Read the full stored bill text
MURIELBOWSERMAYOR
December16,2025
The HonorablePhilMendelson
Chairman
Councilofthe DistrictofColumbia
JohnA.WilsonBuilding
1350PennsylvaniaAvenue,NW, Suite504
Washington,DC 20004
Dear Chairman Mendelson:
Pursuant to section451 of the Districtof Columbia Home Rule Act (D.C. OfficialCode § 1-
204.51) and section202 of the Procurement PracticesReform Act of 2010 (D.C. OfficialCode §
2-352.02),enclosedforconsiderationand approvalby the Council of the Districtof Columbia is
definitiveContractNo. DCAM-24-CS-RFP-0014 with GCS, Inc.,dba GCS-SIGAL, inthenot-to-
exceedamountof$12,768,917.95(includinganexistinglettercontractamountof$990,000).Thenot-to-exceedamountisanearlyreleaseoffundsfortheinitialphaseoftheconstructionofLangdonParkCommunityCenter.
Undertheinitialphaseoftheproject,GCS,Inc.,dbaGCS-SIGAL,willprovideearlystartworkincludinghazardousmaterialabatement,interiorandexteriordemolition,razepermitapproval,geothermal,belowgradework,utilitywork,andotherearlyactivities,whiletheDistrictandGCS,
Inc.,dbaGCS-SIGALfinalizethefullscopeandguaranteedmaximumpriceoftheproject.
My administrationisavailabletodiscussanyquestionsyoumayhaveregardingtheproposedcontract.Tofacilitatearesponsetoanyquestionsyoumayhave,pleasecontactDelanoHunter,Director,DepartmentofGeneralServices(“DGS”),orhaveyourstaffcontactXavierBeltran,
InterimChiefProcurementOfficer,DGS,at(202)340-6358.
1lookforwardtotheCouncil’sfavorableconsiderationofthiscontract.
Singerely,
Mufiel Bowser
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
1
Pursuant to Section 202(c-1) 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
Proposed Agreement for Design-Build Services for Langdon Park Community Center
(A) Contract Number: DCAM-24-CS-RFP-0014
Proposed Contractor: GCS, Inc., dba GCS-SIGAL
Contractor’s Principals: Gabe Oliver
Vice President
Letter Contract: $990,000.00
Total Proposed Contract Amount: Not-to-Exceed (“NTE”) $12,768,917.95
Unit and Method of Compensation: Progress payments on a monthly basis
Term of Contract: June 4, 2025 (date of execution of the Letter Contract
by the Department) through November 30, 2028
(Administrative Term Date); with a Substantial
Completion Date of August 26, 2027, and Final
Completion Date of August 24, 2028.
Type of Contract: Cost-plus fixed fee with Guaranteed Maximum
Price (“GMP”)
Source Selection Method: Competitive Request for Proposals (“RFP”)
(B) For a contract containing option periods, the contract amount for the base period and for
each option period. If the contract amount for one or more of the option periods differs from
the amount for the base period, provide an explanation of the reason for the difference:
Not applicable.
2
(C) The date on which the letter contract or emergency contract was executed:
A letter contract with GCS, Inc ., dba GCS -SIGAL (the “Contractor”) was executed by the
Department of General Services (the “Department”) on June 4, 2025 (the “Letter Contract”).
(D) The number of times the letter contract or emergency contract has been extended:
The Letter Contract has been modified once (Modification No. 1), extending the duration of the
Letter Contract to December 31, 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 under the Letter Contract is $990,000.00, which
represents the 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:
If approved, the Contract will authorize GCS, Inc., dba GCS SIGAL to provide Design -Build
Services for Langdon Park Community Center, located at 2901 20th Street, NE, Washington, DC
20018 (the “Project”). The Project includes full design and construction services to demolish and
raze the existing construct a new community center in its place. The Project will be completed in
two phases: (i) the Design and Preconstruction Phase; and (ii) the Construction Phase.
The Project includes full design and construction services to demolish and raze the existing, two-
level, 15,000 square foot facility and construct a new, approximately 21,000 square foot
community center in its place.
The new Langdon Park Community Center will include, at a minimum, the following:
Indoor Amenities: Front desk & lobby with monitoring station, Gymnastics gymnasium (~ 6,000
square feet), Basketball gymnasium (~ 6,000 square feet), Boxing gym (~ 2,000 square feet),
Restrooms, Universal restrooms, Locker rooms, Storage rooms, Office space, Fitness center
(minimum 1,000 square feet), Lounge, Large multipurpose room (~ 1,000 square feet),
Additional multipurpose rooms, Computer lab, Full-size kitchen, Electrical room, Mechanical
room, Janitor’s closet, Data/IT room, and Security system.
Outdoor Amenities: skate park, site landscaping, ADA-accessible pedestrian paths, parking lot,
site lighting, security cameras, signage, accessible spine trail linking campus amenities.
The substantial completion of the Project shall occur on or before August 26, 2027.
The Project has an approved budget of $29,000,000.00. The proposed Early Start Agreement
(“ESA”) No. 1 with the NTE amount of $12,768,917.95 (inclusive of the Letter Contract NTE
amount of $990,000.00) is an early release of funds to enable the Contractor to continue through
the design development, permitting, and pre -construction planning without delay, to ensure the
project is on schedule. This amount includes the remaining balance beyond the initial $990,000
authorized under the Letter Contract, ensuring the completion of all necessary design work and
3
associated requirements to develop the GMP proposal . As the proposed amount of the C ontract
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 April 10, 2024, t he Department posted RFP No. DCAM -24-CS-RFP-0014, Design-Build
Services for Langdon Park Community Center , to engage a contractor to serve as the Design -
Builder for the Project on the Department’s website.
There were four (4) Addenda issued to this RFP.
Addendum No. 1 was issued on April 18, 2024:
- Provided the List of Site Visit and Pre-Proposal Conference attendees;
- Provided the schedule for a second site visit; and
- Extended the Deadline for Submission of Questions from April 18, 2024, to April 26, 2024.
Addendum No. 2 was issued on May 8, 2024:
- Extended the Proposals Due Date from May 9, 2024, at 2:00 P.M. to May 22, 2024, at 2:00 P.M.
Addendum No. 3 was issued on May 10, 2024:
- Released questions and responses about the RFP;
- Removed the “WELL Building requirements” as part of the Project Sustainability Requirements
from the RFP in its entirety;
- Provided the revised approved budget of $29,000,000.00 for this project;
- Provided Attachment M: “Form of Contract”; and
- Provided additional project documents.
Addendum No. 4 was issued on May 13, 2024:
- Provided the List of Site Visit attendees for the second Site Visit.
Proposal Submissions:
On the Proposals’ due date, May 22, 2024, 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.
4
Consensus Meeting:
After the Panel members had completed their individual evaluations of the proposals, the Panel
met on August 30, 2024, and October 17, 2024, to develop the consensus technical score for each
Offeror.
Contracting Officer’s Independent Evaluation:
The Department’s Contracting Officer (“CO”) carefully reviewed each of the proposals and
independently rated each Offeror. The CO further carefully reviewed the evaluation process
followed by the Panel, their 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 so
certified and received points accordingly.
The Contractor received 12 preference points.
Determination of a Fair and Reasonable Price:
When the total points for all of the 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 I ndependent Government Estimate and is fair and
reasonable and accordingly a mutually satisfactory Contract was successfully concluded with the
Contractor.
Contract Award:
On April 28, 2025, the Department awarded the Contract to the Contractor as such award was
determined to be most advantageous to the District, and on June 4, 2025, the Department executed
Letter Contract No. DCAM-24-CS-RFP-0014.
(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. Include the identity of the protestor, the grounds
alleged in the protest, and any deficiencies identified by the District as a result of the protest:
The award of the Contract was not protested.
(I) The description of any other contracts the proposed contractor is currently seeking or holds
with the District:
Ongoing Projects:
5
1. DCAM-20-CS-RFP-0020--Stead Park Recreation Center
2. DCAM-21-CS-RFP-0010--Dorothy Height Elementary School
3. DCAM-24-CS-RFP-035--Burrville Elementary School
4. DCAM-23-CS-RFP-0004--Congress Heights Recreation Center
5. DCAM-20-CSRFQ-0002B--DOC Temp Boiler
6. DCAM-20-CSRFQ-0020--DOC- New Boiler Plant
7. DCAM-23-CS-RFP-0005--Malcolm X at Green Elementary School – Modernization
8. DCAM-23-CS-RFP-0036--Crummell Community Center
9. DCAM-24-CS-RFP-0004--South-East Tennis and Learning Center
10. DCAM-23-CS-RFP-0027--Barnard Elementary School – Addition
11. DCAM-25-CS-RFP-0002--Seaton Elementary School
Bids submitted:
1. DCAM-25-CS-RFP-0012--Harry Thomas Recreation Center
2. DCAM-25-CS-RFP-0014--Redevelopment St. Elizabeths East Campus - Design-Build
Services Relocation of Historic Building 88
3. DCAM-25-CS-RFP-0017--Construction management at-risk services for Metropolitan
Police Department 7th District new headquarters and parking facility
(J) The background and qualifications of the proposed contractor, including its organization,
financial stability, personnel, and performance on past or current government or private
sector contracts with requirements similar to those of the proposed contract:
GCS-SIGAL is a CBE in the District of Columbia and is a Longtime and Resident -Owned
Business with decades of experience throughout the region. The GCS-SIGAL team has extensive
experience managing parks and recreation construction in urban settings and has completed
numerous projects that have included fields, pools, multi-purpose/office space, playgrounds, sports
courts, gymnasiums, locker rooms, and computer rooms.
(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:
The Contractor is a certified small business enterprise in accordance with the Act (CBE Number:
LZXR46406122027). 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’s NTE Dollar Value: $12,768,917.95
Subcontracting Requirement %: 35%
Self-performing value: $2,528,245.75
Subcontracting Plan Required Dollar Value: $3,494,852.84
Subcontracting Plan Actual Dollar Value: $4,641,017.00
6
(L) Performance standards and the expected outcome of the proposed contract:
The Contractor will be required to provide a full range of design and construction services to
demolish and raze the existing, two-level, 15,000 square foot facility and construct a new,
approximately 21,000 square foot community center in its place. to meet the Department’s
programmatic requirements. The substantial completion of the Project shall occur on or before
August 26, 2027 (Substantial Completion Date). The Contractor’s performance will be monitored
by DGS staff and DGS designated Program Manager. Additionally, the Contractor must adhere
to the terms and conditions of the Standard Contract Provisions for Construction Contracts. The
Contractor is subject to liquidated damages of $7,500.00 plus $500.00 per day for failure to submit
the deliverables and $750.00 per day for failure to timely achieve substantial completion of the
Project. The Contract also provides a disincentive fee of $25,000 for the replacement of key
personnel without the Department’s prior approval and not as a penalty, to reimburse the
Department for its administrative costs arising from the Contractor’s failure to provide the key
personnel.
