k e y
personnel identified in Exhibit E to this Agreement (“Key Personnel”), who shall carry
out the functions identified in Exhibit E. Among other things, the Key Personnel shall
include: (i) the Project Executive; (ii) the Field Superintendent; (iii) the Project Manager
who will supervise the Project; (iv) the individual that will m anage quality control and
interact with the Department’s quality control representative ( Safety/Quality
Assurance/Quality Control Manager). It is contemplated that the Key Personnel will
work from the pre-construction stage throughout the completion of the construction
work. The Contractor’s obligatio n to provide adequate staffing is not limited to
providing the Key Personnel but is determined by the needs of t he Project. The
Contractor shall not replace any of the Key Personnel without t he 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 separ ation from the
employment of the Contractor or any affiliate of the Contractor, then the Contractor shall
promptly notify the Department ’s Contracting Officer and propos e a replacement
acceptable to the Department. The Department shall be entitled to complete information
before approving such replacement, including, but not limited to, a current resume of the
proposed replacement to include qualifications and experience.
5.7.2. Certain members of the Contractor’s Key Personnel shall be subj ect to
replacement fee for their removal or reassignment by the Contractor. Those members of
the Contractor’s Key Personnel subject to the replacement fee as indicated in the Project
Summary Section of this Agreement shall be identified in Exhibit E as subject to the
replacement fee provision. In the event there is no delineatio n in Exhibit E of those
members of the Contractor’s Key Personnel subject to the replac ement fee provision of
this Agreement, then all of the Key Personnel shall be subject to the replacement fee
provision of this Agreement.
5.7.3. Key Personnel Removal or Replacement Disincentive. If the
Contractor removes or reassigns one of the Key Personnel (exclu ding, however,
instances where such personnel become una vailable due to death, disabilit y, or
separation from the employment of the Contractor or any affilia te of the Contractor
without the prior written consent of the Department's Contracti ng Officer, the
Contractor shall pay to the Department the sum of $25,000 for e ach replacement as a
replacement fee and not as a penalty, to reimburse the Department for its administrative
costs arising from the Contractor’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 inter nal administrative costs. In a ddition, the Department
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shall have the right, to be exercised in its sole discretion, to remove, replace or to reduce
the scope of services of the Contractor in the event that a member of the key personnel
has been removed or replaced by the Contractor without the cons ent of the
Department’s Contracting Officer. In the event the Department e xercises the right to
remove, replace or to reduce the scope of services of the Contr actor, the Department
shall have the right to enforce the terms of the Agreement and to keep-in-place those
members of the Contractor's team not removed or replaced and the remaining members
shall complete the services required under the Agreement in con junction with the new
members of the Contractor's team approved by the Department.
Section 5.8 Qualified Personnel/Cooperation.
The Contractor shall employ on the Project only those employees and subcontractors who
will work together in harmony and who will cooperate with one a nother on the Project. The
Contractor 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 inappropria tely, the Contractor shall
promptly comply.
Section 5.9 Warranty.
The Contractor shall provide assistance to the Department and the Client Agency during
any applicable warranty period. The Contractor warrants to the Department that materials and
equipment furnished under the Co ntract Documents will be of goo d 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 permitte d, and that the Work will confo rm to the requirements of the
Contract Documents. The Contractor’s warranty excludes remedies for damage or defect caused
by abuse, modifications not executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal w ear and tear from normal usage. The Contractor shall use
commercially reasonable efforts to schedule a joint inspection of the Project during the eleventh
month after Substantial Completion is achieved. During such ins pection, the Contractor and a
representative of the Department shall walk the Project to identify any necessary warranty work.
Section 5.10 Open Book Reporting.
The Contractor shall maintain an open book reporting system wit h the Department,
allowing the Department or its consultants access to the Contra ctor’s Subcontractors and
material suppliers, invoices, pur chase orders, Change Order est imates, records for Self-
Performed Work, and other relevant 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 instru ctions or directions shall be given only to the Contractor.
Section 5.11 Claims for Additional Time
5.11.1. Time is of the essence of this Agreement. The Project must be
Substantially Complete no later than the Substantial Completion Date set forth within the
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Project Information Section above.
5.11.2. The Contractor will perform the Work so that it shall achieve Substantial
Completion by the Substantial Completion Date. Unless the failu re to achieve Substantial
Completion by the Substantial Completion Date is a result of an Excusable Delay, as
defined in Section 5.11.3 below, the delay shall be d eemed Non-Excusable and the
Contractor shall not be entitled to an extension of time. Witho ut limiting the generality of
the foregoing, delays for the f ollowing reasons shall be regard ed as Non-Excusable and
shall not entitle the Contractor to an extension of time:
5.11.2.1 Suspensions of work; Delays due to job site labor disputes, work stoppages;
5.11.2.2 Delays due to adverse weathe r, unless the Contractor establishes that the
adverse weather was of a nature and duration in excess of avera ges established by data
from the U.S. Department of Commerce, National Oceanic and Atmo spheric
Administration for the Project locale for the ten (10) years pr eceding the effective date
of the Agreement. For purposes of this clause, weather shall on ly 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 mont h in question. Such determinati ons shall be made based on
the number of rain/snow days or t he cumulative precipitation to tal for the month in
question. Notwithstanding the foregoing, named storms shall conclusively be deemed
“adverse”;
5.11.2.3 Delays due to the failure of the Contractor or Subcontractors or material
suppliers at any tier to perform in timely or proper fashion, w ithout regard to concepts of
negligence or fault; or
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 Con tract Provisions (Construction Contracts), or Hazardous
Materials Remediation shall be deemed an Excusable Delay.
5.11.3. The Contractor shall be enti tled to an adjustment in the Substantial
Completion Date due to an Excusable Delay. The term “Excusable Delay” shall mean:
5.11.3.1 Delays due to adverse weather other than those that are classi fied as a
Non-Excusable delay in accordance with Section 5.11.2.2 of this Agreement;
5.11.3.2 Delays due to acts of God, war, unavoidable casualties, civil unrest, and
other similar causes of delay t hat are beyond the control of th e Contractor; provided,
however, that in no event shall a Non-Excusable Delay or the ac tion or inaction of the
Contractor, or any of its employees, agents, Subcontractors or material suppliers be deemed
an Excusable Delay;
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5.11.3.3 Delays caused by differing Site Conditions as permitted by Art icle 4,
Section A of the Standard Contra ct Provisions (Construction Con tract), or Hazardous
Materials Remediation as contemplated in Section 5.11.2.4 of this Agreement;
5.11.3.4 Delays due to suspensions of work by the Department; or
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 Contractor
or any of its employees, agents, subcontractors or material suppliers.
In addition to the forgoing, a delay shall be deemed to be an E xcusable Delay only to the
extent that such delay: (i) warrants an extension in the Substa ntial or Final Completion
Date; (ii) has not been caused by the Contractor 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.
5.11.4. If the Contractor wishes to make a claim for an adjustment in t ime allotted
per the Project Schedule, written notice as provided herein sha ll be given to the Contracting
Officer and Program Manager. The Contractor’s claim shall inclu de an estimate of the cost
and of the probable effect of delay on the progress of the Work. In the ca se of continuing
delay, only one claim is necessary.
5.11.5. In no event shall the Contractor be entitled to an increase in the GMP, the
Preconstruction Fee, or the Cons truction Management Fee as a re sult of either an
Excusable or Non-Excusable Delay; provided, however, that to th e 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 Contractor shall be entitled to receive
its actual costs, including all direct and indirect costs, bond s and insurances resulting from
such extended duration. I t is understood that the Contractor shall not be entitled to any
profit or home office overhead, including, but not limited to, an increase in the
Construction Management Fee, on any amounts to which the Contra ctor may be entitled
pursuant to the preceding sentence.
Section 5.12 Site Safety and Clean-Up.
5.12.1. The Contractor will be required to provide a safe and efficient site, with
controlled access. As part of this obligation, the Contractor s hall be responsible for
initiating, maintaining and supe rvising all safety precautions and programs in connection
with the Project, and shall comply with the requirements set fo rth in Article 16, Section F
of the Standard Contract Provisions (Construction Contract).
5.12.2. Safety Plan. Prior to the start of construction activities, the Contractor shall
prepare a safety plan for the Construction Phase conforming to OSHA 29 CFR 1926 (such
plan, the “Safety Plan”). This Safety Plan developed by the Con tractor shall describe the
proposed separation and the specific nature of the safety measu res to be taken including
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fences and barriers that will be used and the site security det ails. This Safety Plan will be
submitted to the District for th eir review and approval prior t o the commencement of
construction. Once the Safety Plan has been approved, the Contractor shall comply with the
plan at all times during constr uction. The Contractor shall be required to revise the Safety
Plan as may be requested by the Department or the Office of the Secretary. The cost of
revising and complying with the plan shall not entitle the Cont ractor to an increase in the
GMP. The Contractor will not be permitted to commence the Const ruction Phase until the
Safety Plan is submitted and in no event shall any resulting de lay constitute an excusable
delay. Additionally, the Contractor shall comply with the requirements of Article 27, Section
A of the Standard Contract Provisions.
5.12.3. Safety Barriers/Fences. As part of its responsibility for Project safety, the
Contractor shall install such fences and barriers as may be nec essary to separate the
construction areas of the site from the public. The Contractor shall describe in the Safety
Plan the proposed separation and the specific nature of the fen ces and barriers that will be
used.
5.12.4. Site Security. The Contractor shall be responsible for site security and shall
be required to provide necessary measures to protect the site f rom unwanted intrusion,
including but not limited to soliciting the services of the Dis trict’s Protective Services
Division (PSD) to provide additional security of the site if necessary.
5.12.5. Exculpation. The right of the Department and the Office of the Secretary to
comment on the Safety Plan and the nature and location of the r equired fences and barriers
shall in no way absolve the Contractor from the obligation to maintain a safe site.
5.12.6. Temporary Power and Construction. The Contractor shall be responsible
for the cost of temporary power used during the construction of the Project, including, but
not limited to, the cost of installing such temporary wiring as may be required to bring power
to the site. The Contractor shall also be responsible for the cost of all temporary construction
necessary on the site.
5.12.7. Site Cleanliness. During the Agreement performance and/or as directed by
the Department, as the installat ion is completed, the Contracto r 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
5.13.1. Workhours. The Contractor shall comply with the Noise Ordinance an d
neither it nor its subcontractors shall undertake work on the P roject site other than at the
times and sound level permitted by the Noise Ordinance.
5.13.2. Site Office. Throughout the Project, the Contractor shall provide and
maintain a fully-equipped construction office for the Project site.
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5.13.3. Parking. The Contractor shall organize its work in such a manner so as t o
minimize the impact of its operations on the surrounding community. To the extent that the
number of workers on the site is likely to have an adverse impact on neighborhood parking,
the Contractor shall develop a pa rking plan for those individuals working on the site that is
reasonably acceptable to the Department.
5.13.4. Wheel Washing Stations. The Contractor 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.
5.13.5. Outreach Plan. The Contractor shall keep the Department informed of
the construction activities and their potential impact on the c ommunity and shall develop
a community outreach plan (the “Outreach Plan”). The Contractor shall submit the
Outreach Plan to the Department prior to its implementation whi ch shall be subject to the
Department’s review and approval.
5.13.6. Supervision. Throughout the Work, the construction office shall be
managed by personnel competent t o o v e r s e e t h e W o r k a t a l l t i m e s while construction is
underway. Such personnel shall m aintain full-time, on-site cons truction supervision and
provide daily inspections, quali ty control, monitoring, coordin ation of various trades,
record drawings, and daily work log.
Section 5.14 Close-out & FF&E.
5.14.1. A detailed list of FF&E requirements will be developed during t he
preconstruction phase and attached hereto as Exhibit L.
5.14.2. Punchlist. One week before Substantial Co mpletion, the Contractor shall
develop a punch list. Once the punch list is prepared, the Cont ractor 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 inspectio n. The Contractor shall
correct all punch list items no later than ninety (90) days aft er Substantial Completion is
achieved.
5.14.3. Warranties & Manuals. Subsequent to Substantial Completion Date and
no later than fifteen (15) days following the Substantial Compl etion Date, the Contractor
shall prepare and submit the following documentation: (i) a complete set of product manuals
(O&M), training videos, warranties, etc.; (ii) attic stock; (ii i) an equipment schedule; (iv) a
proposed schedule of maintenance for the new building; (v) environmental, health and safety
documents for the new building; and (vi) all applicable inspect ion certificates/permits
(boiler, elevator, emergency evacuation plans, health inspectio n, etc.) for the new building.
No later than thirty (30) days following the Substantial Completion Date, the Contractor shall
prepare and submit: (i) a complete set of its Project files; (i i) a set of record drawings; and
(iii) any additional documentation required by the Turnover Pro tocol Document listed in
Exhibit T.
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5.14.4. Eleven Month Walk. T h e C o n t r a c t o r s h a l l u s e commercially reasonable
efforts to schedule a joint inspection of the Project during th e eleventh month after
Substantial Completion is achieved. During such inspection, the Contractor and a
representative of the Department shall walk the Project to iden tify any necessary warranty
work.
5.14.5. Support for Initial Heating & Cooling Season. The Contractor and its
mechanical subcontractor shall provide support to the Client Ag ency, and the Department
during system start-up and in initial operation for the first h eating and cooling season after
Substantial Completion is achieved, if required.
5.14.6. Training. The Contractor shall provide tra ining to Client Agency staff on
all of the building systems, as applicable. The Contractor shall be required to schedule such
training sessions and shall use co mmercially reasonable efforts to ensure all such training
occurs prior to the Final Completion Date.
5.14.7. The Contractor shall assist Cli ent Agency in relocating FF&E and other
items as necessary within the renovated building, as well as fo r cleaning and other move-
in services as directed by the Department. The GMP shall includ e an allowance and scope
of work for these activities. This allowance is in addition to cleaning services that would
otherwise be required by the Contractor, including, but not limited to, the obligation to
deliver a broom-clean building at the end of construction.
Section 5.15 Salvaged and Stored Items.
The Contractor shall be responsib le for salvaging and storing a ll 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 Sediment and Erosion Control.
The Contractor shall be responsible for installing sediment and erosion control measures,
inclusive of, but not limited t o: silt fencing, inlet protectio n, stabilized construction entrances,
and other control measures.
Section 5.17 Quality Control.
5.17.1. General Obligation. The Contractor shall be res ponsible for all activities
necessary to manage, control, and document the Work to ensure c ompliance with Contract
Documents. The Contractor’s res ponsibility includes ensuring ad equate quality control
services are provided by the Cont ractor’s employees and its sub contractors at all levels.
The work activities shall include safety, submittal management, document reviews,
reporting, and all other functions related to quality construction.
5.17.2. Quality Control Plan. The Contractor shall develop a quality control plan
for the Project (the “Quality Control Plan”). A draft of the Qu ality Control Plan shall be
submitted to the Department and shall be subject to the Departm ent’s review and approval.
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The Quality Control Plan shall be tailored to the specific prod ucts/type of construction
activities contemplated in the Design Development Documents, and in general, shall include
a table of contents, quality control team organization, duties/ responsibilities of quality
control personnel, submittal proc edures, inspection procedures, deficiency correction
procedures, documentation process, and a list of any other specific actions or procedures that
will be required for key elements of the Work.
5.17.3. Implementation. During the Construction Phase, the Contractor shall
perform regular quality control inspections and create reports based on such inspections
pursuant to the Quality Control Plan. These quality control rep orts shall be provided to the
Department electronically on a m onthly basis. The Contractor sh all incorporate a quality
control section in the progress meetings to discuss outstanding deficiencies,
testing/inspections, and upcomi ng work. The monthly report shal l 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.
Section 5.18 Acceleration.
Subject to the terms of this Sect ion, the Department shall have the right to direct
the Contractor to accelerate the Work if, in the reasonable jud gment of the Department: (i)
the Contractor fails to supply a sufficiency of workers or to d eliver 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 determines that either of the events specified in the preceding sentence has
occurred, the Department shall provide the Contractor with writ ten notice of such event
and the Contractor shall be requi red to provide the Department with a schedule recovery
plan (“Recovery Plan”) that is reasonably designed to address t he concerns raised in such
notice within three (3) days aft er receipt of such notice. If t he Department and the
Contractor are unable to agree on the terms of the Recovery Pla n within five (5) days
after the issuance of the notice (i.e. within forty-eight (48) hours after the receipt of the
proposed Recovery Plan), the Department shall have the right to direct such acceleration
as the Department, in its reasonable judgment, deems necessary. Provided t h e Department
complies with the notice provisions of this Section, the cost of any acceleration direct ed
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 fi xed date upon which
the Client Agency plans to occupy the building, the Contractor 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 h as included sufficient funding
in the GMP in order to comply with the requirements of this Section.
Section 5.19 Corrective Action Plan.
Subject to the terms of this Sec tion, the Department shall have the right to direct
the Contractor to revise the provisions of the Quality Control Plan if, in the reasonable
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judgment of the Department, the c raftsmanship of the Work being installed fails to comply
with generally applicable industr y 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 th e event that the Department
or its Program Manager determines that a Quality Control Event has occurred, the Department
shall provide the Contractor with written notice of the occurrence of such Qualit y Control
Event, and the Contractor 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 n otice (each instance, a “Correc tive Action Plan”). If the
Department and the Contractor are unable to agree on the terms of the Corr ective Action
Plan within five (5) days after the issuance of the notice (i.e . within forty-eight (48) hours
after the receipt of the proposed corrective action plan), the Department shall have the right to
direct such corrective action meas ures as the Department, in it s reasonable judgment, deems
necessary. Such directive may in clude adjustments to the proced ural provisions set forth in
the Quality Control Plan and/or may impose additional requirements on the manner in which
Work is being performed. Provided the Department complies with the notice provisions of this
Section, the cost of any such corrective action directed under this Section shall not justify
an adjustment to the GMP on the Substantial Completion Date.
Section 5.20 Use of ProjectTeam.
The Contractor shall utilize the Department’s ProjectTeam system to submit any and all
documentation required to be provided by the Contractor for the Project, including or other web-
based document management system to submit any and all document ation required to be
provided by the Contractor, incl uding, but not limited to: (i) requests for information; (ii)
submittals; (iii) meeting minutes; (iv) invoices/applications for payment (full package including
all forms required by the Department); (v) certified payrolls ( in addition to uploading via LCP
Tracker); (vi) drawings and specifications; (vii) punchlist; and (viii) other documents as may be
designated by the Department.
Section 5.20.1 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, per
Article 8 of the Standard Contract Provision, the Contractor shall enter all required information
into the Portal after selecting the applicable purchase order n umber which is listed on the
Contractor’s profile.
Section 5.21 Conformance with Laws.
It shall be the responsibility of the Contractor to perform und er the Agreement in
conformance with the Department’ s Procurement Regulations and a ll applicable laws, codes,
ordinances, regulations, rules, r equirements, orders, and polic ies of governmental bodies,
including, without limitation, the U.S. Government and the Dist rict of Columbia
government; and it is the sole responsibility of the Contractor to determin e the
Procurement Regulations, statutes, laws, code s, ordinances, regulations, ru les, requirements
and orders that apply and their effect on the Co ntractor’s obligations thereunder.
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Section 5.22 Construction Phase Deliverables.
In addition to any deliverables set forth herein, the deliverables set forth on Exhibit C
are required during the Construction Phase.
Section 5.23 Close-Out Deliverables.
The deliverables set forth in Exhibit D are required during the Project’s Close-Out and
prior to Final Payment, to include, but not limited to:
a) A complete set of the CMAR’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) All other files and requirements outlined in the Turnover Proto col Document
(Exhibit T).
Section 5.24 Licensing, Accreditation, and Registration.
The Contractor 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 st andards necessary for the perfo rmance of the Agreement.
Without limiting the generality of the foregoing, all drawings shall be signed and sealed by a
professional architect or engineer licensed in the District of Columbia.
Section 5.25 Protection of Existing Elements.
The Contractor shall ensure the protection of all existing feat ures, public utilities, and
other existing structures duri ng construction. The Contractor s hall ensure the protection of
existing, site improvements, trees and shrubs from damage durin g construction. Protection
extends to the root systems of existing vegetation. The Contractor shall not store materials or
equipment, or drive machinery, within drip line of existing trees and shrubs.
Section 5.26 Hazardous Materials. The Contractor’s scope of work includes the abatement
and removal of hazardous materials found anywhere on or within the Project site. In performing
such work, the Contractor shall c omply with all laws, including , without limitation, the
requirements of the Environmental Protection Agency and all jurisdictional agencies and all laws
relating to safety, health welfa re, and protection of the envir onment, in removing, treating,
encapsulating, passivating, and/or disposing of hazardous mater ials, including, but not limited
to, removal, treatment, encapsulation, passivation, and/or disposal of the hazardous materials. If
any notices to governmental authorities are required, the Contractor shall also give those notices
at the appropriate times. The Contractor shall ensure abatement subcontractors and disposal sites
are appropriately licensed and qualified. In addition, the Cont ractor shall ensure that any
subcontractors involved in the abatement of hazardous materials maintain a contractor’s
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pollution legal liability insurance policy of at least Two Mill ion Dollars ($2,000,000) for the
duration of the Project and a period of ten (10) years after Substantial Completion of the Project,
and that any disposal site to which hazardous materials are tak en carries environmental
impairment liability insurance for the duration of the Project and a period of ten (10) years after
Substantial Completion of the Project. The Contractor’s obligations under this Section 5.26 shall
include signing (as the agent for the Department) any manifests required for the disposal of
hazardous materials.
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Article 6 - DESIGNATED REPRESENTATIVES
Section 6.1 Department’s Designated Representative.
The Department designates the individual(s) identified in Exhibit H as its representative
with express authority to bind th e Department with respect to a ll matters requiring the
Department’s approval or authorization. Subject to the limitati ons on their authority specified
in Exhibit H, these representative(s) shall have the exclusive authority to make decisions on
behalf of the Department concerning estimates and schedules, construction budgets, changes in
the Work, and execution of Change Orders 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 Contractor. In o rder for the Department to
effectively manage the Project a nd assure that the Contractor d oes not receive conflicting
instructions regarding the Work, the Contractor shall promptly notify the Department’s
representative upon receiving any instructions or other communication in connection with the
Contractor’s Work from any employ ee of the Department or other purported agent of the
Department other than the Department’s designated representative.
Section 6.2 Contractor’s Designated Representative.
The Contractor designates the individual(s) identified in Exhibit G, as its representative
with express authority to bind the Contractor with respect to a ll matters requiring the
Contractor’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, it is agreed that the
Contractor’s designated representative will devote his or her t ime exclusively to the Project,
unless the Department consents to a reduction in time. All services provided by the Contractor
shall be performed in accordance with the highest professional standards recognized and
adhered to by contractors 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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Article 7 - COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION
PHASE SERVICES
Section 7.1 Compensation
7.1.1. The Department shall compensate and make payments to the Contra ctor for
preconstruction services in accordance with Article 7 and Artic le 10 of this Contract. For
preconstruction services, the Cont ractor’s compensation shall b e as set forth in the Project
Information Section of this Contract (the “Preconstruction Fee” ). The Preconstruction Fee
shall be the Contractor’s sole compensation for Preconstruction Phase Services. The
Preconstruction Fee shall include, but not be limited to, amoun ts necessary to compensate the
Contractor for:
Profit;
Home Office Overhead;
Cost of preconstruction staff;
Fringe Benefits associated with staff costs;
Payroll taxes associated with staff costs;
Staff costs associated with obt aining permits and approvals dur ing the
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 7.2 Payments
7.2.1. Payments for Preconstruction Phase Services shall be made month ly over the
anticipated duration of the Preconstruction Phase following pre sentation and acceptance of
the Contractor’s invoice and sh all be in proportion to services performed. In no event,
however, will the aggregate of the Contractor’s monthly invoice s for Preconstruction Phase
Services exceed the Preconstruction Fee.
7.2.2 Payments are due and payable in accordance with Article 10 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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Article 8 - COMPENSATION FOR CONSTRUCTION PHASE SERVICES
Section 8.1 Compensation.
8.1.1. The Department shall compensate and make payments to the Contra ctor
for Construction Phase Services i n accordance with this Article 8 and Article 10. For the
Construction Phase Services, the Contractor’s compensation shall be as set forth in the
Project Information Secti on of this Agreement (the “Construction Management Fee”).
The Contractor acknowledges and agrees that the percentage of t he total amount of the
Construction Management Fee set forth in the Project Informatio n Section of this
Agreement is at risk (the “At Risk Portion”), and the Contracto r shall only be entitled to
the At Risk Portion as set forth below. Unless and until the Co ntractor’s entitlement to
any subset of the At Risk Portion is determined by the Departme nt, the Contractor shall
only be entitled to bill for th e portion of the Construction Ma nagement Fee that is not at
risk (the “Base Construction Management Fee”). The Base Construction Management Fee
shall be billed in accordance with Article 10, to be paid in eq ual monthly installments
over the anticipated duration of the Constr uction Phase. To the extent t hat the duration
of the Agreement is extended, the then remaining amounts of the Base C onstruction
Management Fee will be re-allocated such that the then existing portion of the Base
Construction Management Fee shall be evenly spread over the the n remaining duration of
the Construction Phase.
8.1.2. 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) day s after approval and full
execution of this Agreement, the Department shall appoint a committee that will determine
entitlement to the Award Fee P o o l ( s u c h c o m m i t t e e , t h e “ A w a r d Fee Evaluation
Committee”). The Award Fee Evaluation Committee will consist of : (i) the Department’s
Deputy Director for Capital Construction; (ii) a senior represe ntative from Client Agency;
and (iii) a senior member of the Program Management team that is not involved in the day-
to-day management of this Project that is acceptable to both Parties.
8.1.3. The Contractor may earn th e At-Risk Portion of the Construction
Management Fee in accordance with Exhibit M.
Section 8.2 Lump Sum General Conditions Cost.
The Contractor 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 C onditions (such amount, the
“Lump Sum General Conditions Cost”). If, as a result of any Cha nge Order(s) or Change
Directive(s): (i) the Project dur ations extends 30 days or more beyond the Substantial
Completion Date; and (ii) the Contractor 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
Contractor, its Subcontractors, materialmen, consultants or anyone making claims thereunder, the
Contractor may request a Change Order to adjust the Lump Sum General Conditions Cost. To
the extent the Contractor incurs Costs of General Conditions in excess of the Lump Sum General
Conditions Cost, the Contractor s hall not be entitled to reimbu rsement for such amounts unless
the Department authorizes, in writing, an increase to the Lump Sum General Con ditions Cost.
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Nonetheless, in such an event, if the Contractor exceeds the Lump Sum General Conditions Costs,
the Contractor shall continue to be required to adequately staff the Project.
Section 8.3 RESERVED.
Section 8.4 Project Budget.
The Department has established a budget for the Project as set forth in the Information
Section of this Agreement (such budget, the “Project Budget”). Such Project Budget includes
any and all amounts which may be due to the Contractor pursuant to this Agreement, and in no
event shall the Contractor be entitled to recover more than the Project Budget unless the
Contractor is authorized to exceed the Project Budget by the Department in advance and in
writing.
Section 8.5 No Adjustments to Fee.
It is the Department’s intent to engage the Contractor to devel op a GMP that meets the
design documents set forth in Exhibit A by the Client Agency and the Project Budget as set forth
herein (i.e. built to budget), to allow for Substantial Completion of the Work to be achieved no
later than the Substantial Completion Date. The Contractor shal l be entitled to an adjustment to
the Construction Management Fee at the time the GMP is establis hed 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 Project Budget 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) requires the Contractor’s services at the Pro ject beyond May 22, 2026. With
regard to Change Orders issued after the GMP is established, the Contractor shall be entitled to an
increase in the Construction Mana gement Fee to the extent, and only to the extent, that: (i) the
Department has added a new progr ammatic element to the Project; or (ii) the Department made
additions to the GMP scope which (other than punchlist or warranty work) require the Contractor’s
services at the Project to extend 30 days or more beyond the Substantial Completion Date.