(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 June 4, 2025, provides for an initial NTE
Amount of $$990,000.00, which 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.
(O) A certification that the contract is legally sufficient, including whether the proposed
contractor has any pending legal claims against the District:
The Letter Contract and proposed Contract have 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):
7
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 taxes.
(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 Business Enterprise. The
Contractor’s CBE Number is LZXR46406122027, with an expiration date of December 31, 2027.
(S) Other aspects of the proposed contract that the Chief Procurement Officer considers
significant:
N/A
(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 and Procurement’s
Excluded Parties List and the Federal Government’s Excluded Parties List.
(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):
N/A
(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. Copies of the Contract
documents will be made available on the Department’s website if approved.
(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.
8
(X) (1) A certification that the proposed contractor has been determined not to be in violation of
section 334a of the Board of Ethics and Government Accountability Establishment and
Comprehensive Ethics Reform Amendment Act of 2011, D.C. Official Code § 1-1163.34a;
and (2) A certification from the proposed contractor that it currently is not and will not be
in violation of section 334a of the Board of Ethics and Government Accountability
Establishment and Comprehensive Ethics Reform Amendment Act of 2011, D.C. Official
Code § 1-1163.34a:
Based upon a certification from the Contractor, the Contractor has been determined not to be in
violation of D.C. Official Code § 1-1163.34a; and will not be in violation of D.C. Official Code
§ 1-1163.34a.
1101 4th Street, SW
Washington, DC 20024
Date of Notice: November 10, 2025 L0015265752Notice Number:
FEIN: **-***8921
Case ID: 18784808
Government of the District of Columbia
Office of the Chief Financial Officer
Office of Tax and Revenue
GCS INC
1140 3RD ST NE STE 320
WASHINGTON DC 20002-7899
Branch Chief, Collection and Enforcement Administration
Authorized By Melinda Jenkins
To validate this certificate, please visit MyTax.DC.gov. On the MyTax DC homepage, click the
“Validate a Certificate of Clean Hands” hyperlink under the Clean Hands section.
CERTIFICATE OF CLEAN HANDS
As reported in the Clean Hands system, the above referenced individual/entity has no outstanding
liability with the District of Columbia Office of Tax and Revenue or the Department of Employment
Services. As of the date above, the individual/entity has complied with DC Code § 47-2862, therefore
this Certificate of Clean Hands is issued.
TITLE 47. TAXATION, LICENSING, PERMITS, ASSESSMENTS, AND FEES
CHAPTER 28 GENERAL LICENSE
SUBCHAPTER II. CLEAN HANDS BEFORE RECEIVING A LICENSE OR PERMIT
D.C. CODE § 47-2862 (2006)
§ 47-2862 PROHIBITION AGAINST ISSUANCE OF LICENSE OR PERMIT
1101 4th Street SW, Suite W270, Washington, DC 20024/Phone: (202) 724-5045/MyTax.DC.gov
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Memorandum
To: Delano Hunter
Director, Department of General Services
From: Antoinette Hudson Beckham
Agency Fiscal Officer
Reference: Proposed Contract No. ( DCAM-24-CS-RFP-0014) Design-Build Services for
Langdon Park Community Center
Date: December 2, 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 Design-Build Services for Langdon Park Community Center (DCAM-24-CS-
RFP-0014) (the “Contract”) with GCS, Inc. DBA GCS -Sigal (the “Contractor”), in the amount of
$12,768,917.95 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 June 4, 2025, the Letter Contract
was executed by the Department, with an initial Not-to-Exceed (“NTE”) amount of $990,000.00. The
proposed increase of $11,778,917.95 will increase the NTE amount to $12,768,917.95 ($990,000.00 +
$11,778,917.95).
Per C&P, the proposed Contract’s NTE amount of $12,768,917.95 is an early start agreement (“ESA”)
No. 1 to enable the Contractor to continue through design development and permitting, and early start
of the construction activities, including but not limited to the demolition, electrical, earthwork, and
purchase of playground equipment without delay, ensuring the project remains on schedule.
While funding in the amount of $11,778,917.95 is being approved for capital-eligible items only, there
is an ineligible amount of $408,543.10, listed in Exhibit A3. See the Non-Capital Expenditures column
and associated items. These items are ineligible for capital expenditure, per the District Guidelines. The
goods/services are needed in FY27. 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 via a purchase order (“PO”) for the same
amount of $408,543.10. Unless and until such PO is issued by a duly authorized DGS Contracting
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Officer, the Contractor will be limited to the capital-funded PO in the amount of $11,370,374.85 for
the capital-eligible work authorized by this Contract. For the avoidance of confusion, if the Contractor
performs any work with the ineligible items in the amount of $408,543.10, as outlined in Exhibit A3,
without express written authorization by a duly authorized DGS Contracting Officer, the Contractor
does so at its own risk.
The Department of General Services (AM0 –Implementing AGY) has $12,768,917.95 in the
Department of Parks and Recreation (HA0–Owner AGY) capital budget authority balance.
The PASS information is below/attached:
Project Name Project
Number
AY Fund Detail Imp. AGY Owner
AGY
RK/PO Amount Comments
AM0.QN501C.LANG
DON COMMUNITY
CENTER
REDEVELOPMENT
100180 N/A 3030300 AM0 HA0 PO726211 $990,000.00 Letter Contract
AM0.QN501C.LANG
DON COMMUNITY
CENTER
REDEVELOPMENT
100180 N/A 3030300 AM0 HA0 RK317925 $11,370,374.85
Proposed ESA #1
(Capital Part
$11,370,374.85 of
$11,778,917.95
AM0.QN501C.LANG
DON COMMUNITY
CENTER
REDEVELOPMENT
100180 N/A 3030300 AM0 HA0 RK317928 $408,543.10
Proposed
ESA#1(Ineligible
part $408,543.10
of
$11,778,917.95)
Total $12,768,917.95
_______________________
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Services
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
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
Design-Build Services for Langdon Park Community Center
Contract Number: DCAM-24-CS-RFP-0014
Contractor: GCS, Inc., dba GCS-SIGAL
DATE: December 3, 2025
This is to certify that this Office has reviewed the above-referenced proposed Contract and has
found it to be legally sufficient, subject to submission of: (i) any required materials and Council
approval; (ii) Council’s approval of the same; and (iii) a Fiscal Certification issued by the
Department of General Services’ Agency Fiscal Officer.
Please feel free to contact me at (202) 727-2800 with any questions.
_______________________
Kristen Walp
Senior Assistant General Counsel
3924 Minnesota Ave, NE, Washington, DC 20019 | Telephone (202) 727-2800 | Fax (202) 727-7283
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
Contracts & Procurement Division
Sent electronically to: goliver@gcs-sigal.com
May 30, 2025
Gabe Oliver
Partner and SVP
GCS, Inc. DBA GCS-Sigal
1140 Third Street NE,
Washington, DC 20002
Subject:
Reference:
Notice to Proceed and Letter Contract
Request for Proposals (“RFP”) No. DCAM-24-CS-RFP-0014
Design-Build Services for Langdon Park Community Center
Dear Mr. Oliver:
We refer to the proposal submitted by GCS, Inc. DBA GCS -Sigal (the “Design-Builder” or “Contractor”) in
response to the above-referenced RFP. We are pleased to inform you that this work has been awarde d to GCS,
Inc. DBA GCS -Sigal, and if this letter contract (“Letter Contract ”) is signed by the Contractor without
modification of any kind, it will serve as a notice to proceed for the work described below. This notice to proceed
is subject to the following terms:
1. Letter Contract. This is a Letter C ontract between the Contractor and the District of Columbia
Government, acting by and through its Department of General Services (“DGS” or the “Department”), and shall
govern the parties relationship until such time as a final contract is entered into for the work described in the
above referenced RFP (the “Definitized Contract”); provided, however, that to the extent an issue is not covered
in this Letter Contract, the Request for Proposal shall govern. Once an authorized Contracting Officer executes
the Definitized Contract, the Letter Contract shall automatically be incorporated into and shall merge into and
be superseded by the Definitized Contract.
2. Scope of Work. The Contractor shall provide Design-Build Services for Langdon Community Center,
located at 2901 20th St NE, Washington, DC 20018 (the “Project”), as described in th e Contractor’s Proposal
dated May 22, 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 pursuant to this Letter Contract, the Contractor
shall provide, at a minimum, the deliverables Exhibit G in accordance w ith the requirements in the RFP,
Schedule of Values attached to this Letter Contract as Exhibit A and Form of Contract in connection to the
Page 2 of 6
3924 Minnesota Avenue, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727-7283
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 such deliverable, the Contractor shall pay to the
Department as a disincentive fee Seven Thousand Five Hundred Dollars ($7,500) plus Five Hundred Dollars
($500) 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 rights or remedy of the Department under the contract
or applicable District law.
4. Not to Exceed Amount. The limit of this authorization is up to $990,000.00 (“Not to Exceed” amount
or “NTE”) including $650,000.00 for the Design Fee, $74,250.00 for the Design-Build Fees, $236,050.00 for
the Lumpsum General Conditions Cost, $14,850.00 for Insurance Burden, and $14,850.00 for the Payment and
Performance Bonds, in addition to other costs as further described in the Schedule of the Values Exhibit A. In
no event shall the Contractor be entitled to receive more than the NTE 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. Key personnel for the construction phase shall include , at a minimum , (i) the Project
Manager; (ii) the Superintendent; (iii) the Project Executive ; and (iv) QA/QC Manager. The Key Personnel of
the Architect shall include: (i) Project Manager; (ii) Project Architect; (iii) Principal in Charge; (iv) Lead
Mechanical Engineer; (v) Lead Electrical Consultant; (vi) Lead Civil Engineer; (vii) Lead Structural Engineer;
and (viii) Lead Envelope Consultant. 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 consent 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 costs. 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 C ontractor, the Department shall have the right to enforce the terms of the Agreement
and to keep-in-place those members of the Design-Builder’s team not removed or replaced and the remaining
members shall complete the services required under 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 and provided hereby as Exhibit I. All such policies shall be endorsed to add the District
of Columbia, including, but not limited to, its Department of General Services, and the respective agents,
employees, and offices of each as additional insureds. The Contractor must maintain insurance for all of their
subcontractors as described in Exhibit I.