Section 8.6 Markup on Trade Work.
The maximum markup for change order work shall be in accordance with Section 17.11.
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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 in curred by the Contractor in the
proper performance of the Work and shall include only the following:
9.1.1. Payments made by the Contractor to Subcontractors and suppliers , other
than design subconsultants, but only in accordance with the sub contracts and supply
agreements;
9.1.2. All amounts due to the Contr actor under the terms of the Department's
written authorization for the Cont ractor to perform any portion of the Work as Self-
Performed Work. If authorization for the Contractor 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 Contra ctor, while engaged in approved
Self-Performed Work, together wit h contributions, assessments, payroll taxes, or fringe benefits
required by the laws or applicable collective bargaining agreements.
(b) Incorporated Materials. The cost, net of trade discounts, of all materials,
products, supplies and equipment incorporated into the Self-Performed Work, including, without
limitation, costs of transportation and handling.
(c) Unincorporated Materials. The cost of materials, products, supplies, and
equipment not actually installed or incorporated into the Self- Performed Work, but required to
provide a reasonable allowance for waste or spoilage, subject to the Contractor's agreement to turn
unused excess materials over to t he Department at the completio n o f t h e P r o j e c t o r , a t t h e
Department's option, to sell the material and pay the proceeds to the Department or give the
Department a credit in the amount of the proceeds against the Cost of the Work.
9.1.3. Royalty and license fees paid for use of a design, process or p roduct, if its
use is required by this Agreement or has been approved in advance by the Department;
9.1.4. Fees for obtaining all required approvals or permits associated with any
abatement, demolition, utilities abandonment, and utility reloc ation (including utility
connection fees), including any and all building and/or trade permits fees;
9.1.5. All performance and payment bonds and general liability insuran ce. The
Department may, in its sole disc retion, allow the Contractor to recover the
costs of subcontractor default i nsurance at a mutually agreed u pon rate in lieu of trade-
level bonds, provided that such insurance be approved by the De partment in advance and
after being presented with a cost-benefit analysis of such use;
9.1.6. All fees and other costs necessarily incurred to carry out test ing and
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inspection required by the Agreement or applicable laws, or oth erwise to maintain proper
quality assurance. The costs the Contractor 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 establish es that the Work tested was
defective or otherwise failed to satisfy requirements set forth in the Agreement, in which
case the Contractor shall pay the costs, without reimbursement;
9.1.7. All bonds to jurisdictional agenci es (utilities, stormwater man agement,
land disturbance, and grading);
9.1.8. The Lump Sum General Conditions Cost; and
9.1.9. Costs of repairing or correcting damaged or nonconforming Work
executed by the Contractor, Subcontractors or suppliers, provid ed that such damaged or
nonconforming Work was not caused by negligence or failure to f ulfill a specific
responsibility of the Contractor, and only to the extent that the cost of repair or correction
is not recoverable by the Contract or from insurance, sureties, Subcontractors or
suppliers. It is understood that the cost of repairing, correcting damaged or nonconforming
Work that was Self-Performed s hall not be reimbursable in any e vent.
Section 9.2 Lump Sum General Conditions.
The Contractor’s Lump Sum Gener al Conditions Cost shall be the extent of what the Contractor
is entitled to recover for the cost of General Conditions. Gene ral Conditions may include, but are
not limited to:
a. Cost of construction staff;
b. Fringe Benefits associated with construction staff;
c. Payroll taxes and payroll insurance associated with construction staff;
d. Staff costs associated with obtaining permits and approvals;
e. Out-of-house consultants, incl uding, but not limited to, permit expeditors, safety
managers, and schedulers;
f. Job vehicles;
g. The field office(s) for the CMAR and Department, including, but not limited to: (i)
trailer purchase and/or rental; (ii) field office installation, relocation and removal;
(iii) utility connections and charges during the Construction P hase; (iv) furniture;
and (v) office supplies;
h. Office equipment including, but not limited to: (i) computer hardware and software;
(ii) fax machines; (iii) copying machines; (iv) voice/data system installation and use
charges; (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. Parking costs for the construction staff;
n. Salting sidewalks and shoveling snow on sidewalks that surround the site; and
o. Exterior site fencing, fence wrapping, and construction signage.
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Section 9.3 Costs No t 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 reimbursabl e. In particular, but without
limitation, the Cost of the Work does not include any of the following:
9.3.1 Any personnel or labor costs oth er than those provided for in Section 9.1.2;
9.3.2 Fees for any permits or licenses the Contractor requires to con duct its general
business operations;
9.3.3 Capital expenses and interest on capital employed for the Work;
9.3.4 Direct or indirect costs of any kind, except those expressly included in Section 9.1;
9.3.5 Sales or use taxes, unless the Contractor establishes that appl icable law requires
payment of such taxes;
9.3.6 Costs due to the errors or omissions of the Contractor or its S ubcontractors or
suppliers at all tiers, negligent or otherwise;
9.3.7 Costs dues to breach of the Agreement by the Contractor or its Subcontractors or
material suppliers at all tier s, including, w ithout limitation, costs arising from
defective or damaged Work or its correction, disposal of materi als or equipment
erroneously supplied, and repairs to property damaged by the Co ntractor or its
Subcontractors or material suppliers at all tiers;
9.3.8 Any costs incurred in performing work of any kind before Precon struction NTP,
unless specifically authorized by the Department in advance and in writing;
9.3.9 The cost of home or regional o ffices, it being understood that compensation for
such costs included in the Construction Management Fee and Award Fee.
Section 9.4 Discounts, Rebates And Refunds.
9.4.1 Cash discounts obtained on payments made by the Contractor shal l accrue to
the Department if: (i) before ma king such payment(s), the Contr actor included
them in an Application for Payment and received payment therefo r from the
Department; or (ii) the Depart ment has deposited funds with the Contractor
with which to make such payment(s). All other cash discounts sh all accrue to
the Contractor. Trade discounts, rebates, refunds, and amounts received from sales
of surplus materials and equipmen t shall accrue to the Departme nt, and the
Contractor shall make provisions so that such amounts can be secured.
9.4.2 Amounts that accrue to the Depart ment in accordance with the pr ovisions of
Section 9.4.1 shall be credited to the Department as a deduction from the Co st of
the Work.
Section 9.5 Facilitating Tax Exempt Purchases.
The Department expects that the Project will qualify as tax-exe mpt under applicable laws.
Upon request, the Department will provide the Contractor with the necessary information relating
to the tax exemption. In the eve nt any savings are attributable to the tax-exempt status of the
Project, the Contractor shall not be entitled to share in such savings.
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Section 9.6 Accounting Records.
The Contractor shall keep full and detailed accounts and exerci se such controls as may be
necessary for proper financial ma nagement under the Agreement. The Contractor’s accounting
and control systems shall be sat isfactory to the Department. Th e Department, its representatives,
and the Department’s accountants shall be afforded access to th e Contractor’s records, books,
correspondence, instruction, drawi ngs, receipts, subcontracts, purchase orders, vouchers,
memoranda, and other data relatin g to this Project, and the Con tractor shall preserve such
documentation relating to the Pro ject for a period of three yea rs after final payment, or for such
longer period as may be required by law.
9.6.1 Before NTP, unless specifically a uthorized by a duly authorized Contracting
Officer of the Department in advance and in writing;
9.6.2 The cost of home or regional offices, it being understood that compensation for
such costs is included in the Construction Management Fee; and
9.6.3 Except as provided in Section 9.1.10 of this Agreement, costs due to the errors or
omissions of the Contractor or its Subcontractors or suppliers at all tiers, negligent
or otherwise.
Section 9.7 Excluded Cost Elements.
It is the Department’s intent th at the Contractor provide a tur nkey solution for the
implementation of the Project, and the Project Budget set herein has been developed based on such
framework. The Contractor shall advance the Project in a manner consistent with the Project
Budget with the understanding that only the following cost elem ents shall be excluded from the
Project Budget set forth herein:
9.7.1 Design by Architect/Engineer and its sub-consultants;
9.7.2 3rd Party Material Testing;
9.7.3 Commissioning;
9.7.4 3rd Party Inspections;
9.7.5 Cost of active Client Agency equipment; and
9.7.6 3rd Party Plan Review.
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Article 10 - CONSTRUCTION PHASE PAYMENTS
Section 10.1 Progress Payments.
The Contractor shall be compensated in a series of progress payments and a Final Payment,
for Work completed in accordance with the Agreement, and for wh ich proper Applications for
Payment have been submitted and approved. The amount of each pr ogress payment shall be as
follows:
The Cost of Work completed to date:
Plus Cost of Work for Pay Period x 75% of Construction Management Fee (i.e.
Construction Management Fee not at risk)
Current approved estimated
Cost of Work through Final Completion
Plus Any subset of the At-Risk Portion of the Construction Management
Fee to which the Department has determined the Contractor 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 r elated to: (i) each subcontract a nd supply agreement; (ii) the
Preconstruction Fee; (iii) the C onstruction Management Fee; (iv ) General Conditions Costs; and
(v) the Cost of the Work related to each item of Self-Performed Work, until such time as
fifty percent (50%) of the then currently budgeted cost associa ted with each such item has
been invoiced, at which point the Department may cease retainin g against such item;
provided, however, that retenti on shall not be held on the cost s of bonds, insurances, and those
elements of the general requirements which consist of a single, insulated effort such as dumpster
disposal and safety carpentry. Th e Department may elect to incr ease the retention on any trade
Subcontractor up to ten percent (1 0%) in the event the Departme nt determines that the situation
so warrants. The Department, in its sole and absolute discretio n, may elect to reduce the retainage
relating to a particular trade Subcontractor, or the Cost of th e Work related to a specific item
of Self- Performed Work to zero upon: (a) satisfactory completi on of such Work; (b) submission
of all required warranties, certifications, and operating or maintenance instructions with respect to
that Work; and (c) executi on of appropriate waivers of lien and rele ases 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 Documents Required with Application for Payment.
Each Application for Payment shall be accompanied by the Contra ctor’s job cost ledgers
in a form satisfactory to the D epartment, the Subcontractors’ a nd Suppliers’ Applications for
Payment on AIA Documents G702 a nd G703 or other form acceptable to the Department, and
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such other supporting documentati on as the Department may reaso nably request. Each
Application for Payment shall include detailed documentation of c o s t s a s a condition to
approving progress payments, but the Contractor shall neverthel ess maintain complete
documentation of the costs. An executed Release of Liens and Cl aims in the format required by
the Contracting Officer must accompany each Application for Payment.
Section 10.4 Stored Materials.
The Department shall not be required to pay for materials stor ed at the site or stored at
other locations absent prior written authorization to do so, wh ich authorization may be withheld
at the Department's sole discretion. If the Department expressly agrees to pay for materials stored at
the site but not yet incorporated into the Work, the Applicatio n for Payment may also include a
request for payment of the cost of such materials, if the mater ials have been delivered to the site,
and suitably stored. Such request s shall be documented by appro priate invoices and bills of sale.
Payment for stored materials shall also be conditioned on the C ontractor’s representation that it
has inspected the material and found it to be free from defect and otherwise in conformity with this
Agreement and on satisfactory evidence that the materials are i nsured under the builder’s risk
policy. Further, if the Contractor requests the Department to allow payments for storage of materials
offsite, the Contractor shall be required, inter alia, to agree to the execution of proper documentation
to afford the Department a secured interest in the materials upon payment.
Section 10.5 Contractor’s Certification.
Each Application for Payment shall be accompanied by the Contractor's signed
certification that:
Section 10.5.1. all amounts paid to the Contract or on the previous Application for
Payment that were attributable to subcontractor Work or to materials or equipment being supplied
by any supplier have been paid over to the appropriate subcontractors and suppliers;
Section 10.5.2. that all amounts currently sought for subcontractor Work or sup ply of
materials or equipment are currently due and owing to the subco ntractors and material or
equipment suppliers;
Section 10.5.3. that all Work, materials or equipment for which payment is soug ht is, to
the best of the Contractor's knowledge, free from defect and meets all of the requirement set forth
in the Agreement.
Section 10.5.4. that the Contractor’s subcontract s include the clauses required by
subparagraphs (1) through (4) of D.C. Official Code §2-221.02(d) (2017); and
Section 10.5.5. The Contractor shall not include in an Application for Payment amounts for
Work for which the Contractor does not intend to pay.
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Section 10.6 Lien Waivers .
Each Application for Payment shall be accompanied by written wa ivers of the right to file
a mechanic’s lien and all other claims, in a form substantially similar to Exhibit J for the
Contractor and all Subcontractors and material suppliers at all tiers who have supplied labor or
material or both for which paymen t is requested, subject only t o receipt of payment. If the
Department so requests, the C ontractor shall also submit unconditional waivers of liens for itself
and all Subcontractors and mate rial suppliers at all tiers with r e s p e c t t o W o r k o r m a t e r i a l s o r
equipment for which payment has been previously made, and addit ional forms of waiver
acknowledging receipt of final pay ment under the Agreement, and providing final release of such
liens.
Section 10.7 Warranty of Title.
By submitting an Application for Payment, the Contractor warran ts 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 t he Contractor. The Department
may require the execution of appr opriate documents to confirm t he passage of a clear title.
Passage of title shall not operate to pass the risk of loss with respect to the Work in question. The
risk o f l o s s r e m a i n s w i t h t h e Contractor until Substantial Comp letion, unless otherwise agreed
by the Department, in writing.
Section 10.8 Submission.
On the twenty-fifth day of each month the Contractor shall subm it to the Department
(with a copy to the Program Manag er) an Application for Payment , which Application for
Payment shall cover the entire month during which the Application for Payment is submitted. All
amounts formally submitted via A pplication for Payment and not disputed by the Department
shall be due and payable on the last day of the month following submission or, if that is not a
business day, on the following busi ness day. If the Contractor and Department are unable to
agree on the amounts properly due and owing, the Department sha ll pay in accordance with its
good faith determination, and the Contractor may protest and pursue a claim as provided in this
Agreement and the Standard Cont ract Provisions (Construction Contract).
Section 10.8.1 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 Contractor shall enter all r equired information into the Po rtal after selecting the applicable
purchase order number, which is listed on the Contractor’s profile.
Section 10.9 Right to Withhold Payments.
The Department will notify the Contractor within fifteen (15) d ays after receiving any
Application for Payment of any defect in the Application for Pa yment or the Contractor’s
performance, which may result in the Department’s declining to pay all or a part of the requested
amount. The Department may withhold payment from the Contractor, in whole or part, as
appropriate, if:
Section 10.9.1 the Work is defective and such defects have not been remedied; or
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Section 10.9.2 the Department has determined that the Contractor’s progress ha s fallen
behind the Project Schedule, and the Contractor fails, within t en (10) calendar
days of the Department’s written demand, to provide the Department with a realistic
and acceptable Recovery Plan in accordance with Section 5.18; or
Section 10.9.3 the Contractor's monthly schedul e update reflects that the Cont ractor has
fallen behind the Project Schedule, and the Contractor fails to include, in the
same monthly report, a realistic and acceptable Recovery Plan i n accordance with
Section 5.18; or
Section 10.9.4 the Contractor has failed to provide reports in full compliance with
Section 5.5 of this Agreement; or
Section 10.9.5 the Contractor has failed to p ay Subcontractors or suppliers pr omptly or
has made false or inaccurate cer tifications that payments to Su bcontractors 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 ther ein, or any improvements on the site, even though
the Department has paid all undisputed amounts due to the Contracto r, and the
Contractor, 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 b e
completed by the Substantial Completion Date, as required, that the unpaid
balance of the GMP would not be adequate to cover actual or liq uidated
damages arising from the anticipated delay; or
Section 10.9.8 the Department has reasonable ev idence that the Work cannot be
completed for the unpaid balance of the GMP; or
Section 10.9.9 the Contractor is otherwise in substantial breach of this Agree ment
(including, without limitation, fa ilures to comply with LSDBE U tilization
requirements; or
Section 10.9.10 the Application for Payment is i ncomplete, 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 Agreemen t, 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 Subcontractor performing portions of the Work.
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Section 10.12 Final Payment.
A final payment (“Final Payment” ) shall be made by the Departme nt to the Contractor
when: (i) Final Completion has been achieved; (ii) all delivera bles set forth in Section 5.14, and
Exhibit D have been delivered to and are accepted by the Department; (iii ) the Contractor
provides the Department a compl ete set of product manuals (O&M) , training videos, and
warranties, as applicable; and (iv) a complete final Applicatio n for Payment and a final
accounting for the Cost of the Work have been submitted by the Contractor and reviewed
by the Department and, to the ext ent the Department determines appropriate, the Department’s
accountants. The Department shall make Final Payment not more than thirty (30) days after the
Department verifies the amount of the final payment set forth i n a complete final Application for
Payment.
10.12.1 The amount of the Final Payment shall be calculated as follows:
10.12.1.1 Take the sum of the Cost of the Work substantiated by the Contr actor’s
final accounting and the Preconstruction Fee and the Construction Management Fee
as adjusted to reflect whether the goals established in Exhibit M have been met; but
not more than the GMP.
10.12.1.2 Subtract amounts, if any, for which the Department withholds pu rsuant to
the Agreement.
10.12.1.3 Subtract the aggregate of previo us payments made by the Departm ent. (If
the aggregate of previous payments made by the Department exceeds the amount due
the Contractor, the Contractor shall promptly reimburse the differe nce to the
Department).
10.12.1.4 The Final Payment shall take into account any savings accruing to the
Department or the Contractor.
10.12.2 The Department will review and report in writing on the Contrac tor’s final
accounting within 30 days after delivery of the final accountin g to the Department by the
Contractor. Based upon Department ’s determination of the Cost of the Work, and provided the
other conditions of b have been met, the Department will, within fifteen (15) days after the
Department’s determination, notif y the Contractor of any amount that the Department will
withhold and the reason s therefor. The time periods stated in this Section10.12.2 supersede those
for typical progress payments.
10.12.3 If the Department determines that the Cost of the Work is that claimed by the
Contractor, the Contractor shall be entitled to proceed in accordance with Article 3 of the Standard
Contract Provisions (Construction Contract). Pending a final resolution of the disputed amount,
the Department shall pay the Contractor the amount that the Department determines to be
appropriate.
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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, th e types of insurance specified
below. The Contractor shall submit a Certificate of Insurance to the Contracting Officer (CO)
giving evidence of the required coverage prior to commencing performance under this contract.
In no event shall any work be performed until the required Certificates of Insurance signed by
an authorized representative of the insurer(s) have been provided to, and accepted by, the CO.
The Government of the District of Columbia shall be included in all policies, where applicable
and allowable by law, required hereunder to be maintained by th e Contractor and its
subcontractors (except for worker s’ compensation and profession al liability insurance) as an
additional insureds for claims against The Government of the Di strict of Columbia relating to
this contract, with the understanding that any affirmative obli gation imposed upon the insured
Contractor or its subcontracto rs (including w ithout limitation the liability to pay premiums)
shall be the sole obligation of the Contractor or its subcontractors, and not the additional insured.
The additional insured status und e r t h e C o n t r a c t o r ’ s a n d i t s s ubcontractors’ Commercial
General Liability insurance policies shall be effected using th e 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 subcontr actors’ liability policies (except
for workers’ compensation and professional liability insurance) shall be endorsed using ISO
form CG 20 01 04 13 or its equivalent so as to indicate that su ch policies provide primary
coverage (without any right of contribution by any other insura nce, reinsurance or self-
insurance, including any deductib le or retention, maintained by an Additional Insured) for all
claims against the additional insured arising out of the performance of this Statement of Work
by the Contractor or its subcontractors, or anyone for whom the Contractor or its subcontractors
may be liable. These policies sh all include a separation of in sureds clause applicable to the
additional insured.
If the Contractor and/or its subcontractors maintain broader coverage and/or higher limits than
the minimums shown below, the District requires and shall be en titled 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 t hat 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 w ith coverage at least as
broad and approved by the CO in writing), covering liability for all ongoing and completed
operations of the Contractor and under all subcontracts, covering claims for bodily injury,
including without limitation sickness, disease or death and men tal anguish of any persons,
broad form property damage, in cluding loss of use resulting the refrom, personal and
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advertising injury, and including coverage for liability arisin g 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 ha ve limits of liability of not
less than $1,000,000 for each occurrence, and a $2,000,000 general aggregate.
The Commercial General Liability shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insured coverage using
ISO form CG 2015 0413 (or its equivalent) to The Government of the District
of Columbia
b) Coverage available to the additional insureds shall apply on a primary and non-
contributing basis as respects any other insurance, deductibles, or self-insurance
available to the additional insureds
c) A waiver of subrogation in favor of The Government of the District of Columbia
d) Any Annual Aggregate shall apply on a per location or per project basis (where
applicable)
e) Defense costs shall be in addition to and not erode the limits of liability
2. Automobile Liability Insurance - The Contractor shall provide evidence satisfactory to the
CO of commercial (business) automobile liability insurance written on ISO form CA 00 01
10 13 (or another form with coverage at least as broad and approved by the CO in writing)
including coverage for all owned, hired, borrowed and non-owned vehicles and equipment
used by the Contractor in connection with work under this agree ment, with a minimum
combined single limit of $1,000,000 for bodily injury or death and property damage,
including loss of use thereof. Such policy or policies of automobile liability insurance shall
be written on an "occurrence" (as opposed to a "claims made") basis.
Auto Physical Damage Coverage - The Contractor shall provide auto physical damage insurance
to cover "loss" to a covered "auto" or its equipment:
a) Comprehensive - Fire, lightning or explosion; theft; windstorm, hail or
earthquake; flood; mischief or vandalism; or the sinking, burni ng, collision or
derailment of any conveyance transporting the covered "auto".
b) Collision Coverage - Caused by: The covered "auto's" collision with another
object or the covered "auto's" overturn.
The Commercial Auto Liability policy shall be further endorsed to:
a. To the fullest extent permitte d by law, provide additional insu red coverage to
The Government of the District of Columbia
b. Coverage available to the additional insureds shall apply on a primary and non-
contributing basis as respects any other insurance, deductibles, or self-insurance
available to the additional insureds
c. A waiver of subrogation in favor of The Government of the District of Columbia
d. Defense costs shall be in addition to and not erode the limits of liability
e. If applicable, include Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Business Auto, Motor Carrier, and Truckers (or
its equivalent)
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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 acci dent for injury; $500,000 per
employee for disease; and $500,000 for policy disease limit.
The Workers Compensation and Employers Liability shall be further endorsed to:
a) Include a Waiver of Subrogation in favor of The Government of t he District of
Columbia.
b) Where applicable, include United States Longshore and Harbor Wo rkers
Compensation Act (USL&H)
c) Where applicable, include Jones Act Coverage for seamen or crew members on
an “if any” basis.
4. Network Security/Privacy (Cyber) Liability Insurance covering a cts, errors, omissions,
breach of contract, and violation of any consumer protection laws arising out of Contractor’s
operations or services with a limit of $2,000,000 per claim and in the aggregate. Such
coverage shall include but not be limited to, third party and f irst party coverage for loss or
disclosure of any data, includi ng personally identifiable infor mation and payment card
information, network security failure, violation of any consume r protection laws,
unauthorized access and/or use or other intrusions, infringement of any intellectual property
rights (except patent), unintentional breach of contract, negligence or breach of duty to use
reasonable care, breach of any duty of confidentiality, invasion of privacy, or violations of
any other legal protections for personal information, defamation, libel, slander, commercial
disparagement, negligent transmission of computer virus, or use of computer networks in
connection with denial of service attacks. Such coverage shall include regulatory defense
and fines/penalties in any jurisdiction anywhere in the world. Such coverage shall include
contractual privacy coverage for data breach response and crisi s management costs that
would be incurred by Contractor on behalf of The Government of the District of Columbia
in the event of a data breach including legal and forensic expenses, notification costs, credit
monitoring costs, and costs to operate a call center. Contracto r shall maintain coverage in
force during the term of this Ag reement and for an extended rep orting period of not less
than two (2) years after.
5. Professional Liability Insuranc e (Errors & Omissions) - The Con tractor 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 a pplicable retroactive date
precedes the date the Contractor first performed any profession al services for the
Government of the District of Columbia and that continuous cove rage will be maintained
or an extended reporting period will be exercised for a period of at least ten years after the
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completion of the professional se rvices. Limits may not be shar ed with other lines of
coverage.
6. Commercial Umbrella or Excess Liability - The Contractor shall provide evidence
satisfactory to the CO of commercial umbrella or excess liability insurance with minimum
limits of $10,000,000 per occurrence and $10,000,000 in the ann ual 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 limi ts. Coverage shall be primary
to any insurance, self-insurance or reinsurance maintained by T he Government of the
District of Columbia and the “other insurance” provision must b e amended in accordance
with this requirement and principles of vertical exhaustion.
7. Crime Insurance (3rd Party Indemnity) - The Contractor shall pr o v i d e a C r i m e p o l i c y
including 3rd 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 $10,000 per occurrence.
8. Environmental Liability/Contr actors Pollution Liability Insuran ce - The Contractor shall
provide evidence satisfactory to the CO of environmental liability insurance covering losses
caused by pollution or other hazardous conditions arising from ongoing or completed
operations of the Contractor. Such insurance shall apply to bodily injury, property damage
(including loss of use of damaged property or of property that has been physically injured),
clean-up costs, transit and non-owned disposal sites. Coverage shall extend to defense costs
and expenses incurred in the investigation, civil fines, penalties and damages or settlements.
There shall be neither an exclusion nor a sublimit for mold or fungus-related claims. The
minimum limits required under this paragraph shall be $2,000,00 0 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 cov erages under the policy
precedes the Contractor’s performance of any work under the Contract and that continuous
completed operations coverage will be maintained for at least ten (10) years or an extended
reporting period shall be purchased for no less than ten (10) years after completion.
The Contractor also must furnish to the CO Owner certificates o f insurance evidencing
environmental liability insurance maintained by third party tra nsportation and disposal site
operators(s) used by the Contract or for losses arising from fac ility(ies) accepting, storing or
disposing hazardous materials or other waste as a result of the Contractor’s operations. Such
coverages must be maintained with limits of at least the amounts set forth above.
The Environmental Liability policy shall be further endorsed to include The Government of the
District of Columbia as an Additional Insured.
9. Employment Practices Liability - The Contractor shall provide evidence satisfactory to the
CO with respect to the operations performed to cover the defens e of claims arising from
employment related wrongful acts including but not limited to: Discrimination, Sexual
Harassment, Wrongful Termination, Workplace Torts, "Bullying" in "any location" and "by
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any means," including the Internet, whether between employees o f Contractor or against
third parties. Employment Practices Liability coverage must sp ecifically state Third Party
Liability coverage is included. Contractor will indemnify and d efend The Government of
the District of Columbia should it be named co-defendant or be subject to or party of any
claim. Coverage shall also exte nd to Temporary Help Firms and I ndependent Contractors
hired by Contractor. The policy shall provide limits of not les s than $1,000,000 for each
wrongful act and $2,000,000 annual aggregate for each wrongful act.
10. Installation-Floater Insurance - For projects not involving str uctural alterations, the
Contractor shall provide an inst allation 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; ded uctibles will be the sole
responsibility of the contractor.