7. Duration. Once signed by the Contractor, the Letter Contract will become effective on the date the Letter
Contract is executed by the Department. This Letter Contract will terminate on August 29, 2025, or shall
automatically be incorporated into and shall merge into and be superseded by the Definitized Contract once
Definitized Contract becomes effective. DGS reserves the right to terminate this Letter Contract, in whole or
specified part, for convenience in the manner described in Article 5 and Article 6 of the District of Columbia
Department of General Services Standard Contract Provisions General Provisions for Construction Contracts
Page 3 of 6
3924 Minnesota Avenue, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727-7283
Exhibit B1, and Standard Contract Provisions for Architectural and Engineering Services Contract Exhibit
B2.
8. Billing. All invoices shall be submitted directly to the Department at the address specified in the RFP.
Purchase Order numbers should be included in all future invoices and accounting records. Properly prepared
invoices with the necessary backup shall be paid within thirty (30) days of receipt. Invoices not paid by that date
shall bear interest in accordance with the Quick Payment Act.
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 Contractor for the Project, including or other web -
based document management system to submit any and all documentation 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 forms required by the Department); (v) certified
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 ProjectTeam 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. Properly prepared invoices with the
necessary backup shall be paid within thirty (30) days of receipt. Invoices not paid by that date shall bear
interest in accordance with the Quick Payment Act. For assistance with the registration process call (202)
741-5200 or visit http://vendorportal.dc.gov to submit an inquiry.
11. Purchase Order Number. This Letter Contract will become effective on the date the Letter Contract is
executed by the Department. The Department’s Contract s & Procurement Division will issue a purchase order
number and will be sent in a separate cover. That number should be included in all future invoices and accounting
records. In the event that you do not obtain a purchase order number , please contact Suzi Tabot at
suzi.tabot@dc.gov directly to obtain this number.
12. Ownership and Use of Documents. All documents and work product prepared by the Contractor shall
become the property of the Department upon the payment of invoices 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 empl oyment agreement, Department of Small and
Local Business Development (DSLBD)), bonds, insurance, and safety procedures. At a minimum, however, the
Department’s Standard Contract Provisions for Construction shall apply 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 provide the Department with such certificates of insurance,
the agreement for indemnity or bond, the Depa rtment may withhold any subsequent payment until such
documents are provided.
Page 4 of 6
3924 Minnesota Avenue, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727-7283
14. Entire Agreement; Modification . This Letter Contract, along with the Standard Contract Provisions
(Exhibit B1 – Construction Services and Exhibit B2 – Architectural & Engineering Services), supersede all
contemporaneous or prior negotiations, representations, course of dealing, or agreements, either written or oral.
No modifications to this Letter Contract shall be effective against the Department and unless made in writing
signed by the Dep artment. Notwithstanding the provisions of this Section 1 4, 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 Davis 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 performed under this Letter Contract shall be
subject to the Living Wage Act in effect at the time of Letter Contract execution by the Department. As such,
the Contractor and its subcontractors shall comply with the wa ge reporting requirements imposed by the act as
set forth in Exhibit D.
17. Campaign Finance Reform Act . The Contractor has signed the C ampaign Finance Reform Act s elf-
certification form, hereby attached as Exhibit H. The Contractor shall be required to comply with the Campaign
Finance Reform Act certification pursuant to D.C. Official Code § 1-1161.01.
18. Performance And Payment Bonds. The Contractor has submitted the Payment and Performance Bond
with the penal value equal to the Letter Contract NTE, attached hereto as Exhibit F. The Contractor agrees to
provide an updated payment and performance bond with a penal value equal to the Definitized Contract/ amount
at the time the Definitized Contract is executed. Additionally, the Contractor shall be required to submit updated
payment and performance bonds reflecting the Guaranteed Maximum Price (“GMP”) amount.
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 contract pursuant to the nonprofit organization's
unexpired Negotiated Indirect Cost Rate Agreement (NICRA). If a nonprofit organization does not have an
unexpired NICRA, the nonprofit organization 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 as the nonprofit organization negotiated
with any District agency within the past 2 years; however, a nonprofit organization may request to
renegotiate indirect costs rates in accordance with Section 19.2; 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 costs 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.
Page 5 of 6
3924 Minnesota Avenue, NE | 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727-7283
20. Equal Employment Opportunity and Hiring of District Residents . The Contractor shall comply with
applicable laws, regulations, and special requirements of the Contract Documents regarding equal
employment opportunity and affirmative action programs. In accordance with the District of Columbia
Administrative Issuance System, Mayor’s Order 85-85 dated June 10, 1985. Exhibit E.
21. Buy American Act.
The Design-Builder shall comply with the provisions of the Buy American Act (41 U.S.C. §§ 8301–8305),
including, but not limited to, the purchase of steel. To the extent that the language in this section contradicts
the language under Article 24 of The Department Standard Contract Provisions for Construction Contracts
Exhibit B1 , and Article 15 (C) of the Department Standard Contract Provisions for Architectural and
Engineering Services Contracts Exhibit B2 regarding compliance with the Buy American Act, the language
in this section should supersede.
21.1 In accordance with the Buy American Act (41 U.S.C. §§ 8301 –8305), 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 Design -Builder agrees that only domestic construction
material will be used by the Design-Builder, subcontractors, material men and suppliers in the performance
of the Agreement, except for non-domestic material listed in the Agreement.
“Components” as used in this Section, means those articles, materials and supplies incorporated directly
into the end products.
“Domestic end product”, as used in this section, means, (1) an unmanufactured end product mined or
produced in the United States, or (2) an end product manufactured in the United States, if the cost of its
components mined, produced, or manufactured in the United States, exceeds 65 percent of the cost of all its
components. 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.
Components of foreign origin of the same class or kind as the products shall be treated as domestic. Scrap
generated, collected, and prepared for processing in the Unites States is considered domestic.
“End Products”, as used in this Section, means those articles, materials, and supplies to be acquired for
public use under this Agreement.
The Design-Builder shall deliver only domestic end products, except those:
1. For use outside the United States;
2. That the District determines are not mined, produced, or manufactured in the United States in
sufficient and reasonably available commercial quantities of a satisfactory quality;
3. For which the District determines that domestic preference would be inconsistent with the public
interest; or
4. For which the District determines the cost to be unreasonable.
21.2 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 i t has been mined or produced in the United States. A
manufactured construction material is a “domestic construction material” if it has been manufactured in the
United States and if the cost of its components which have been mined, produced, or manufacture d in the
Contracting Officer
6/4/2025
Suzi Tabot
;
3DJHRI3DJHV
,VVXHG%\
$GPLQLVWHUHG%\
,IRWKHUWKDQOLQH
'HSDUWPHQWRI*HQHUDO6HUYLFHV 'HSDUWPHQWRI*HQHUDO6HUYL FHV
0RGLILFDWLRQ1XPEHU (IIHFWLYH'DWH 5HTXLVLWLRQ3XUFKDVH 5HTXHVW1R &DSWLRQ
0RGLILFDWLRQ1RWRWKH/HWWHU&RQWUDFW 6HH%ORFN& 35 'HVLJQ%XLOG6HUYLFHVIRU/DQJGRQ3DUN
&RPPXQLW\&HQWHU
02',),&$7,212)&2175$&7
&RQWUDFW1XPEHU
'&$0&65)3
&RQWUDFWVDQG3URFXUHPHQW'LYLVLRQ &DSLWDO&RQVWUXFWLRQ6H UYLFHV'LYLVLRQ
0LQQHVRWD$YHQXH1(WK)ORRU
0LQQHVRWD$YHQXH1(WK)ORRU
:DVKLQJWRQ'&
:DVKLQJWRQ'&
%'DWHG
6HH,WHP
7KLUG6WUHHW1(
:DVKLQJWRQ'&
;
$0RGLILFDWLRQRI&RQWUDFW2UGHU1R
$WWQ
*DEH2OLYHU3DUWQHUDQG693 '&$0&65)3
&RQWUDFW32&
5D]DT(OKDP
UD]DTHOKDP#GFJRY
1DPHDQG$GGUHVVRI&RQWUDFWRU
1R6WUHHWFLW\FRXQWU\VWDWHDQG=,3&RGH
$$PHQGPHQWRI6ROLFLWDWLRQ1R
*&6,QF'%$*&66LJDO
(PDLO
JROLYHU#JFVVLJDOFRP %'DWHG
6HH,WHP
'&$0&65)3
%7KHDERYHQXPEHUHGFRQWUDFWRUGHULVPRGLILHGWRUHIOHFWWKHDGPLQLVWUDWLYHFKDQJHV
VXFKDVFKDQJHVLQSD\LQJRIILFHDSSURSULDWLRQ
IROORZLQJPHWKRGV
D
%\FRPSOHWLQJ,WHPVDQGDQGUHWXUQLQJ FRSLHVRIWKHDPHQGPHQW
E
%\DFNQRZOHGJLQJUHFHLSWRIWK LV
DPHQGPHQWRQHDFKFRS\RIWKHRIIHUVXEPLWWHG
RU
F
%\VHSDUDWHOHWWHURUID[ZKLFKLQFOXGHVDUHIHUHQFHWRWKHVROLFLWDWLRQDQG
DPHQGPHQWQXPEHU)$,/85(2)<285$&.12:/('*(0(1772%(5(&(,9('$77+(3/$&('(6,*1$7(')257+(5(&(,372)2))(56
-XQH
7+,6,7(021/<$33/,(672$0(1'0(1762)62/,&,7$7,216
35,25727+(+285$1''$7(63(&,),('0$<5(68/7,15(-(&7,212)<2852))(5,IE\YLUWXHRIWKLVDPHQGPHQW\RXGHVLUHWRFKDQJH
DQRIIHUDOUHDG\VXEPLWWHGVXFKFKDQJHPD\EHPDGHE\OHWWHURUID[SURYLGHGHDFKOHWWHURUWHOHJUDPPDNHVUHIHUHQFHWRWKH
VROLFLWDWLRQDQGWKLVDPHQGPHQWDQGLVUHFHLYHGSULRUWRWKHRSHQLQJKRXUDQGGDWHVSHFLILHG
$FFRXQWLQJDQG$SSURSULDWLRQ'DWD
,I5HTXLUHG
7KHDERYHQXPEHUHGVROLFLWDWLRQLVDPHQGHGDVVHWIRUWKLQ,WHP7KHKRXUDQGGDWHVSHFLILHGIRUUHFHLSWRI2IIHUV LVH[WHQGHG LVQRWH[WHQGHG
2IIHUVPXVWDFNQRZOHGJHUHFHLSWRIWKLVDPHQGPHQWSULRUWRWKHKRXUDQGGDWHVSHFLILHGLQWKHVROLFLWDWLRQRUDVDPHQGHGE\RQHRIWKH
$1DPHDQG7LWOHRI6LJQHU $1DPHRI&RQWUDFW6SHFLDOLVW
/HWWHU&RQWUDFW1R'&$0&65)3'HVLJQ%XLOG6HUYLFHVIRU/DQJGRQ3DUN&RPPXQLW\&HQWHU
WKH3URMHFW
LVKHUHE\PRGLILHGDVIROORZVWR
DOORZVXIILFLHQWWLPHWRILQDO]LHWKH3URMHFW
VGHVLJQZKLFKLVSHQGLQJ&RPPLVVLRQRI)LQH$UWV
&)$
&RPPLWWHHUHYLHZVDQG'&:DWHUHDVHPHQWUHYLHZ
DQGWRGHYHORSWKH3URMHFW
V*XDUDQWHHG0D[LPXP3ULFH
*03
6LJQDWXUHRISHUVRQDXWKRUL]HGWRVLJQ
6LJQDWXUHRI&RQWUDFW6SHFLDOLVW
*DEH2OLYHU3DUWQHUDQG693 )DU]DQD%DORRFK
%*&6,QF'%$*&66LJDO &'DWH6LJQHG %'LVWULFWRI&ROXPELD &'DWH6LJQHG
5HOHDVH,WLVPXWXDOO\DJUHHGWKDWLQH[FKDQJHIRUWKLV&KDQJH2UGHUDQGRWKHUFRQVLGHUDWLRQVWKH&RQWUDFWRUKHUHE\UHOHDVHVZDLYHVVHWWOHVDQGKROGVWKH
'HSDUWPHQWKDUPOHVVIURPDQ\DQGDOODFWXDORUSRWHQWLDOFODLPVRUGHPDQGVIRUGHOD\VGLVUXSWLRQVDGGLWLRQDOZRUNDGGLWLRQDOWLPHDGGLWLRQDOFRVWFRQWUDFW
H[WHQVLRQVFRPSHQVDWLRQVRUOLDELOLW\XQGHUDQ\WKHRU\ZKHWKHUNQRZQRUXQNQRZQWKDWWKH&RQWUDFWRUPD\KDYHQRZRULQWKHIXWXUHDJDLQVWWKH'HSDUWPHQW
DULVLQJIURPRURXWRIDVDFRQVHTXHQFHRUUHVXOWRIUHODWLQJWRRULQDQ\PDQQHUFRQQHFWHGZLWKWKLV&KDQJH2UGHUWKHDERYHUHIHUHQFHG3URMHFWDQGWKH
&RQWUDFW ZRUN
'HVFULSWLRQRIDPHQGPHQWPRGLILFDWLRQ
2UJDQL]HGE\8&)6HFWLRQKHDGLQJVLQFOXGLQJVROLFLWDWLRQFRQWUDFWVXEMHFWPDWWHUZKHUHIHDVLEOH
7HUPV &RQGLWLRQV$OORWKHUWHUPVDQGFRQGLWLRQVUHPDLQXQFKDQJHG
GDWHHWF
VHWIRUWKLQLWHP
&7KLVVXSSOHPHQWDODJUHHPHQWLVHQWHUHGLQWRSXUVXDQWWRDXWKRULW\RI
7+,6,7(0$33/,(621/<7202',),&$7,2162)&2175$&7625'(56
,702',),(67+(&2175$&725'(512$6'(6&5,%(',1,7(0
$7KLVFKDQJHRUGHULVLVVXHGSXUVXDQWWR
6SHFLI\$XWKRULW\
7KHFKDQJHVVHWIRUWKLQ,WHPDUHPDGHLQWKHFRQWUDFWRUGHUQRLQLWHP$
/HWWHU&RQWUDFW'XUDWLRQ7KH/HWWHU&RQWUDFW'XUDWLRQLVKHUHE\H[WHQGHGIURP$XJXVW
WR'HFHPEHU8QOHVVIXUWKHUH[WHQGHGE\DQ
DXWKRUL]HG&RQWUDFWLQJ2IILFHUWKLV/HWWHU&RQWUDFWZLOOWHUPLQDWHRQ'HFHPEHURUVKDOODXWRPDWLFDOO\EHLQFRUSRUDWHGLQWRDQGVKDOOPHUJHLQWRDQG
EHVXSHUVHGHGE\WKH'HILQLWL]HG&RQWUDFWXSRQH[HFXWLRQRID'HILQLWLYH&RQWUDFWE\DQDXWKRUL]HG&RQWUDFWLQJ2IILFHU
; '2WKHU
6SHFLI\W\SHRIPRGLILFDWLRQDQGDXWKRULW\
(,03257$17
&RQWUDFWRU LVQRW LVUHTXLUHGWRVLJQWKLVGRFXPHQWDQGUHWXUQ FRS\WRWKHLVVXLQJRIILFH
7LWOH'&056HFWLRQDQG&RQWUDFW1R
!
"
#
8.20.2025
&RQWLQXDWLRQ
3DJHRI3DJHV
&RQWUDFW5HFDS
7RWDO/HWWHU&RQWUDFW1RWWR([FHHG$PRXQW
'&$0&65)3
&RQWUDFW1XPEHU
/HWWHU&RQWUDFW
0RGLILFDWLRQ1R
RI0RGLILFDWLRQ1RWRWKH/HWWHU&RQWUDFW
0RGLILFDWLRQ1XPEHU
([HFXWHGRQ
-XQH
$GPLQLVWUDWLYH1R&RVW7LPH([WHQVLRQ
!
"
DESIGN-BUILD AGREEMENT FOR LANGDON PARK
COMMUNITY CENTER
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
GCS, INC. DBA GCS-SIGAL
CONTRACT NUMBER: DCAM-24-CS-RFP-0014
2
PROJECT INFORMATION
A. PROJECT SUMMARY
1. Project Name: Design-Build Services for Langdon
Park Community Center
2. Project Address: 2901 20th Street NE,
Washington, DC 20018
3. Agreement Type: Cost-plus fixed fee with Guaranteed
Maximum Price
4. Client Agency: District Department of Parks and
Recreation (“DPR”)
5. Design-Builder: GCS, Inc. DBA GCS-Sigal
6. Agreement Amounts:
i. Initial NTE (Exhibit A1):
Early Start Agreement (“ESA”) No. 1 with
Not-to-Exceed (“NTE”) amount of
$12,768,917.95 (including the Letter
Contract NTE amount of $990,000.00)
ii. Project Budget: $29,000,000.00
7. Design-Builder Compensation:
i. Design Fee: $1,784,345.00
ii. Design-Build Fee: $512,500.00
a. Base Design-Build Fee (60%
of the Design-Build Fee):
$307,500.00
b.
At-Risk Portion of Design-
Build Fee (40%) (Exhibit O):
$205,000.00
c. Preconstruction Fee (15% of
the Base Design-Build Fee): $46,125.00
iii. Lump Sum General
Conditions: $2,017,500.00
iv. Contingency:
Design Contingency: $202,885.47
General Contractor Contingency:
$202,885.47
3
v. Allowances:
Permit Allowance $200,000.00
Public Art Allowance $200,000.00
Owner’s Allowance $300,000.00
8. Liquidated Damages:
i. Failure to Submit Deliverables: $7,500.00 plus $500.00/day
ii. Liquidated Damages for Delay
in Substantial Completion: $750.00/day
9. Key Personnel Replacement Fee: $25,000.00
10. GMP Executed By: July 23, 2026
11. Substantial Completion Date: August 26, 2027
12. Final Completion Date: August 24, 2028
13. Administrative Term Expiration
Date: November 30, 2028
14. Letter Contract:
i. Period of Performance
From June 4, 2025 (Date of Execution of
the Letter Contract) through Execution of
this Contract
ii. NTE Amount: $990,000.00
15. GMP Basis Documents Permit Documents
16. Assumptions and Clarifications
ESA No. 1 Proposal assumptions and
clarifications, incorporated as (Exhibit
A7)
4
DESIGN-BUILD AGREEMENT
DESIGN-BUILD SERVICES FOR LANGDON COMMUNITY CENTER
DCAM-24-CS-RFP-0014
THIS AGREEMENT (“Agreement” or “Contract”) is made by and between the DISTRICT
OF COLUMBIA GOVERNMENT (the “District”), acting by and through its DEPARTMENT OF
GENERAL SERVICES (the “Department” or “DGS”) and GCS, Inc. DBA GCS -Sigal, duly
organized under the laws of District of Columbia, and with a place of business at 1140 Third
Street NE, Washington, DC 20002 (the “Design-Builder” or “Contractor”, and collectively, the
“Parties”).
RECITALS
WHEREAS, the Department issued a Request for Proposals (“RFP”) dated April 10, 2024
(the “RFP”) to engage a design-builder (the “Design-Builder” or “Contractor”) to prepare a design
for and to complete work at the existing Langdon Park Community Center located at 2901 20th
Street NE, Washington, DC 20018 (the “Project”);
WHEREAS, the Department desires that the Project be completed no later than August 26,
2027 (“Substantial Completion Date”);
WHEREAS, the Design-Builder submitted a proposal entitled Design-Build Services for
Langdon Park Community Center dated May 22, 2024 , to provide design-build services for the
Project;
WHEREAS, the Department wishes to retain the Design-Builder to provide design-build
services for the Project and the Project is to include utility investigation, design, pre-construction
services, demolition services, and construction services;
WHEREAS, the Design-Builder wishes to provide the architectural, engineering,
construction, and related services necessary to complete the Project, subject to the terms and
conditions set forth in this Agreement;
WHEREAS, the Department has retained the services of a program manager (the “Program
Manager”) to advise it concerning the Project;
WHEREAS, the Department has established a budget for the Project, including all design
fees, hard construction costs, furniture, fixtures, and equipment (“ FF&E”), and fees and general
conditions of the Design-Builder (such budget, the “Project Budget”); and
WHEREAS, the Department and the Design-Builder entered into a letter contract dated
June 4, 2025 (the “Letter Contract”) pursuant to which the Design-Builder was authorized to
proceed with certain design and preconstruction services in furtherance of the Project.