11. Sexual/Physical Abuse & Molestation - The Contractor shall provide evidence satisfactory
to the CO with respect to the services performed that it carrie s $1,000,000 per occurrence
limits; $2,000,000 aggregate of affir mative abuse and molestati on liability coverage.
Coverage should include physical abuse, such as sexual or other bodily harm and non-
physical abuse, such as verbal, emotional, or mental abuse; any actual, threatened or alleged
act; errors, omission or misconduct. This insurance requirement will be considered met if
the general liability insurance includes an affirmative sexual abuse and molestation
endorsement for the required am ounts or through a separate stan d-alone sexual abuse and
molestation policy with confirmation there are no exclusions for abuse or assault & battery
under the General Liability. So called “silent” coverage or “sh ared” limits under a
commercial general liability or professional liability policy w ill not be acceptable. Limits
may not be shared with other lines of coverage. The applicable policy may need to be
submitted to the ORM for compliance review.
Construction Projects Controlled by the District
For construction projects controlled by the District, the Distr ict will procure the following
policies with the District listed as the first named insured. S ince the District will control the
placement of the policies, the D istrict should not contractuall y bind itself to secure coverage
broader than the minimum that satisfies 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 r isk insurance, written on an “all
risk”, special causes of loss or equivalent form. Builders risk coverage will include boiler and
machinery / equipment breakdown, earthquake, and flood perils. Building ordnance and
terrorism coverage will be included.
The deductible shall not exceed $25,000 except for earthquake, flood, windstorm, water damage
or other perils at the discretion of the District and as availa ble in the insurance industry. A
deductible of $50,000 applies to Joisted-Masonry construction.
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The project limit shall equal the replacement value of the stru cture, including coverage for
property in transit and stored off premises.
At the discretion of the District, builders risk coverage will extend to soft costs and delayed
completion.
Builders risk insurance shall include the interests of The Government of the District of Columbia,
the Contractor, Subcontractors and Sub – subcontractors in the project.
C. SUBCONTRACTOR INSURANCE REQUIREMENTS
Any and all subcontractors enga ged by Contractor for work under this agreement shall be
required to have the same insured required of Contractor. Shou ld the Contractor wish to
propose different insurance requirements than outlined below, then, prior to commencement of
work by the subcontractor, the Contractor shall submit in writing the name and brief description
of work to be performed by the subcontractor on the Subcontract ors Insurance Requirement
Template provided to the Office of Risk Management (ORM). ORM w ill determine the
insurance requirements applicable to the subcontractor and promptly deliver such requirements
in writing to the Contractor. In e ither instance, the Contracto r must provide proof of the
subcontractor's required insurance prior to commencement of work by the subcontractor.
D. PRIMARY AND NONCONTRIBUTORY INSURANCE
The insurance required herein shall be primary to and will not seek contribution from any other
insurance, reinsurance or self- insurance including any deductib le or retention, maintained by
the Government of the District of Columbia.
E. DURATION. The Contractor shall carry all required insurance un til all contract work is
accepted by The Government of the District of Columbia and shal l carry listed coverages for
ten years for construction projects following final acceptance of the work performed under this
contract and two years for non-construction related contracts.
F. L I A B I L I T Y . T h e s e a r e t h e r e q u ired minimum insurance requiremen ts established by The
Government of the District of Columbia. However, it is understood that The Government of the
District of Columbia does not in any way represent that the insurance or the limits of insurance
specified herein are sufficient or adequate to protect your interests or liabilities and will not in
any way limit the contractor’s liability under this contract.
G. CONTRACTOR’S PROPERTY. Contractor and subcontractors are solely responsible for any
loss or damage to their personal property, including but not li mited to tools and equipment,
scaffolding, and temporary struct ures, rented machinery, or own ed and leased equipment. A
waiver of subrogation shall apply in favor of The Government of the District of Columbia.
H. Measure of Payment. The Government of the District of Columbia shall not make any separate
measure or payment for the cost of insurance and bonds. The Contractor shall include all of the
costs of insurance and bonds in the contract price.
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I. NOTIFICATION. The Contractor shall ensure that all policies provide that the CO shall be
given thirty (30) days prior written notice in the event of cancellation, non-renewal, or material
changes to the extent such cancellation or material changes res ults in Contractor no long
complying with the above require ments. The Contractor shall pro vide the CO with ten (10)
days’ prior written notice in t he event of non-payment of premi um. The Contractor will also
provide the CO with an updated Certificate of Insurance should its insurance coverages renew
during the contract. The Government of the District of Columbia may reasonably change the
above insurance coverage requirements during the Term by giving Contractor at least 30 days’
notice of the change. Contractor must comply, at your expense, and deliver to the CO evidence
of compliance before the change becomes effective.
J. CERTIFICATES OF INSURANCE. The C ontractor must send to CO, at least 10 days after
execution of this Agreement, cer tificates of insurance evidenci ng the required insurance
coverage and endorsements required herein. Contractor must also provide us with evidence of
renewal before the expiration date of each insurance policy. Co ntractor is responsible for
providing us with 30 days advanced written notice if the certificate of insurance by the insurer
has been canceled, reduced in c overage, or otherwise altered. Certificates of insurance must
reference the corresponding contract number. Evidence of insurance shall be submitted to:
The Government of the District of Columbia
And emailed to the attention of:
Suzi Tabot
Contracting Officer
Department of General Services
Contracts & Procurement Division
3924 Minnesota Ave, NE
Washington, DC 20019
suzi.tabot@dc.gov
The CO may request, and the Cont ractor shall promptly deliver u pdated certificates of
insurance, endorsements indicati ng the required coverages, and/ o r c e r t i f i e d c o p i e s o f t h e
insurance policies. If the insurance initially obtained by the Contractor expires prior to
completion of the contract, rene wal certificates of insurance a nd additional insured and other
endorsements shall be furnished to the CO prior to the date of expiration of all such initial
insurance. For all coverage required to be maintained after completion, an additional certificate
of insurance evidencing such coverage shall be submitted to the CO on an annual basis as the
coverage is renewed (or replaced).
K. DISCLOSURE OF INFORMATION. The Contractor agrees that The Government of the
District of Columbia may disclose the name and contact information of its insurers to any third
party which presents a claim against The Government of the Dist rict of Columbia for any
damages or claims resulting from or arising out of work performed by the Contractor, its agents,
employees, servants or subcontractors in the performance of this contract.
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L. CARRIER RATINGS. All Contract or’s and its subcontractors’ insurance required in
connection with this contract shall be written by insurance com panies with an A.M. Best
Insurance Guide rating of at least A- VII or better (or the equivalent by any other rating agency)
and licensed in the District of Columbia.
M. WARRANTIES. When applicable, the Contractor should be named as an additional insured
on the applicable manufacturer’s/distributer’s Commercial Gener al Liability policy using
Insurance Services Office, Inc. (“ISO”) form CG 20 15 04 13 (or another occurrence-based
form with coverage at least as broad). CO should collect, revi ew for accuracy, and maintain
all warranties for goods and services.
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Article 12 - ECONOMIC INCLUSION REQUIREMENTS
Section 12.1 LSDBE Utilization.
Section 12.1.1 If the Contractor subcontracts any work, at least 35% of the dollar volume
of the Agreement shall be subcontracted with small business ent erprises (“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 coun t 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 Busin ess 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 meet ing this goal. The Contractor has
developed a Subcontracting Plan that is attached hereto as Exhibit P. The Contractor shall comply
with the terms of the SBE Subc ontracting Plan in making purchas es and administering its
subcontracts and supply agreements.
Section 12.2 Mandatory Subcontracting Requirements
Section 12.2.1 Unless the Director of the Department of Small and Local Busine ss
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 12.2.2 If there are insufficient SBEs to completely fulfill the requir ement 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 signif icant participants in the overall
subcontracting work.
Section 12.2.3 A prime contractor that is certi fied by DSLBD as a small, local o r
disadvantaged business enterprise shall not be required to comply with the provisions of Sections
13.2.1 and 13.2.2.
Section 12.2.4 Except as provided in Sections 13.2.1 and 13.2.2, a prime contractor that
is a CBE and has been granted a proposal preference pursuant to D.C. Official Code § 2-218.43,
or is selected through a set-aside program, shall perform at le ast 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 12.2.5 A prime contractor that is a certified joint venture and has been granted a
proposal preference pursuant to D.C. Official Code § 2-218.43, or is selected through a set-aside
program, shall perform at least 50% of the contracting effort w ith its own organization and
resources and, if it subcontracts, 35% of the subcontracting effort shall be with CBEs. A certified
joint venture prime contractor t hat performs less than 50% of t he contracting effort shall be
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subject to enforcement actions under D.C. Official Code § 2-218.63.
Section 12.2.6 Each CBE utilized to meet these subcontracting requirements shall
perform at least 35% of its contracting effort with its own organization and resources.
Section 12.3 Subcontracting Plan
If the Contractor is required by law to subcontract under this Agreement, then the
subcontracting plan Exhibit P submitted with its Proposal, may only be amended with the prio r
written approval of the Contracting Officer and Director of DSL BD, as previously stated herein;
and, any reduction in the dollar volume of the subcontracted portion resulting from an amendment
of the Subcontracting Plan shall inure to the benefit of the District. The Subcontracting Plan shall
include the following:
(1) The name and address of each subcontractor;
(2) A current certification number of the small or certified business enterprise;
(3) The scope of work to be performed by each subcontractor; and
(4) The price that the prime contractor will pay each subcontractor.
Section 12.4 Copies of Subcontracts
Within twenty-one (21) days of th e date of award, the Contracto r shall provide fully executed
copies of all subcontracts identi fied in the subcontracting pla n to the Contracting Officer (CO),
City Administrator (CA), District of Columbia Auditor and the Director of DSLBD.
Section 12.5 Subcontracting Plan Compliance Reporting
Section 12.5.1 If the Contractor has a subcontr acting plan required by law for t h i s
contract, the Contractor shall s ubmit a quarterly report to the CO, CA, District of Columbia
Auditor, and the Director of DSLBD. The quarterly report shall include the following
information for each subcontract identified in the subcontracti ng 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 provide d with an earlier
quarterly report.
Section 12.5.2 If the fully executed subcontract is not provided with the quarterly
report, the prime contractor will not receive credit toward its subcontracting requirements
for that subcontract.
Section 12.6 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.
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Section 12.7 DSLBD Notices
The Contractor shall provide written notice to the DSLBD and th e District of Columbia Auditor
upon commencement of the contract and when the contract is completed.
Section 12.8 Enforcement and Penalties for Breach of Subcontracting Plan
Section 12.8.1 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 subc ontracting information in a reasonably timely manner; (ii)
submits a monitoring or complian ce report or other required sub contracting information
containing a materially false statement; or (iii) fails to meet its subcontracting requirements.
Section 12.8.2 A contractor found to have breached its subcontracting plan for utilization
of CBEs in the performance of a contract shall be subject to th e imposition of penalties,
including monetary fines in accordance with D.C. Official Code § 2-218.63.
Section 12.8.3 If the CO determines the Contract or’s failure to be a material breach of the
contract, the CO shall have cause to terminate the contract under the default provisions in clause
5 of the SCP, Default.
Section 12.8.4 Neither the Contractor nor a subc ontractor may remove a subcont ractor or
tier-subcontractor if such subcont ractor or tier-subcontractor is certified as an LSDBE
company unless the Department approves such removal in writing. The Department may
condition its approval upon the Cont ractor developing a plan th at is, in the Department’s
sole and absolute judgment, adequate to maintain the level of L SDBE participation on the
Project.
Section 12.9 Equal Employment Opportunity and Hiring of Distric t Residents
Section 12.9.1 The Contractor shall comply with applicable laws, regulations a nd special
requirements of the Contract Doc uments regarding equal employme nt 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 f orms for completion of
the Equal Employment Opport unity Information Report are incorporated herein as Exhibit
O. A contract award cannot be made to any contractor that has no t satisfied the equal
employment requirements.
Section 12.9.2 The Contractor shall ensure that at least fifty-one percent (51%) of the
Contractor’s team and every subc onsultant’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 Contractor, to work on the Project shall be residents of the District of
Columbia. This percentage shall be applied in the aggregate, an d not trade by trade. In
addition, the Contractor shall use commercially reasonable best e fforts to comply with the
workforce percentage goals established by the recently adopted amendments to the First
Source Employment Agreement Act of 1984 (D.C. Code §§ 2-219.01 et seq. ) and any
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implementing regulations, including but not limited to the following requirements:
(i) At least 20% of journey worker hours by trade shall be performe d by District
residents;
(ii) At least 60% of apprentice hours by trade shall be performed by District residents;
(iii) At least 51% of the skilled laborer hours by trade shall be per formed by District
residents; and
(iv) At least 70% of common laborer hours shall be performed by District residents.
Section 12.9.3 Thirty-five percent (35%) of all apprentice hours worked on the Project
shall be worked by District residents.
Section 12.10 Economic Inclusion Reporting Requirements
Section 12.10.1 Upon execution of the Agreement, the Contractor and all its mem ber
firms, if any, and each of its subcontractors shall submit to t he Department a list of current
employees and apprentices that wi ll be assigned to the Agreemen t , t h e d a t e t h e y w e r e hired
and whether or not they live in the District of Columbia.
Section 12.10.2 The Contractor and its constituent entities shall comply with s ubchapter
X of Chapter II Title 2, and Subchapter II of Chapter 11 of Tit le 1 of the D.C. Code, and all
successor acts thereto, and the ru les and regulations promulgated thereunder. The Contractor and
all member firms and Subcontractors shall execute a First Sourc e Agreement Exhibit S with
the District of Columbia Department of Employment Services (“DOES”) prior to beginning Work
at the Project site.
Section 12.10.3 The Contractor shall maintain detailed records relating to the general
hiring of the District of Columbia and community residents.
Section 12.10.4 The Contractor shall be respons ible for: (i) including the provisions of
Section 12.10 in all subcontracts; (ii) colle cting the information required in Section 12.10 from
its Subcontractors; and (iii) prov iding the information collect ed from its Subcontractors in the
reports required to be submitted by the Contractor pursuant to Section 12.10.