WHEREAS, while funding in the amount of $12,768,917.95 is being approved for capital-
eligible items only, there is an ineligible amount of $408,543.10, listed in Exhibit A3. See the
Non-Capital Expenditures column and associated items. These items are ineligible for capital
5
expenditure, per the District Guidelines. The goods/services are needed in FY27. 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 th e Contractor be entitled to perform
any work against these items unless authorized in advance and in writing by a duly authorized
DGS Contracting Officer via a purchase order (“PO”) for the same amount of $408,543.10. Unless
and until such PO is issued by a duly authorized DGS Contracting Officer, the Contractor will be
limited to the capital -funded PO in the amount of $11,370,374.85 for the capital -eligible work
authorized by this Contract. For the avoidance of confusion, if the Contractor performs any wor k
with the ineligible items in the amount of $408,543.10, as outlined in Exhibit A3, without express
written authorization by a duly authorized DGS Contracting Officer, the Contractor does so at its
own risk.
NOW, THEREFORE, the Department and Design-Builder, for the consideration set forth
herein, mutually agree as follows.
6
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 (“ Notice to Proceed” or “NTP”) to the
Administrative Term Expiration Date set forth in the Project Information Section above. In
addition, within this time the Design-Builder shall execute and submit a Final Release of Liens
and Claims in a form and format required by a Contracting Officer (“CO”), inclusive of providing
the Department with a complete set of any product manuals (“O&M”) and training videos, if
applicable. The Administrative Term is established for the sole purpose of permitting the
Department’s Office of the Chief Financial Officer to process payments in the event any
payments become due. Notwithstanding the foregoing, nothing herein shall be construed to:
extend the Substantial Completion Date; extend the Final Completion Date; or, limit the
Department’s ability to assess liquidated damages thereon.
Section 1.2. Agreement.
The term “Agreement” shall mean this entire, integrated agreement between the Department
and the Design-Builder with respect to the Project, consisting of this document and the Exhibits
thereto, including but not limited to the Standard Contract Provisions, the Construction Documents
released for the Design-Builder’s use and any Change Orders, Contract Modifications or Change
Directives that have been executed by the Department.
Section 1.3. Client Agency.
The governmental or quasi-governmental entity represented by the Department, requesting
the Project.
Section 1.4. Construction Documents.
The final Drawings and Specifications, as prepared, sealed by the Architect’s design
professional in accordance with the law, and issued by the Design-Builder for the purpose of
obtaining bids from potential trade subcontractors and material suppliers for use in constructing
the Project.
Section 1.5. Construction Phase Services.
Services provided throughout the construction phase during which the Design-Builder shall
carry out the bulk of the construction and manage the completion of the design for the Project.
Section 1.6. Cost of General Conditions.
The Cost of General Conditions shall have the meaning set forth in Section 8.2 of this
Agreement.
Section 1.7. Contract Documents.
The term “Contract Document” refers one or more component of the documents that
comprise the Agreement between the Department and the Design-Builder, including any
modifications or changes thereof, the Drawings and Specifications, and any addenda issued thereto.
7
Section 1.8. Design & Preconstruction Phase Services.
The services to be provided under Article 3 constituting the design & preconstruction phase
services to be performed by the Design-Builder.
Section 1.9. Drawings.
The Drawings are the graphic and pictorial portions of the Contract 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 punchlist items noted at
Substantial Completion have been completed and all documents the Design-Builder is required to
deliver to the Department as a condition to receiving final payment have been delivered.
Section 1.11. Final Completion Date.
The date established in the Agreement by which the Design-Builder shall achieve Final
Completion. The Final Completion Date may be modified only by Change Order or Change
Directive in accordance with the Agreement.
Section 1.12. Fully Complete.
To undertake all of the Work necessary to fully construct and complete the Project and
execute all tasks necessary to obtain the final certificate of occupancy for the Project from the
District of Columbia; submit final lien releases from the Design-Builder and Subcontractors and
material suppliers; complete all punch list items to the Department’s approval and sign-off; and
cause all representations, warranties and guarantees to be honored and otherwise fulfill all of the
requirements set forth in the Agreement.
Section 1.13. Guaranteed Maximum Price or GMP.
The maximum amount, including, but not limited to, the Design-Build Fee and the Cost of
the Work, that will be paid the Design-Builder to Fully Complete the Project as set forth in Article
5. The Guaranteed Maximum Price (“GMP”) may be modified only by Change Order, Contract
Modification or Change Directive in accordance with the Agreement.
The GMP shall be established in the GMP Amendment.
Section 1.14. Hazardous Material.
Any toxic substance or hazardous chemical defined or regulated pursuant to federal, state or
local laws relating to pollution, treatment, storage or disposal of waste, or protection of human
health or the environment. Such laws include, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, the Resource Conservation and
Recovery Act, the Clean Water Act, the Clean Air Act and laws relating to emission, spills, leaks,
discharges, releases or threatened releases of toxic material. The term Hazardous Materials shall
also include petroleum and petroleum bi-products.
Section 1.15. Notice to Proceed.
A written notice to proceed, signed by the Department, directing the Design-Builder to
8
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 the Design-Builder. Such
schedule shall include a baseline schedule as updated periodically by the Design-Builder, approved
by the Department and as finalized by the GMP Amendment. The Project Schedule shall not be
changed except by a Change Order or Change Directive issued by the Department. The Project
Schedule shall be in a form and contain such detail as may be agreed upon by the Parties. A
preliminary Project Schedule is attached as Exhibit B.
Section 1.17. Self-Performed Work.
Trade work performed by employees of: (1) the Design-Builder; (2) any entity that is a
partner or member of the entity comprising the Design-Builder; (3) any entity that controls, is
controlled by, or is under common control with the Design-Builder; or (4) any entity that controls,
is controlled by, or is under common control with any entity that is part of the Design-Builder.
Self-Performed Work is distinguished from trade work performed by Subcontractors unaffiliated
with the Design-Builder or the entities of which the Design-Builder is comprised.
Section 1.18. Services.
The services to be provided pursuant to the Agreement which shall include the Design &
Preconstruction Phase Services and the Construction Phase Services.
Section 1.19. Specifications.
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards and workmanship for the
Work, and performance of related services.
Section 1.20. Standard Contract Provisions.
The District of Columbia Department of General Services Standard Contract Provisions,
General Provisions (Construction Contract), as amended, are attached hereto as Exhibit J1 and
incorporated herein. The District of Columbia Department of General Services Standard Contract
Provisions, General Provisions (Architectural & Engineering Services Contract), as amended, are
attached hereto as Exhibit J2 and incorporated herein.
Section 1.21. Subcontractor.
Any person, natural or legal, to whom the Design-Builder delegates performance of any
portion of the Work required by the Agreement. The term “Subcontractor,” used without a
qualifier, shall mean a subcontractor in direct privity with the Design-Builder. “Subcontractors at
all tiers” shall mean not only those Subcontractors in direct privity with the Design-Builder, but
also those performing Work pursuant to sub-subcontracts, subsubsubcontracts, and so on.
“Subcontractors” shall include both those who are retained to perform labor only and those who
are retained both to perform labor and to supply material or equipment. “Subcontractors” shall
also include design professionals who are not the Design-Builder’s employees and to whom the
Design-Builder delegates any part of its responsibilities under the Agreement, except that
9
references to “trade Subcontractors” shall exclude design professionals.
Section 1.22. Substantial Completion.
Substantial Completion shall mean that all of the following have occurred:
A. The Project’s construction and installation work have been completed with only
minor punchlist items remaining to be completed;
B. The Project has obtained a Department of Buildings (“DOB”) Certificate of
Occupancy, final DOB Certification of Occupancy shall be received within thirty
(30) days of Substantial Completion; and all other required permits or approvals
have been obtained;
C. All Operation and Maintenance Manuals have been finalized, submitted, and
approved. All Operations and Maintenance Manuals shall be submitted to the
Department six months prior to Substantial Completion;
D. Required trainings per Turnover Manual have been scheduled within thirty (30)
days of the Substantial Completion Date; the Design -Builder shall provide final
videotaped recordings within thirty (30) days of the Substantial Completion Date;
E. Draft Warranties have been submitted and approved;
F. The Project has obtained DC Department of Health (“DOH”) approval;
G. The facility and site have been deep cleaned and cleared of any construction debris;
H. Final warranties have been submitted for material and labor for any installed,
replaced, or repaired synthetic surfaces 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;
I. The Project is ready for the Department and DPR to use it for its intended purpose;
J. All equipment, supplies, materials and items to be installed have been installed in
accordance with the manufacturer’s specifications and industry standards and have
undergone and passed the requisite testing and inspections;
K. Certificates of compliance with impact standards (IPEMA) for synthetic surfaces at
recreation spaces have been submitted to the Department; and
L. Commissioning is complete and a final punch list is documented with completion
dates established.
Section 1.23. Substantial Completion Date.
The date established herein by which the Design-Builder shall achieve Substantial
Completion. The Substantial Completion Date may be modified only by Change Order, Contract
Modification or Change Directive in accordance with the Agreement.
Section 1.24. Work.
The term “Work” refers to any and all work done in performance of the Services necessary,
at any and all phases of the Agreement, to Fully Complete the Project.
10
Article 2 GENERAL PROVISIONS
Section 2.1. Letter Contract
The Parties acknowledge that certain of the investigation, design, and preconstruction
activities described in Article 3 of this Agreement were performed pursuant to the Letter Contract
between the parties dated June 4, 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 be incorporated into and shall merge into and be superseded by this Agreement. For
avoidance of doubt, any services provided or work performed pursuant to the merged Letter
Contract, and prior to the date that this Agreement is effective, shall be governed by the terms and
condition of this Agreement.
Section 2.2. Term and Termination
The period of performance under this Agreement shall commence from the date of execution
of the Letter Contract by the Department and shall terminate upon the expiration of the
Administrative Term or upon termination by the Department pursuant to Articles 5 and 6 of the
Standard Contract Provisions (Construction) and Article 8 of the Standard Contract Provisions
(Architectural & Engineering Services Contract).
Section 2.3. Relationship of Parties.