Section 12.11 Compliance with the Apprenticeship Act. The District of Columbia
Apprenticeship Act of 1946, D. C. Official Code §§ 32-1401 et seq. ("Apprenticeship Act"), as
amended, may apply to this Project. All subcontractors selected to perform work on the Project on
a craft-by-craft basis shall be r equired to comply with this Ap prenticeship Act. All terms and
conditions of the Apprenticeship Act, D.C. Apprenticeship Council Rules and Regulations, as well
as any federal requirements, shall be implemented. The Contract or shall be liable for any
subcontractor non-compliance. Thirty-Five percent (35%) of all apprentice hours worked shall be
performed by District residents.
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Article 13 - LIQUIDATED DAMAGES AND DISINCENTIVE FEES
Section 13.1 Delay in Submission of Deliverables
The Contractor acknowledges that the Department is engaging the Contractor to provide an
extensive level of preconstruction support services to minimize the potential for cost overruns,
schedule delays or the need for extensive Value Engineering/re-design late in the Project and
that the certain preconstruction deliverables are key to identify the value of such services. Subject
t o t h e t e r m s s e t f o r t h i n Section 4.11 , if the Contractor fails to provide any of the deliverables
set forth in Exhibit C , the Contractor shall pay to the Department a disincentive fee in the amount
set forth in the Project Information Section of this Agreement for each such deliverable that is
not timely submitted.
Section 13.2 Delay in Substantial Completion.
If the Contractor fails to achieve Substantial Completion of th e Project by the Substantial
Completion Date, the Parties acknowledge and agree that the act ual damage to the Department
for the delay will be impossible to determine, and in lieu ther eof, the Contractor shall pay to
the Department, as fixed, agreed and liquidated delay damages i n 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 Contrac tor and the Department agree
that the liquidated damages set forth in this Article do not constitute, and shall not be deemed,
a penalty but represent a reasonable approximation of the damages to the Department associated
with a delay in the Project. These damages shall not apply if the delay is the result of force majeure,
and the Contractor otherwise com plies with the provisions set f orth in the collective Standard
Contract Provisions.
Section 13.3 Early Completion.
In the event the Contractor achie ves Substantial Completion of the Project prior to the
Substantial Completion Date, the Contractor shall maintain the completed Project, at its own
expense, until such time that the Department agrees to occupy a nd use the Project for its intended
use.
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Article 14 - MISCELLANEOUS PROVISIONS
Section 14.1 Ownership and Use of Documents.
The Drawings, Specifications, a nd other documents prepared by t he A/E and copies
thereof furnished to the Contract or, are for use solely with re spect to this Project. They are
not to be used by the Contractor , subcontractors, sub- subcontr actors 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 Architect/Engineer. T he referenced Drawing,
Specifications, and other documen ts shall become the property o f the Department.
Section 14.2 Assignment.
The Department and Contractor respectively bind themselves, the ir partners,
members, joint venturers, constituent entities, successors, ass igns, and legal representative
to the other party hereto and to partner s, members, joint venturers, c onstituent entities,
successors, assigns, and legal representatives of such other pa rty in respect to covenants,
agreements and obligations contained in the Agreement. Neither party to the Agreement shall
assign the Agreement or its rights and oblig ations under the Agreement, wi thout written
consent of the other party. If either party attempts to make such an assignment without such
consent, that party shall nevertheless remain legally responsible for all obligations under the
Agreement.
Section 14.3 Buy American Act Provision.
The Contractor shall comply with the provisions of the Buy Amer ican Act (41 U.S.C. §§
8301–8305), including, but not limited to, the purchase of stee l. To the extent that the
language in this section contradicts the language under Article 24 of The Department Standard
Contract Provisions for Construction ( Exhibit I ) regarding compliance with the Buy
American Act, the language in this section should supersede.
14.3.1 In accordance with the Buy American Act (41 U.S.C. §§ 8301–830 5), 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, 1059—63 Comp. , p. 635), the
Contractor agrees that only domestic construction material will be used by the Contractor,
subcontractors, material men and suppliers in the performance of the Agreement, except
for non-domestic material listed in the Agreement.
“Components” as used in this Sec tion, means those articles, mat erials 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, produce d, or manufactured in
the United States, exceeds 65 percent of the cost of all its co mponents. For an end
product that consists wholly or predominantly of iron or steel or a combination of both,
the cost of foreign iron and steel must constitute less than 5 percent of the cost of all
the components used in the end product.
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Components of foreign origin of the same class or kind as the products shall be treated
as domestic. Scrap generated, collected, and prepared for proce ssing in the Unites
States is considered domestic.
“End Products”, as used in this Section, means those articles, materials, and supplies
to be acquired for public use under this Contract.
The Contractor 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 woul d be
inconsistent with the public interest; or
4. For which the District determines the cost to be unreasonable.
14.3.2 Domestic Construction Material. “Construction material” means any article,
material, or supply brought to the construction site for incorporation in the building or
work. An unmanufactured construction material is a “domestic construction material”
if it has been mined or produced in the United States. A manufa ctured construction
material is a “domestic construction material” if it has been manufactured in the United
States and if the cost of its com ponents which have been mined, produced, or
manufactured in the United States exceeds 65 percent of the cost of all its components.
“Component” means any article, material, or supply directly inc orporated in
construction material. If the construction material consists wholly or predominantly of
iron or steel, the iron or steel was produced in the United Sta tes; or, for construction
material that consists wholly or predominantly of iron or steel or a combination of both,
a construction material manufactured in the United States if the cost of foreign iron and
s t e e l c o n s t i t u t e s l e s s t h a n 5 p e r c e n t o f t h e c o s t o f a l l t h e c omponents used in such
construction material.
14.3.3 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 man ufactured 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 suffici ent and reasonably
available commercial quantities and of a satisfactory quality.
14.3.4 Foreign Material. “Foreign construction material” means a construction material
other than a domestic construction material.
Section 14.4 The Quick Payment Clause
14.4.1 Interest Penalties to Contractors
14.4.1.1 The District will pay interest penalties on amounts due to the Contractor
under the Quick Payment Act, D.C. Official Code §2-221.01 et seq ., for the period
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beginning on the day after the r equired payment date and ending on the date on which
payment of the amount is made. Interest shall be calculated at the rate of 1.5% per month.
No interest penalty shall be paid if payment for the completed delivery of the item of
property or service is made on or before the required payment date:
a. The date on which payment is due under the terms of the Contract;
b. Not later than 7 calendar days, excluding legal holidays, after the date of
delivery of meat or meat food products;
c. Not later than 10 calendar days, excluding legal holidays, after the date
of delivery of a perishable agricultural commodity; or
d. 30 calendar days, excluding legal holidays, after receipt of a proper
invoice for the amount of the payment due, if a specific date on which
payment is due is not established by contract;
14.4.1.2 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 a nd thereafter
interest penalties shall accrue on the added amount.
14.4.1.3 No interest penalty shall be due to the Contractor 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.
14.4.2 Payments to Subcontractors
14.4.2.1 The Contractor must take one of the following actions within seven (7) days of
receipt of any amount paid to the Contractor by the District for work performed by any
subcontractor under this contract:
a) Pay the subcontractor for the proportionate share of the total payment received
from the District that is attributable to the subcontractor for work performed under
the contract; or
b) Notify the Contracting Officer and the subcontractor, in writing, of the Contractor’s
intention to withhold all or part of the subcontractor’s payment and state the reason
for the nonpayment.
14.4.2.2 The Contractor must pay any subc ontractor or supplier interest penalties on
amounts due to the subcontractor or supplier beginning on the d ay after the
payment is due and ending on the date on which the payment is m ade. Interest shall
be calculated at the rate of 1.5% per month. No interest penalt y shall be paid on the
following if payment for the completed delivery of the item of property or service is
made on or before:
14.4.2.3
a) The 3rd day after the required payment date for meat or a meat product;
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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.
14.4.2.4 Any amount of an interest penalty which remains unpaid by the C ontractor at
the end of any 30-day period shall be added to the principal am ount of the debt to
the subcontractor and thereafter interest penalties shall accrue on the added amount.
14.4.2.5 A dispute between the Contractor and subcontractor relating to the amounts
or entitlement of a subcontractor to a payment or a late paymen t interest penalty
under the Quick Payment Act does not constitute a dispute to which the Di strict is
a party. The District of Columbia may not be interpleaded in any judicial or
administrative proceeding involving such a dispute.
14.4.3 Subcontractor Quick Payment Clause Flow-Down Requirements
14.4.3.1 The Contractor shall include in each subcontract under this Con tract a
provision requiring the subcontractor to include in its contrac t(s) 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).
14.4.4 Requirements for Change Order payments
14.4.4.1 The Department and the Contractor are prohibited from requiring a prime
contractor or a subcontractor to undertake any work that is det ermined to be beyond the
original scope of the prime cont ractor's or a subcontractor's c ontract 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:
(i) Agrees with the prime contractor and, if applicable, the subcon tractor on a price for the
additional work;
(ii) 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;
(iii) Has made a written, binding commitment with the prime contracto r to pay for the
additional work within 30 days after the prime contractor submits a proper invoice for the
additional work to the contracting officer; and
(iv) Gives written notice of the fundi ng certification from the Chie f Financial Officer to
the prime contractor;
14.4.4.2 The Contractor is required to include in its subcontracts a cla use that
requires the prime contractor to:
(i) Within 5 business days of receipt of the notice required under subparagraph (A)(iv) of
this paragraph, provide the subcon tractor with notice of the ap proved amount to be
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paid to the subcontractor based on the portion of the additional work to be completed
by the subcontractor;
(ii) Pay the subcontractor any undisputed amount to which the subcon tractor is entitled
for any additional work within 10 days of receipt of payment for the additional work
from the District; and
(iii) If the prime contractor withholds p ayment from a subcontractor, notify the
subcontractor in writing and stat e the reason why payment is be ing withheld and
provide a copy of the notice to the contracting officer; and
14.4.4.3 The Department, Contractor, prim e contractor, or a subcontracto r are
prohibited from declaring another party to the contract to be i n default or assessing,
claiming, or pursuing damages fo r delays in the completion of t he construction due
to the inability of the parties to agree on a price for the additional work.
14.4.4.4 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 Contractor shall not comply with any order, directive, or r equest that changes or
modifies the requirements of thi s Contract unless issued in wri ting and signed by the
CO.
c. In the event the Contractor effects any change at the instruction or request of any person
other than the CO, the change will be considered to have been made without authority
and no adjustment will be made in the Contract price to cover any cost increase incurred
as a result thereof.
Section 14.5 Contract Work Hours And Safety Standards Act Provi sion. The
Contractor 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 14.6 False Claims Act.
The Contractor shall be governed by all laws and regulations prohibiting false or fraudulent
statements and claims made to t he DC government, including the prescriptions set forth in
the DC Official Code §22-2514 and §§2-381.01 et seq. In the event that it is discovered that
the Contractor has made a false, fraudulent or unsupported statement or claim to the
Department, the Department may terminate this Agreement without liability.
Section 14.7 Interpretation of Contract and Order of Precedence . All of the 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
Contractor, as the intent of the Agreement is, with specific id entified exceptions, to require
the Contractor to assume entire responsibility for construction of the Project. If there is any
inconsistency among the documents comprising the Agreement, the order of precedence
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among them is as follows, with the first listed document having the highest priority:
(1) This Agreement and its Modifications, Change Orders, Change Directives and any
Exhibits thereto;
(2) The Department’s collective Standard Contract Provisions, as amended, and any
missing term in this Agreement shall be addressed in accordance with the collective
Standard Contract Provisions; and
(3) The Construction Documents as approved by the Department.
Section 14.8 Independent Contractor. The Contractor and the Contractor’s employees:
(1) shall perform the services s pecified herein as independent contractors, not as employees
or agent of the District, or joint venture or partner with the District; (2) shall be responsible
for their own management and administration of the work require d and bear sole
responsibility for complying w ith any and all technical, schedu le, 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 govern ment’s right and obligation to
inspect, accept or reject work, comply with such general direct ion of the CO, or the duly
authorized representative of the CO as is necessary to ensure a ccomplishment of the
Agreement objectives. The Contractor shall have exclus ive authority to manage, direct , and
control the work, and shall be responsible for all means, methods, techniques, sequences, and
procedures, as well as for Proje ct safety. In carrying out all its obligations under the
Agreement, the Contractor shall act as an independent contractor and not as an employee or
agent of the Department, nor as a joint venture or partner of the Department.
Section 14.9 No Third-Party Beneficiary Rights. Nothing in this Agreement shall be
construed as creating third-part y beneficiary rights in any per son or entity, except as
otherwise expressly provided in this Agreement.
Section 14.10 Media Releases. Neither the Contractor, its employees, agents or
Subcontractors, or material supp liers shall make any press rele ase or similar media release
related to the Project unless such press release have been disc u s s e d w i t h t h e D e p a r t m e n t
prior to its issuance.
Section 14.11 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 14.12 Notices. All notices or communications re quired or permitted under the
Agreement shall be in writing and shall be hand delivered or se nt by telecopier or by
recognized overnight carrier to the intended recipient at the a ddress stated below, or to such
other address as the recipient m ay 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:
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Xavier Beltran
Interim Chief Procurement Officer
Department of General Services
3924 Minnesota Ave, NE, 6th Floor
Washington, DC 20019
If to the Contractor:
Anthony Fernando
President
Atmos Solutions, Inc.
6856 Eastern Avenue NW, Suite 205
Washington, DC 20012
This Section shall be read as imposing minimum requirements for distribution of
required contractual notices, a nd not as displacing distributio n requirements with
respect to design documents, c onstruction submittals, periodic reports, and other
documents.
Section 14.13 Limitations. The Contractor agrees that any statute of limitations applicabl e
to any claim or suit by the Department arising from this Agreem ent or its breach shall be
controlled by applicable District of Columbia law.