The Design-Builder accepts the relationship of trust and confidence established with the
Department by this Agreement, and covenants with the Department to furnish the Design-Builder’s
reasonable skill and judgment and to cooperate with the Program Manager in furthering the
interests of the Department. The Design-Builder shall use its best efforts to perform the Work and
complete the Project in an expeditious and economical manner consistent with the interests of the
Department. The Department shall endeavor to promote harmony and cooperation among the
Department, Design-Builder, Program Manager, and other persons or entities employed by the
Department for the Project. In performing its duties under this Agreement, the Design-Builder
shall at all times use the standard of care used by Design-Builders that construct projects similar
to the Project in type, size and scope in large, urban areas. Whenever the term “competent” is used
herein to describe the Design-Builder’s actions or duties that term shall refer to the level of
competence customarily possessed by those Design-Builders that construct projects similar to the
Project in type, size and scope in large, urban areas.
Section 2.4. Confidentiality of Information
The Design-Builder shall assure and keep all information and data obtained throughout the
performance of the Project whether related to the Agreement, the Work in all of its aspects, the
Department and the Department’s employees confidential, during and following the term of the
Agreement, and shall not use the information in connection with any other matters; nor shall it
disclose any such information to any other person, firm or corporation, unless disclosure is required
pursuant to court order, subpoena or other regulatory authority. The Design-Builder shall not be
divulged of confidential information without the individual’s and the Department’s written consent
and only in accordance with the District’s or Federal’s laws, codes and regulations. The Design-
Builder and any Subcontractors who utilize, access, or store personally identifiable information as
part of the performance of this Agreement are required to safeguard this information and
immediately notify the Department of any breach or suspected breach in the security of such
11
information. The Design-Builder and all Subcontractors shall allow the Department to both
participate in the investigation of incidents and exercise control over decisions regarding external
reporting. The Design-Builder, Subcontractors and their respective employees working on this
Project may be required to sign a confidentiality statement.
Section 2.5. Project Description.
The Project includes full design and construction services to demolish and raze the existing, two -
level, 15,000 square foot facility and construct a new, approximately 21,000 square foot community
center in its place. The existing facility and neighboring amenities are highlighted in Table 1.1 below.
For additional information regarding the existing facility, please reference Exhibit A4 – FCA &
Space Utilization Survey.
Section 2.5.1 The new Langdon Park Community Center will include, at a minimum, the
following program amenities included in Table 1.1.
Table 1.1 – Program Amenities
Indoor Amenities: Outdoor Amenities:
Front desk & lobby with monitoring
station
Skate park
Gymnastics gymnasium (~ 6,000 square
feet)
Site landscaping
Basketball gymnasium (~ 6,000 square
feet)
ADA-accessible pedestrian paths
Boxing gym (~ 2,000 square feet) Parking lot
Restrooms Site lighting
Universal restrooms Security cameras
Locker rooms Signage
Storage rooms Accessible spine trail linking campus
amenities
Office space
Fitness center (minimum 1,000 square
feet)
Outdoor Amenity Add Alternates
Lounge Playground renovation
Large multipurpose room (~ 1,000 square
feet)
Basketball court renovation
Additional multipurpose rooms Tennis court renovation
Computer lab Volleyball court
Full-size kitchen
Electrical room
Mechanical room
Janitor’s closet
12
Data/IT room
Security system
The following items are also part of the programmatic and overall Scope of Work requirements.
i. Artwork: Furnish and install commissioned artwork as required by DGS/DPR.
Selected artist/artwork shall be local to the District of Columbia.
ii. Furnishings - Site: Furnish and install benches, fencing, signage, trashcans, bike
racks, hand sanitizing stations, and drinking fountains.
iii. Furnishings - Interior: Furnish and install furniture, fixtures, and equipment for
interior spaces as applicable and as directed by DGS/DPR.
iv. Exterior Landscaping:
▪ Furnish and install new ground cover plantings such as shrubs and native
plantings at locations to be determined by DGS and DPR.
▪ Furnish and install new bioretention planting (as applicable).
Layout/size/locations to be determined by DGS and DPR.
▪ Conduct invasive cleanup, stump remove/root grinding
▪ Furnish and install new 2–3-inch caliper canopy trees at location to be
determined by DGS and DPR.
▪ Provide arborist service for tree protection. The arborist shall evaluate the
condition of the existing trees prior to design, and throughout the Project,
including during construction. Extensive coordination with the District
Department of Transportation - Urban Forestry Division (“UFD”) will be
required, to maintain the health of the existing trees.
1. Heritage Trees to be preserved
▪ A minimum of three (3) meetings with UFD (including on-site meetings) shall
be planned. Tree protection, as directed by UFD, in coordination with the
arborist, shall be employed throughout the Project.
v. Outdoor Lighting: Provide design-build services to ensure all exterior lighting is
Dark Sky compliant and can be remotely controlled with timers and dimmers
(including the existing lights).
vi. Parking Lot: Provide design-build services for a new parking lot and entrance which
includes a sufficient amount of handicap parking spaces.
vii. Perimeter Site Fencing: Provide design-build services for a new perimeter site fence
enclosing the property that is be compliant with Exhibit A5 - Specifications for
Recreation Center Facilities.
viii. Spine Trail: Provide design-build services for a new accessible spine trail that links
all existing key elements from the library to the rest of the campus including the new
facility and amenities. This includes the tennis courts, playground, picnic pavilion,
Chuck Brown Memorial, community center, skate park, basketball courts, parking lot,
dog park, pool and splash pad, multipurpose field, forest trail, and community garden.
ix. Gymnastics Gymnasium: Provide design-build services for a dedicated gymnastics
gymnasium with spectator seating.
x. Basketball Gymnasium: Provide design-build services for a dedicated basketball
gymnasium.
13
xi. Boxing Gymnasium: Provide design-build services for a dedicated boxing
gymnasium with accompanying training equipment and boxing ring.
xii. Fitness Center: Proved design-build services for a fitness center and accompanying
fitness equipment with a minimum size of 1,000 square feet.
xiii. Skate Park: Provide design-build services for the complete removal and demolition
of the existing skate park and replacement with a new skate park with outdoor lighting.
xiv. Utilities: Provide design-build services for u tility installation, including water,
electric, gas, telecom, and storm -water management as required by the District
Department of Energy and Environment (“DOEE”).
xv. Exterior Signage: Provide all labor and materials to furnish and install DPR standard
signs that reflects language for Park Rules and notification of a Drug Free Zone, Park
Name signage. The Design-Builder shall need to consider all DGS and DPR Building
Standards, standard graphics, and language for Park Rules, Drug Free Signage, and
Park Name Signage per DPR’s standard park signage included as Exhibit A6 – DPR
Standard Signage.
xvi. Interior Signage: Provide all labor and materials to furnish and install standard
wayfinding signs. Design-Builder shall need to consider all DGS and DPR Building
Standards, standard graphics, and language for interior wayfinding signage.
xvii. Security System: Provide design-build services to coordinate with DGS Protective
Services Division and the Office of the Chief Technology Officer (“ OCTO”) to
incorporate site security requirements. The Design-Builder shall consider OCTO
requirements included in Exhibit A2 - Standards and Practices for Comm
Environments.
xviii. U.S. Green Building Council LEED® LEED Silver: DGS has committed to a
minimum target of U.S. Green Building Council LEED® Silver Certification for new
building construction. This requires the achievement of several mandatory
prerequisites and a minimum of 50 credit points across seven primary categories. The
team aspires to achieve the highest LEED® certification level possible for this project
while investing in strategies that result in the most positive impact and economy. A
preliminary LEED scorecard review indicates that silver certification is achievable.
xix. Americans with Disabilities Act: The architect/engineer (“A/E”) shall meet 2010
Americans with Disabilities Act (“ ADA”) standards and the requirements of the
Office of Disability Rights. The work must comply with current accessibility
guidelines and criteria; American s with Disabilities Act/Americans with Disabilities
Act Accessibility Guidelines ( “ADA/ADAAG”), International Building Code IBC
2012, Local/State Codes, 504 Rehabilitation Act of 1973, Title 2 of the ADA Act.
xx. If applicable, installation of any synthetic surface must comply with regulations set
forth in D.C. Code § 10-171.03.
14
As part of the design process, the selected Design -Builder will work closely with DGS, DPR, and
the community to better understand the community’s vision for the project. Design-Builder shall
attend five (5) community meetings throughout the life of the project. Design-Builder shall provide
a presentation and receive feedback to incorporate in future design phases/revisions. Design-Builder
shall highlight design changes since the previous community meeting, identifying what has been
incorporated based on feedback received and in cases where incorporation was not feasible,
explaining why.
A secure, web-based, electronic project management (“ePM”) system, ProjectTeam, shall be utilized
by the Design-Builder to accommodate the information needs of all Project participants. The ePM
system will be implemented at the beginning of the design sta ge and maintained continuously
through completion of Project closeout. All DGS and the Design -Builder’s team communications
must be captured and recorded in the ePM system. User licenses and training will be provided for
all members of the Design-Builder’s team who will require access to the ePM system. The members
of the Design-Build team shall be required to be trained on ProjectTeam, and shall be responsible
for viewing trainings at www.projectteam.com/dgs.
Section 2.5.2 Project Sustainability Requirements
LEED and Green Construction Code requirements: The Project shall be designed in such a way
to incorporate, at a minimum, LEED Silver. Evaluation will be required to determine if the level of
renovation qualifies for LEED certification; if the Project does qualify the District will require the
innovation LEED Pilot Credit – Integrative Process for Health Promotion
(https://www.usgbc.org/credits/new-construction-core-and-shell-schools-new-construction-retail-
new-construction-healthc-106), green roof credits through the Department of Energy and
Environment (“DOEE”) Stormwater Retention Credit program and RiverSmart Rooftops Rewards
and Rebate program), and Energy Star Certification. The Design -Builder will be responsible for
applying for a nd achieving Energy Star Certification and filing the DOEE Stormwater Retention
Credit and RiverSmart Rooftops registration forms. The Design-Builder shall also comply with the
recently adopted International Green Construction Code.
Net Zero Energy and Energy Consumption requirements: In addition, the District is requiring
the Project become a Net Zero Energy building, and the Department requires the Design -Builder to
achieve net zero energy strategies in the building’s design and certification through either the
International Living F uture Institute’s (“ILFI”) Zero Energy Building program or U.S. Green
Building Council’s (“USGBC”) LEED Zero program. The Design -Builder shall make
recommendations on the most advantageous certification p rogram to the District, but the final
determination of credentialing shall be made by the District. The community center’s solar
photovoltaic panels will be purchased, installed, and maintained through the Department by entering
into a separate solar power purchase agreement. The Design-Builder shall conform to the DC Energy
Conservation Code (DC ECC) in its Appendix Z, a voluntary appendix that sets the standard for net-
zero energy construction for commercial buildings within the District. Specifically, the Project shall
achieve a site energy use intensity (“EUI”) of 40-18 units or less. The exact achieved Site EUI must
be low enough to be realistically 100% offset with onsite solar PV on an annual basis to meet the
building’s net zero energy goal. Net Zer o Energy balancing calculations shall use 100% onsite
15
renewable energy generation. The use of Renewable Energy Credits (RECs) shall not be factored
into the NZE calculations.