Section 14.14 Survival. All agreements warranties, and representations of the Contractor
contained in the Agreement or in any certificate or document fu rnished pursuant to the
Agreement shall survive termination or expiration of the Agreement.
Section 14.15 No Waiver. If the Department waives any power, right, or remedy arising from
the Agreement or any applicable law, the waiver shall not be de emed 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 14.16 Remedies Cumulative. Unless specifically provide d to the contrary in the
Agreement, all remedies set forth in the Agreement are cumulati ve and not exclusive of any
other remedy the Department may have, including, without limita tion, at law or in equity.
The Department's rights and remedies will be exercised at its sole discretion, and shall
not be regarded as conferring any oblig ation on the Department's to ex ercise those rights or
remedies for the benefit of the Contractor or any other person or entity.
Section 14.17 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 14.18 Entire Agreement; Modification. The Agreement supersedes all
contemporaneous or prior negotia tions, representations, course of dealing, or agreements,
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either written or oral. No modifications to the Agreement shall be effective against the
Department unless made in writing a n d signed by both the Department and the Contractor,
unless otherwise expressly provide d to the contrary in the Agre ement. Notwithstanding the
foregoing, nothing herein shall be construed to limit the Depar tment’s ability to unilaterally
modify the Agreement.
Section 14.19 Severability. In the event any one or more of t he provisions contained in this
Agreement shall for any reason be held to be invalid, illegal o r unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affec t any other provision of this
Agreement, and in lieu of each such invalid, illegal or unenfor ceable provision, there shall
be added automatically as a part of this Agreement a provision as similar in terms to such
invalid, illegal or unenforceable provision as may be possible and be valid, legal and
enforceable; each part of this Agreement is intended to be severable.
Section 14.20 Anti-Deficiency Acts. The obligations and responsibilities of the Department
under the terms of the Agreement, or any subsequent agreement e ntered into pursuant to this
Agreement or referenced herein (to which the Department is a pa rty), are and shall remain
subject to the provisions of: (i) the federal Anti-Deficiency A ct, 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 Distric t 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). P ursuant to the Anti-
Deficiency Acts, nothing in this Agreement shall create an obli gation of the Department in
anticipation of an appropriati on by Congress for such purpose, and the Department’s legal
liability for payments and othe r charges under this Agreement s hall not arise or obtain in
advance of the lawful availability of appropriated funds for th e applicable fiscal year as
approved by Congress. IN ACCORDANCE WITH § 446 OF THE HOME RULE ACT,
D.C. CODE § 1-204.46, NO DISTRICT OF COLUMBIA OFFICIAL IS AUTHORIZED
TO OBLIGATE OR EXPEND ANY AMOUNT UNDER THE AGREEMENT OR
CONTRACT DOCUMENTS UNLESS SUCH AMOUNT HAS BEEN APPROVED, IS
LAWFULLY AVAILABLE AND APPROPRIATED BY ACT OF CONGRESS
Section 14.20.1 The Department agrees to exercise all lawful authority availabl e 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 De partment’s known potential
financial obligations under this Agreement for such fiscal peri od. 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 t he 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 b e liable to make any payment
under this Agreement upon the expiration of any then-existing a ppropriation, the Department
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shall promptly notify the Contractor and this Agreement shall immediately terminate upon the
expiration of any then-existing appropriation.
Section 14.20.2 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 14.20.3 This Agreement shall not constitute an indebtedness of the Dist rict
and/or the Department, nor shall it constitute an obligation fo r 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 emplo yee 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 14.21 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 14.22 Davis-Bacon Act Provision and 29 CFR 5.5 Davis Bacon Provision.
The Davis-Bacon Act (40 U.S.C.A. §§ 3141-3148) and 29 CFR 5.5 Davis Bacon Provision are
applicable to this Project. As such, the Contractor and its tra de subcontractors shall comply
with the wage and reporting requirements imposed by that Act Exhibit F1 and Exhibit F2 .
At such time as the Contractor is preparing its GMP, the Contra ctor shall include the current
Davis-Bacon wage rates in its GMP.
Section 14.23 Living Wage Act . The Living Wage Act is applicable to this Contract. As
such, the Contractor and its subcontractors shall comply with t he wage and reporting
requirements imposed by that Act, Exhibit Q.
Section 14.24 Intentionally Deleted.
Section 14.25 Americans with Disabilities Act of 1990 (“ADA”). During the performance
of this Contract, the Contractor and any of its Subcontractors shall comply with the ADA. The
ADA makes it unlawful to discrimin ate in employment against a q ualified individual with a
disability. See 42 U.S.C. §12101 et seq.
Section 14.26 Contracts in Excess of One Million Dollars. Any contract in excess of
$l,000,000 shall not be binding or giv e rise to any claim or de mand against the District until
approved by the Council of the District of Columbia and signed by the Contracting Officer.
Section 14.27 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 o ffered or given by the Contract or, or any agent or
representative of the Contractor , to any official, employee or agent of the Department or the
District with a view toward securing the Agreement or any other contract or securing favorable
treatment with respect to the awarding or amending, or the making of any determinations with
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respect to the performance of the Agreement, the Department may , by written notice to the
Contractor, terminate the right of the Contractor to proceed un der the Agreement and may
pursue such other rights and remedies provided by law and under the Agreement.
14.27.1 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 Contractor as it could pursue in the event of
a breach of the Agreement by the Contractor; 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 Contractor in providing any such
gratuities.
Section 14.27.2 No member of, nor delegate to Congress, Mayor or City Council
Member, nor the Department nor an employee of the District or e mployee of the Department
shall be admitted to any share or part of the Agreement or to a ny benefit that may arise
therefrom, and all agreements entered into by the CO of the Department in which he or she be
personally interested as well as all agreements made by the Department in which the Mayor or
City Council Member or employee of the District shall be personally interested shall be void,
and no payments shall be made on any such contracts by the Depa rtment; but this provision
shall not be construed or extend to the agreement if the share of or benefit to the member of,
or delegate to Congress, Mayor or City Council Member, or emplo yee of the District is de
minimis.
Section 14.28 Ethical Standards for the Department's Employees and Former
Employees. The Department expects the Cont ractor to observe the highest ethical standards
and to comply with all applicable laws, rules, and regulations governing ethical conduct or
conflicts of interest. Neither the Contractor, nor any person a ssociated with the Contractor,
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 Departmen t not in conformity with
applicable law, rules or regulations. The Contractor shall not engage the services of any person
or persons in the employment of the Department or the District for any work required,
contemplated, or performed under the Agreement. The Contractor may not assign to any
former employee or District employee or agent who has joined the Contractor’s firm any matter
on which the former employee, while employed by the Department, had material or substantial
involvement in the matter. The C ontractor may request a waiver to permit the assignment of
such matters to former personnel on a case-by-case basis. The Contractor shall include in every
subcontract a provision substant ially similar to this section s o that such provisions shall be
binding upon each Contractor or vendor.
Section 14.29 Non-Discrimination in Employment Provisions.
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Section 14.29.1 District of Columbia Human Rights Act
a. The Contractor 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 Contractor shall include
a similar clause in all subcontracts, except subcontracts for s tandard commercial
supplies or raw materials. In a ddition, the Contractor agrees, and any subcontractor
shall agree, to post in conspicuous places, available to employ ees 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 Contractor shall not discriminate against any employee or a pplicant for
employment because of race, color, religion, national origin, s ex, age, marital
status, personal appearance, sexual orientation, family respons ibilities,
matriculation, political affiliation, or physical handicap.
2. The Contractor agrees to take a ffirmative action to ensure that applicants are
employed, and that employees are treated during employment, wit hout regard
to their race, color, religion, national origin, sex, age, mari tal status, personal
appearance, sexual orientation, family responsibilities, matric ulation, 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 Departmen t, the
Contractor agrees to post in conspicuous places, available to e mployees and
applicants for employment, notices to be provided by the Depart ment setting
forth the provisions paragraphs 1 and 2 of Section 15.29.1(b) of this Agreement,
concerning non-discrimination and affirmative action.
4. The Contractor shall, in all solicitations or advertisements for employees placed
by or on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment pursuant to the non-discrimination requirements
set forth in Section 14.29.3.
5. The Contractor agrees to send to each labor union or representative of workers
with which it has a collective bargaining agreement, or other c ontract or
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understanding, a notice to be prov ided by the Department, advis ing each labor
union or workers' representative of the Contractor’s commitment s under this
Section 14.29.1 , and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
6. The Contractor agrees to permit access by the Department to all books, records
and accounts pertaining to its employment practices for purpose s of
investigation to ascertain compliance with this Section 14.29.1, and to require
under terms of any Subcontractor agreement each Subcontractor t o permit
access of the Subcontractors, books, records, and accounts for such purposes.
7. The Contractor shall include in every subcontract this Section 14.29.1 so that
such provisions shall be binding upon each subcontractor or vendor.
8. The Contractor shall take such action with respect to any subcontract as the CO
may direct as a means of enforci ng these provisions, including sanctions for
noncompliance; provided, however, that in the event the Contrac tor becomes
involved in, or is threatened with, litigation with a Subcontractor or vendor as a
result of such direction by the De partment, the Contractor may request the
District to enter into such litigation to protect the interest of the District.
Section 14.29.2 Pregnant Workers Fairness
a. The Contractor shall comply with the Protecting Pregnant Worke rs Fairness Act of
2016, D.C. Official Code § 32-1231.01 et seq. (PPWF Act).
b. The Contractor shall not:
1. Refuse to make reasonable accommodations to the known limitations related to
pregnancy, childbirth, related m edical conditions, or breastfee ding for an
employee, unless the Contractor 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 privile ges of
employment, including failing to r einstate the employee when th e need for
reasonable accommodations ceases to the employee's original job o r t o a n
equivalent position with equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employee, or a job applicant, if the denial
is based on the need of the employer to make reasonable accommodations to the
known limitations related to pregnancy, childbirth, related med ical conditions,
or breastfeeding;
4. Require an employee affected by pregnancy, childbirth, related medical
conditions, or breastfeeding to a ccept an accommodation that th e employee
chooses not to accept if the employee does not have a known lim itation related
to pregnancy, childbirth, related medical conditions, or breast feeding or the
accommodation is not necessary for the employee to perform her duties;
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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 fro m work as a
result of a pregnancy-related condition, including a pre-birth complication.
c. The Contractor shall post and maintain in a conspicuous place a notice of rights in
both English and Spanish and provide written notice of an emplo yee's right to a
needed reasonable accommodation related to pregnancy, childbirt h, related medical
conditions, or breastfeeding pursuant to the PPWF Act to:
1. New employees at the commencement of employment;
2. Existing employees; and
3. An employee who notifies the em ployer of her pregnancy, or othe r condition
covered by the PPWF Act, within 10 days of the notification.
d. The Contractor 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 penaltie s as described in the
PPWF Act.
14.29.3 UNEMPLOYED ANTI-DISCRIMINATION
a. The Contractor shall comply with the Unemployed Anti-Discrimination Act of 2012,
D.C. Official Code § 32-1361 et seq. (“Anti- Discrimination Act”).
b. The Contractor 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 indicati ng that an individual's status as unemployed
disqualifies the individual for the job; or
ii. Any provision stating or indicati ng that an employment agency w ill 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 s ubject to civil
penalties as described in the Anti-Discrimination Act.
Section 14.30 ASSIGNMENT OF CONTRACT PAYMENTS
a. Subject to this Section 14.30, in accordance with Title 27 DCMR Section 3250, the
Contractor may assign due or to become due as a result of the performance of this Contractor
to a bank, trust company, or other financing institution funds.
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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 Contractor, 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 ___________, ma ke payment of this
invoice to (name and address of assignee).”
Section 14.31 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 ava ilable for inspection and copy ing 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 Contractor recei ves a request for such informa tion, the Contractor shall
immediately send the request to the PM designated in Section 2.6 of this Agreement who will
provide the request to the FOIA Officer for the agency with pro grammatic responsibility in
accordance with the D.C. Freedom of Information Act. If the ag ency with programmatic
responsibility receives a request for a record maintained by th e Contractor pursuant to the
Contract, the PM will forward a copy to the Contractor. In eit her event, the Contractor is
required by law to provide all responsive records to the PM wit hin 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 Contractor 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 14.32 CAMPAIGN FINANCE REFORM ACT
Prior to the execution of this Contract, the Contractor shall c omplete and submit to the
Department a completed Campaign Finance Reform Act Self-Certification Form, Exhibit R,
pursuant to D.C. Official Code § 1-1161.01.
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Article 15 - TERMINATION OR SUSPENSION
Section 15.1 All terminations or suspensions arising out of or under this Ag reement shall
be in accordance with the terms of the Standard Contract Provisions.
Section 15.2 Failure to Agree Upon GMP . The Department shall have the right to
terminate this Agreement in the event that the Department and t he Contractor are unable
to agree upon a GMP for the Project and the Department shall ha ve the right, but not the
obligation, to assume any of the Contractor’s trade subcontract s upon such terms and
conditions as requested by the De partment. The Department’s dec ision to terminate under
this Section shall be made in the Department’s sole and absolut e judgment and shall not be
subject to review by any reviewing body, including, but not lim ited to, arbitrators appointed
under this Agreement or any court of competent jurisdiction.
Section 15.3 Termination for Default . The Department may terminate the Agreement for
default if the Contractor fails to perform any of its duties or obligations under the
Agreement. In particular, but w ithout limitation, the Departmen t may terminate the
Agreement if:
1. The Contractor fails to perform the Work diligently, in accorda nce with the
Project Schedule or to make suc h progress in the Work as the Department
reasonably believes is necessary to complete the Project within t h e time
required by the Agreement; or
2. The Contractor 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
4. The Department reasonably determi nes that the Contractor has ab andoned
the Work, or has failed to pay laborers, mechanics, materialmen ,
Subcontractors or suppliers when payment is due; or
5. The Contractor 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 fi led against it under any chapt er of the
Bankruptcy Code, or the Contractor has a receiver appointed, or files for
dissolution or otherwise is dissolved; or
6. The Contractor fails to pay its debts in a timely manner or bec omes
insolvent, the Department reasonably determines that the Contra ctor does
not have the financial ability to carry out its obligations under the Agreement
and the Contractor fails to give the Department prompt and reas onable
assurances of its ability to perform.