Heat Pump System requirements : A ground -source heat pump system for the Langdon Park
Community Center’s space and domestic hot water is preferred. Next best is water or air source heat
pumps. Electric resistance heating is disfavored, unless used for small, secondary loads. Natural gas-
based heating systems shall only be used for emergency backup generator(s).
Solar-Readiness requirements: The Design-Builder shall make the Project solar-ready by running
electrical conduit for future solar locations on roofs and/or facades and building steel canopies to
support solar in the future in consultation with the Department’s solar owner representat ive. The
Design-Builder shall also work with the DGS Sustainability and Energy Management Division and
solar owner representatives to ensure the roof can structurally support solar PV loads and to maximize
available rooftop square footage for solar PV equi pment. The Department’s solar owner
representative will collaborate with the Design -Builder on estimating PV capacity. If solar PV
capacity on the rooftop cannot reasonably meet the building’s NZE Site EUI, the Design -Builder
shall also design-build steel canopy structures to support solar PV over parking or play area in a way
that does not obstruct waste hauling or other site operations. Solar panels, inverters, and PV balance
of system material procurement and labor costs shall remain outside of the Design-Builder’s scope.
While it is assumed solar panels will be a part of the design to achieve Net Zero Certification, it shall
be not the only strategy to achieve the Project goals. The Design-Builder shall present iterative design
options to the Department and DPR to ensure the net zero energy goals are in alignment with program
goals for the community center.
Section 2.6. Program Manager.
The Department has engaged a Program Manager to provide certain program management
functions. Such Program Manager shall, at all times, be acting solely for the benefit of
the Department, not the Design-Builder.
The Design -Builder hereby acknowledges and agrees that only a duly authorized and
designated contracting officer shall have the authority to issue Change Orders or Change
Directives on the Department’s behalf. As of the date that this Agreement is signed, the
Department’s duly authorizing contracting officers are set forth in Exhibit I.
Section 2.7. General Description of Design-Builder’s Duties and Responsibilities.
Generally, the Design-Builder’s responsibilities shall include, but will not be limited to, the
following:
a) To confirm the design and construction of the Project in accordance with the RFP Documents,
including all applicable attachments.
b) To provide all design, demolition, construction, and construction management services
necessary to implement the goals of the Project inclusive of, but not limited to, the following:
(i) civil, architectural, electrical, structural, and mechanical design services as required for
the Project; and (ii) construction management services inclusive of budgeting, value
16
engineering (“Value Engineering”), scheduling, Project phasing, Project administration,
management, and coordination of subcontractors. Design scope shall also include full design
and specifications, with minimum of two options for basis -of-design for each, of the FF&E
for GMP pricing.
c) To conduct subsurface investigation work if and as required for the Project.
d) To furnish and provide all materials, management, personnel, equipment, hazardous material
abatement, supervision, labor and other services necessary to complete the Project.
e) To provide the necessary design, consultants and documentation for all permitting, zoning,
historic preservation and US Commission of Fine Arts approvals. Prior to the installation of
a boiler, stationary generator, or any other source of emissions subject to these rules, the
Design-Builder shall obtain Chapter 2 and Chapter 3 air quality permits from the Department
of Energy and Environment (“DOEE”). To provide move coordination and logistics support
for the Project.
The Design-Builder shall perform the Services in a professional workmanlike manner. The Design -
Builder shall supply and furnish at the location where the Work is to be performed all design service,
labor, materials, equipment, tools, services, and supervis ion, and shall bear all items of expense,
necessary to complete and satisfactorily perform this Agreement, except such items that the
Department, in this Agreement, specifically agrees to supply or furnish to or for the use of Design -
Builder. Any labor, materials, equipment, tools, services or supervision not specifically described in
this Agreement, but which may be fairly implied as required thereby or necessary to properly
complete the Work, shall be deemed within the Scope of the Work and shall be provided by Design-
Builder at Design-Builder’s sole expense.
The Design-Builder will be required to work with the Department and DPR through a collaborative
design process to advance the programmatic needs to a fully realized Project in accordance with the
available Project Budget. The Design-Builder will be required to engage in extensive preconstruction
efforts to ensure that the design is developed in a manner consistent with the Department’s goals for
the Project (e.g., programmatic, budgetary, schedule and quality); and to develop a comprehensive
Project phasing.
The Design-Builder will also be required to provide logistics support, plan to solicit competitive trade
bids for the construction work, including all required inspections for material testing, code
inspections, and industrial hygienist and to develop an acceptable GMP and corresponding scope and
schedule for the Work; and to implement the requisite construction and other work necessary no later
than the Substantial Completion Date. The Design -Builder will be required to provide a “turn-key”
Project ready for its intended use and shall be responsible for all items of cost except for those items
set forth in Section 9.7 of this Agreement.
Section 2.8. Warranties and Representations
2.8.1. All disclosures, representations, warranties, and certifications the
Design-Builder makes in its proposal in response to the RFP shall remain
binding and in effect throughout the term of the Agreement. The
Design-Builder reaffirms that all such disclosures, representations,
warranties, and certifications are true and correct.
17
2.8.2. If any disclosure, representation, warranty or certification the Design-
Builder has made or makes pursuant to the RFP or the Agreement,
including, without limitation, representations concerning the Design-
Builder’s construction or design experience and qualifications, claims or
litigation history or financial condition, is materially inaccurate, that
shall constitute a material breach of the Agreement, entitling the
Department to any and all available remedies.
2.8.3. The terms and conditions of this Section 2.8 shall apply during both the
Design & Preconstruction and Construction Phases.
Section 2.9. Responsibility for Agents and Contractors.
At all times and during both the Design & Preconstruction and Construction Phases, the Design-
Builder shall be responsible to the Department for any and all acts and omissions of the Design-
Builder’s agents, employees, Subcontractors including modular building
supplier/manufacturer/installer, Sub-Subcontractors, material suppliers, and laborers, and the
agents and employees of the Subcontractors, Sub-Subcontractors, material suppliers, and
laborers performing or supplying Work in connection with the Project.
18
Article 3 DESIGN-BUILDER’S DESIGN & PRECONSTRUCTION SERVICES
Section 3.1. Preconstruction Services.
During the Design and Preconstruction Phase, the Design -Builder, in consultation with the
Department, shall : (i) develop conceptual plan and cost estimates; (ii) develop a draft final
conceptual site plan/response and cost estimate; (iii) prepare and submit soft and hard copies of the
complete set of 35% Schematic Design Documents; (iv) prepare and submit soft and hard copies of
the complete set of 60% Design Development Documents, Specifications and the Design-Builder’s
cost estimate and schedule; (v) prepare soft and hard copies of the complete set of 95% Construction
Documents, Specifications and Design-Builder’s cost estimate and schedule; (vi) review existing
condition assessment and recommendation; and (vii) obtain all necessary building permits to
support the Project Schedule . Without limiting the generality of the foregoing, during the
Preconstruction Phase, the Design -Builder shall: (i) work with its Architect and any design
consultants to advance the design for the Project in consultation with the C lient Agency, the
Department, and its Project Manager; (ii) obtain bids from trade subcontractors to perform the work
described in the Permit Documents and provide bid tabulations to the Department; (iii) engage in
any Value Engineering and scoping exercises necessary to return the cost of the work to the Project
Budget; (iv) engage in preconstruction activities, including identifying any long -lead items; (v)
develop a GMP proposal for the Project; and (vi) enter into a GMP for the Project. Throughout the
Design & Preconstruction Phase, the Design -Builder shall schedule and attend regular meetings
with the Department, the Program Manager, and the Design -Builder’s Architect. A list of
preconstruction deliverables is set forth in Exhibit C.
Section 3.1.1 Initial Deliverables
As part of the Preconstruction phase , the Design -Builder shall prepare and provide the following
initial deliverables:
Section 3.1.1.1 Baseline Schedule. Within ten (10) days after the Preconstruction NTP is issued,
the Design-Builder shall prepare and submit a Baseline Schedule for the Project (the “Baseline
Schedule”). The Baseline Schedule shall be subject to review and approval by the Department,
and the Design-Builder shall incorporate such adjustments to the Baseline Schedule as may be
reasonably requested by the Department. The Baseline Schedule shall be prepared in a critical
path method (“CPM”) in a sufficient level of detail to permit the D epartment and the Design -
Builder and any other affected parties to properly plan the Project. The Baseline Schedule shall
include but not be limited to the following key milestones:
a) Construction Management Plan Submission (within 14 days of NTP).
b) Concept Design Submission (within 9 weeks of NTP).
c) Concept Design Department review period (14 days).
d) Early Start Agreement(s) Submission Date(s).
e) Schematic Design Submission.
f) Schematic Design Department review period (14 days).
g) Design Development Submission.
h) Design Development Department review period (21 days).
i) Permit Documents Submission(s).
j) Permit Documents Department review period (21 days)
19
k) Project Bidding
l) GMP Submission Date.
m) GMP Department review and approval
n) Anticipated Permit approval(s).
o) Construction Documents Submission
p) Release dates for the key subcontractors and long-lead materials, include the following,
if applicable:
a. Elevator(s);
b. Switchgear;
c. Transformer;
d. Generator;
e. Security cameras;
f. Door hardware;
g. Playground equipment;
h. Kitchen equipment;
i. Furniture; and
j. Windows, storefront, and curtainwall.
q) Excavation completion.
r) Below-grade structure completion.
s) Above-grade structure completion.
t) O&M final submission (required 6 months before Substantial Completion).
u) Temporary weather-tight completion.
v) Weather-tight completion.
w) Permanent power completion.
x) Mechanical, engineering, and plumbing (“MEP”) systems operational.
y) Sitework completion.
z) Building trade inspections, include the following trades:
a. Elevator;
b. Plumbing;
c. Mechanical;
d. Electrical;
e. Fire Alarm; and
f. Sprinkler.
aa) Final building inspection.
bb) DOB COO application review period (10 days).
cc) Conditional or Final Certificate of Occupancy obtained.
dd) Post Occupancy Monitoring period
The Baseline Schedule shall include durations and logic ties for those building systems that the
Design-Builder is recommending for replacement. The Baseline Schedule must also be submitted
in Primavera 6 native format and shall be updated by the Design -Builder, at a minimum, on a
monthly basis.