7. In the event the Contractor fails to meet the Substantial Compl etion Date
for more than thirty (30) days, the Contractor consents to a Termination
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for Default.
Section 15.3.1 The Department shall provide the Contractor with written notice of its
intent to terminate the Agreement, under this Section.
Section 15.3.2 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 t ake possession of the
Project, to take and use all too ls, 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 15.4 Termination for Convenience . The Department may terminate the Contract
in whole or specified part, for its convenience, for any reason . The notice of termination
shall state the effective date of termination, the extent of the termination, and any specific
instructions. The termination for convenience that arises out of or under this Agreement
shall be in accordance with the terms of the Standard Contract Provisions.
Section 15.5 Continued Responsibility After Termination. If the Contractor is terminated,
for default, for Convenience or otherwise, the Contractor shall remain responsible for defects
or non-conformities in all Work performed under the Agreement to the date of the termination.
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Article 16 - OTHER CONDITIONS AND SERVICES
This Agreement and the rights and obligations of the Department and Contractor herein are
subject to the approval of the Council for the District of Columbia.
Page 85 of 92
Article 17 – CHANGES IN THE WORK
Section 17.1 Changes Authorized. In accordance with the Standard Contract Provisions,
the Department may, without invalidating the Agreement, and wit hout notice to or
approval of any surety, order ch anges in the Work, including ad ditions, deletions or
modifications. Any such change must be conveyed by the Departme nt to the Contractor
via written Change Directive or Change Order.
Section 17.2 Executed Change Directive/Contract Modification/Ch ange Order
Required. Only a written Change Directive, Contract Modification or chang e order,
executed by the Department’s cont racting officer as indicted in Exhibit H , may make
changes to the Agreement. In particular, but without limitation, a writ ten Change Directive
or Change Order executed by the Department’s Contracting Office r is the only means by
which changes may be made to the Substantial or Final Completion Dates, the Preconstruction
Fee, the Construction Management Fee, or the Guaranteed Maximum Price.
Section 17.3 Department-Initiated Changes
1. If the Department wishes to make a change in the Work or to acc elerate the
Work, it will execute and issue to the Contractor a written Cha nge Directive,
either directing the Contractor to proceed at once with the cha nged Work
or directing it to not to procee d, but to inform the Department , in writing, of
the amount, if any, by which the Contractor believes that Substantial or Final
Completion Dates and/or the GMP should be adjusted to take the Change
Order or Change Directive into account.
2. Within ten (10) days of receiving a Change Directive, the Contr actor shall
p r o v i d e t h e D e p a r t m e n t w i t h a w r i t t e n s t a t e m e n t o f a l l c h a n g e s in the
Agreement, including, without lim itation, any changes to the Su bstantial 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 sou ght (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 m ay request, and the Contractor shall
provide, further cost breakdowns , clarifications, documentation or back-up
if the Department reasonably believes such additional informati on 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 adjustm ent to the Guaranteed Maximum P ric e
shall be limited to increased Cost of the Work due to the Chang e Directive.
The Contractor is not entitled to any markup on any kind of Cha nge Orders
except as authorized in Section 17.8 , and if so authorized, any mark-up
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shall be in accordance with Section 17.11.
3. If the Department has not yet directed the Contractor to procee d with the
change described by a Change Directive, the Department may rescind it. If the
Department wishes to proceed, or has already directed the Contr actor to
proceed, the Contractor shall immediately proceed with the changed Work
and, the Department and the Contractor shall use their good fai th best efforts
to reach an agreement upon the modifications to the Substantial or Final
Completion Dates, and/or t he Guaranteed Maximum Price that are justified
by the Change Directive. If the Department and the Contractor r each
agreement, the agreement shall be set forth in a Change Order a nd the
Contractor shall also execute it, at which point it will become binding on
both Parties.
4. If the Parties fail to reach an agreement within sixty (60) day s after the
Department receives the Contractor ’s detailed statement pursuan t to Section
17.3.2, and such other documentation as the Department may request, t he
Contractor may assert a claim in accordance with the Agreement. In such a
case, and subject to adjustment via the claims and disputes pro cess, the
Department shall unilaterally grant the Contractor such adjustments, if any, to
the Substantial or Final Comple tion Dates, the Guaranteed Maxim um
Price, and/or the Preconstructio n or Construction Management Fe e as the
Department has judged to be appropriate.
Section 17.4 Notice of Change Event. The Contractor must give the Department written
notice of any Change Event within ten (10) calendar days of the date on which the
Contractor knew, or reasonably should have known, of the Change Event. To the extent
available, the notice must state the nature of the Change Event and describe, generally,
all changes in the Agreement to which the Contractor believes i t is entitled. Such notice
is an express condition precedent to any claim or request for a djustment to the Substantial
or Final Completion Dates, or the Guaranteed Maximum Price aris ing from the Change
Event and, if the notice is not given within the required time, the Contractor will have waived
the right to any adjustment to the Substantial or Final Complet ion Dates, or the Guaranteed
Maximum Price arising from the Change Event.
Section 17.5 Detailed Change Request. Within twenty (20) days after giving notice of a
Change Event, the Contractor s hall submit a written Change Requ est to the Department
describing, in reasonable detail, all adjustments it seeks to t he 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 17.3 with
respect to any Agreement changes the Contractor seeks due to th e Change Event, and
the amount of any requested adjustment to the Guaranteed Maximu m Price shall be
limited in accordance with Section 17.3.
Section 17.6 Changes to GMP. Subject to the condition precedent that the Contractor
have complied with the notice and documentation provisions of t his Article, and subject
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to the limitations stated in thi s Agreement, the Contractor 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
Contractor to proceed with work which is beyond the scope of work included
within this Agreement; or
2. The Contractor encounters Differing Site Conditions or Hazardous Materials
not identified in the Preconstruction Phase.
Section 17.7 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 17.8 No Adjustments to Fee. The Contractor understands and agrees that the
Preconstruction Fee and Construction Management Fee shall not b e increased or decreased
as a result of any Change Orders or Change Directive. In furthe rance of this understanding,
the Contractor agrees that it shall not be entitled to an incre ase in the Preconstruction Fee
or the Construction Management Fee by virtue of changes aut horized 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 the full range of services required to
demolish the existing building an d construct a new recreational f a c i l i t y t o m e e t t h e
Department’s programmatic requirements. Without limiting the ge nerality of the foregoing,
it is understood and agreed that the Contractor shall not be en titled to any additional fees
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 Contractor’s s ervices for the Project to
extend beyond Final Completion Date.
Section 17.9 Executed Change Orders Final. The Contractor agrees that any Change
Order executed by the Department and Contractor constitutes its full and final adjustment for
all costs, delays, disruptions, inefficiencies, accelerations, schedule impacts, or other
consequences arising from the change in question, whether a Cha nge Directive, or a
Change Event, or from any claime d cumulative effect of changes made to the date of the
Change Order, and that no further adjustments in compensation or time shall be sought
or made with respect to the Cha nge Directive or the Change Event giving rise to the Change
Order. Although the Parties anticipate that most Change Orders will not require an
adjustment to the Cost of General Conditions, if the Work descr ibed in a Change Order
requires an increase or decrease in the Lump Sum General Condit ions Cost (i.e. because
such a Change requires an additi onal field staff or other equipment that would be classified
as General Conditions Costs), the Change Order shall contain an increase to the Lump Sum
General Conditions Cost adjusting such amount. The cost of processing a Change Order
shall not be considered an event that will require an increase in the Lump Sum General
Page 88 of 92
Conditions Cost.
Section 17.10 Failure to Agree. If the Contractor claims entitlement to a change in the
Agreement, and the Department d oes not agree that any action or event has occurred
to justify any change in time or compensation, or if the Partie s fail to agree upon the
appropriate amount of the adjustm ent in time or compensation, t he Department will
unilaterally make such changes, i f any, to the Agreement, as it determines are appropriate
pursuant to the Agreement. The Contractor shall proceed with the Work and the
Department's directives, without interruption or delay, and shall make a claim as provided in
Article 19 herein. Failure to proceed due to a dispute over a change request shall constitute a
material breach of the Contract and entitle the Department to all available remedies for such
breach, including, without limitation, termination for default.
Section 17.11 Mark-Up on Trade Work. The maximum markup for Change Order
work shall be as follows:
1. For Work performed by a Subcontra c t o r w i t h i t s o w n f o r c e s , t h e
Subcontractor shall be entitled to a mark-up of not more than f ifteen percent
(15%) (Covering home office overh ead, the cost of insurance, an d 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 en t i t l e d t o a m a r k - u p o f n o t m o r e than fifteen
percent (15%) of the Direct Cost of the Work. With regard to any such W ork
that is self-performed by the C ontractor, the markup contemplat ed in this
Section 17.11.1 shall be the Contractor’s exclusive compensation, and it shall
not be entitled to the markup contemplated in Section 17.11.3;
2. Intervening tier Subcontractors sh all be entitled to a mark-up of two percent
(2%) (Covering home office overhead, the cost of insurance and bonds,
field supervision, general condi tions, and profit) on Work Perf ormed by
lower-tier Subcontractors;
3. To the extent permitted by Section 17.8, 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 c ost
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 fifteen percent (15%). Direct Cost of the Work does not 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. Direct Cost
of the Work shall include, but shall not be limited to:
• Labor. Payment will be made for direct labor cost plus indirect labor cost
such as insurance, taxes, fringe benefits and welfare provided
Page 89 of 92
such costs are considered reas onable. 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.
• Rented Equipment . Payment for required eq uipment rented from an
outside company that is neither a n affiliate of, nor a subsidia ry
of, the Contractor 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. 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 Contractor
shall submit written certification to the Contracting Officer that
any required rented equipment is neither owned by nor rented
from the Contractor or an affiliate of or subsidiary of the
Contractor.
• Contractor’s Equipment. Payment for required equipment owned by the
Construction Management or an affiliate of the Contractor will be
based solely on an hourly rate derived by dividing the current
appropriate monthly rate by 176 hou rs. No payment will be made
under any circumstances for repair costs, freight and transportation
charges, fuel, lubricants, insur ance, any other costs and expen ses,
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 permitted under
Sections 9.1.2 (b) and 9.1.2 (c).
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Article 18 – BONDS
Section 18.1. Performance Bond and Payment Bond. The Contractor shall, before
commencing the Construction Phase, provide to the Department pa yment and performance
bonds, each with a penal sum equal to the full value of the Agr eement. These bonds shall cover
all aspects of the Project, incl uding but not limited to constr uction management fees, general
conditions price, and any allowances, ensuring full protection for the Department and all
subcontractors and suppliers. Such bond shall remain in full fo rce 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 Contractor, even if such amount exceeds the p enal
value of such bond. Unless otherwise directed by the Department , the Contractor shall require
all Subcontractors whose Subcontract prices exceed One Hundred Thousand Dollars ($100,000)
to provide payment and performance bonds, with a penal sum equa l to one hundred percent
(100%) of the subcontract price. F urther, the Contractor must d eliver to the Contracting
Officer copies of its subcontra ctor’s Agreements of Indemnity. 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 Contractor 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 am ount of one hundred percent
(100%) of the increase, and the Contractor shall promptly compl y. The Contractor shall
furnish a copy of its bonds to an y potential beneficiary of the bonds, or permit that person or
company to make a copy. If the bonds provided become unacceptab le to the Department, the
Contractor shall promptly provide substitute security acceptabl e to the Department. If the
Contractor intends to exercise its rights as dual obligee under any trade Subcontractor’s bond,
it shall first give the Department twenty (20) days written not ice, so that the Department may
lodge any objection it may reasonably have to the proposed acti on.
Page 91 of 92
Article 19 – CLAIMS AND DISPUTE RESOLUTION
All claims or disputes arising out of this Agreement shall be governed by the terms of
the Standard Contract Provisions.
Page 92 of 92
Article 20 – EXHIBITS
Exhibit A Permit Set
Exhibit B GMP Schedule
Exhibit C Preconstruction and Construc tion Phase Deliverables
Exhibit D Close-Out Deliverables
Exhibit E Key Personnel
Exhibit F1 Davis-Bacon Wage Determination
Exhibit F2 29 CFR 5.5 Davis Bacon Provision
Exhibit G Contractor’s Designated Representative
Exhibit H Department’s Designated Repre sentatives and Contracting Officer
Exhibit I Standard Contract Provisions, G eneral Provisions (Construction
Contracts)
Exhibit J Release of Lien Waivers
Exhibit K GMP Breakdown
Exhibit K1 Capital Ineligible Costs
Exhibit K2 Project Specification Manual
Exhibit K3 List of Allowances
Exhibit K4 Assumptions and Clarifications
Exhibit L List of FF&E
Exhibit M At-Risk Construction Managemen t Fee Award Pool Determination
Exhibit N Subcontractor Past Performance Evaluation Form
Exhibit O Equal Employment Opportunity Policy Form
Exhibit P SBE Subcontracting Plan
Exhibit Q The Living Wage Act of 2006
Exhibit R Campaign Finance Reform Act Self-Certification Form
Exhibit S First Source Employment Agreement and Plan
Exhibit T DGS Project Turnover Protocol – 2024
IN WITNESS WHEREOF, the duly authorized signatories of the Parties have executed
this Agreement (DCAM-24-CS-RFP-0031) as of the last date executed below.
DEPARTMENT OF GENERAL SERVICES
An agency within the executive branch of the
Government of the District of Columbia
ATMOS SOLUTIONS, INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
Date: ____________________________
Brian Butler
Chief Operating Officer
11/21/25
EXHIBIT A - T
EXHIBITS ARE ACCESSIBLE VIA THE LINK BELOW:
Exhibits A - T