Section 3.1.1.2 Concept Design. No later than nine (9) weeks after the Preconstruction NTP is
issued, the Design -Builder shall prepare and submit a proposed concept design. As part of the
concept design phase, the Department requests three (3) concept options or alternatives. Each of
20
the concept designs shall contain at least the level of detail contemplated in industry best practices
for a concept design. The Department shall have the right to disapprove the concept design
submittal for any reason. Following review of the concept desi gn submissions by DPR and the
Department, the Department shall approve a final concept design. The Design -Builder shall
revise the concept design submission as necessary to incorporate comments, feedback and other
direction provided by DPR and the Departme nt. The Design-Builder’s pricing shall assume that
such revisions will be required, and such revisions shall not entitle the Design -Builder to
additional compensation.
Section 3.1.1.3 (a) Preliminary Budget Estimate. Concurrently with the delivery of the concept
design, the Design -Builder shall submit a detailed cost estimate of the proposed design (such
estimate, the “Preliminary Budget Estimate”). With regard to building systems (i.e. roofs, doors,
HVAC, security, IT, etc.), the Preliminary Budget Estimate shall be prepared on a “system” basis
that identifies the key building systems or functions and allocates an estimated cost for each such
system. The Design-Build Fee, the cost of general conditions, and contingencies shall be broken
out in separate line items. The primary purpose of the Preliminary Budget Estimate is to aid the
Department and the Client Agency in understanding the costs assoc iated with key elements of
the Project to better prioritize and manage the use of the funding allocated to this Project. All
estimates shall be broken out into three categories: renovation, new construction, and site work,
where applicable.
Section 3.1.1.3 (b) Baseline Budget and Program. The Department shall provide the Design -
Builder with a baseline budget and program and comments on the concept design. Such approval
shall be provided (or signed by) the Department’s Deputy Director for Capital Construction (the
“Deputy Director”). In the event the Design -Builder does not receive such approval within
fourteen (14) days after submitting the Preliminary Bud get Estimate, it shall so advise the
Program Manager (“PM”), the Deputy Director, and the Contracting Officer in writing of such
failure and request direction. If the Design -Builder fails to provide such notice, the Design -
Builder will be proceeding at its own risk and will be responsible for any redesign costs associated
with budget revisions.
Section 3.1.1.4 Construction Management Plan. The Design-Builder shall submit a draft of
its construction management and Project phasing plan (“Construction Management Plan”) within
fourteen (14) days after the Preconstruction NTP is issued to include, but is not limited to, noise
control, hours for construction and deliveries, truck routes, trash and debris removal plan, traffic
and parking control, communications procedures, emergency procedures, quality control
procedures, dust control, publ ic street cleaning and repair, planned occupancy of public ways,
erosion control, tree protection plan, vibration monitoring, existing and adjacent building surveys
plan, temporary fire protection measures, Project signage, pest control, construction staging
plan, and construction logistics plan.
Section 3.1.1.5 Additional Preconstruction Services. In addition to those items enumerated
above, the Design -Builder shall provide such preconstruction services as are necessary to
properly advance the Project. These services shall include, but are not limited to, scheduling,
estimating, shop -drawings, the o rdering of long -lead materials, condition assessments,
conservator studies, archeological studies, recommended testing, additional geotechnical testing,
21
and monitoring of historic assets.
Section 3.1.1.6 Disincentive Fee for Failure to Timely Provide Deliverables. The Design -
Builder acknowledges that the Department is engaging the Design -Builder to provide an
extensive level of preconstruction support services to minimize the potential for cost overruns,
schedule delays or the need for extensive Value Engineering/re-design late in the Project and that
the deliverables required under Section 3.1.1 are key to identify the value of such services. In
the event the Design-Builder fails to deliver any of the deliverables required in Section 3.1.1 (and
unless such failure is the result of any event of Force Majeure), the Design -Builder shall be
subject to a disincentive fee in an amount of Seven Thousand Five Hundred Dollars ($7,500) plus
Five Hundred Dollars ($500) per day after receiving written notice from the Contracting Officer
of failure to submit such deliverables.
Section 3.2 Design Management
Between the time the Preconstruction NTP is issued and the time the GMP is accepted by the
Department, the Design-Builder shall use commercially reasonable best efforts to ensure that: (i) the
design evolves in a manner that is consistent with the Departme nt’s budget and programmatic
requirements, as the same were defined and established by the Department at the end of the concept
design; (ii) the design work is properly coordinated; and (iii) the required design deliverables are
produced on or before the d ates contemplated in the Project Schedule. As part of this undertaking,
the Design-Builder shall provide the following:
Section 3.2.1 Schematic Design. The Design -Builder shall prepare a schematic
design for the Project that is a logical development of the approved concept design
and is consistent with the Department’s schedule, budget and programmatic
requirements. The schematic design shall contain at least the level of detail
contemplated in industry best practices for a schematic design. The design submittal
shall specifically identify any deviations from the approved concept design and shall
explain the rationale, cost, and time implications associated with such deviation. The
Department shall have the right to disapprove the schematic design submittal for any
reason. The Design -Builder shall provide maintenance and repair cost services for
major design components and MEP systems selected at the schem atic design phase,
which includes conducting a 40-year life cycle cost analysis, which includes a detailed
list of replacement costs, maintenance costs, an estimate of repair costs, anticipated
energy costs, and a list of other relevant life cycle costs. Following a review of the
schematic design submission by DPR and the Department, the Design -Builder shall
make revisions to the schematic design submission as necessary to incorporate
comments, feedback, and other direction provided by DPR and the Department. The
Design-Builder’s pricing shall assume that such revisions will be required, and such
revisions shall not entitle the Design-Builder to additional compensation.
Section 3.2.2 Schematic Budget Update. Concurrent with submission of the
schematic design, the Design-Builder shall submit a budget update. The budget update
shall be submitted in the same format as the preliminary budget estimate and shall
show variations from preliminary budget estimate. The Design-Builder shall include
a cost estimate and value engineering analysis and detailed recommendation for
22
Project savings (even if the Project is not over budget). To the extent the budget
update shows an overrun from the approved budget, the Design -Builder shall submit
value engineering (not scope reductions, but true value engineering that allows the
design to meet all Project requirements within budget) suggestions that would return
the Project to budget. Only the Department shall have the authority to increase the
Project budget, and absent such direction, the Design -Builder shall proceed on the
assumption that the budget remains as originally directed by the Department.
Section 3.2.3 Constructability/Sole Source/Long-Lead Time Memorandum.
Concurrently with the Schematic Design Budget Estimate, the Design -Builder shall
prepare a memorandum identifying key construction concerns related to the Project.
Such memorandum shall: (i) assess the constructability issues related to the Project,
including site logistics; (ii) identify any items where the design is predicated on a
single manufacturer and, if so, identify at least two (2) comparable products; and (iii)
identify any long -lead delivery items that could adversely affect the schedule
contemplated in this RFP. To the extent any such long -lead items are identified, the
memorandum shall make recommendations for addressing such items.
Section 3.2.3.1 Early Start Work & Long Lead Materials
The Department may release the Design -Builder to commence Early Start Work
including but not limited to hazardous material abatement, interior demolition,
exterior demolition, raze permit approval, geothermal, below grade work, utility
work, or other early activities, as applicable. It is envisioned that this work may be
released by the Department in advance of the GMP.
If the Design-Builder believes an earlier release is required in order to meet the Project
Schedule, it shall advise the Department and make a recommendation as to the
requested release date. Any decision to authorize an early start shall be made by the
Department in its sole and absolute discretion.
Section 3.2.4 Design Development. The Design-Builder shall prepare a set of Design
Development Documents that is a logical development of the approved schematic
design and is consistent with the Department’s schedule, budget and programmatic
requirements. The Design Development Documents shall contain at least the level of
detail contemplated in industry best practices for Design Development Documents.
The design submittal shall specifically identify any deviations from the approved
schematic design and shall explain the rationale and cost implications associated with
such deviation. The Design -Builder shall include a cost estimate and Value
Engineering Analysis and Detailed Recommendation for Project savings (even if the
Project is not over budget). The Design-Builder shall provide maintenance and repair
cost services, which includes conducting a 40 -year life cycle cost analysis, which
includes a detailed list of replacement costs, maintenance costs, an estimate of repair
costs, anticipated energy costs, and a list of other relevant life cycle costs. The Design-
Builder shall further refine and expand upon the Maintenance and Operations Plan
that was submitted in the schematic submission under Section 3.2.1. The Department
shall have the right to disapprove the Design Development Documents submittal for
any reason.
23
Section 3.2.5 Permits. The Design-Builder shall be responsible for preparing and
submitting all of the required permit applications that are necessary to complete the
Project. The Design-Builder shall develop a list of the required permits and shall track
the progress of all such permits through the review process. The Design-Builder shall
update the Department with the status of each permit that is required for the Project.
The Design-Builder shall engage such permit expediters as the Design-Builder deems
necessary or appropriate in light of the Project’s schedule. The Design -Builder shall
participate in DOB’s Velocity accelerated plan reviews and permit approval program
as part of the permit allowance included in this agreement. The Design-Builder shall
provide the resources necessary to support these requirements.
Section 3.2.6 Entitlements. The Design-Builder shall prepare, as part of the design
and pre -construction phase, such materials and make such presentations as are
necessary to obtain the required land use and entitlement approvals. Approvals may
be required from but not limited to : (i) the Office of Zoning ; (ii) Office of Planning
(“OP”); and (iii) the Commission of Fine Arts (“CFA”).
Section 3.2.7 Mid-Point Construction Document Review. Based on the Permit
Set and any approved value engineering, the Design-Builder shall cause the
Architect to prepare a set of Construction Documents. It is contemplated that
the Construction Documents may be issued in several different sets (i.e.
architectural, electrical, mechanical, structural, etc.). As each such set reaches a
point where it is approximately Fifty percent (50%) complete, the Design-Builder
shall prepare and submit a progress printing to the Department for its review and
comment.
Section 3.2.8 Construction Document Review & Coordination. The Design -
Builder shall complete each of the Construction Documents packages in a manner
that addresses the concerns raised by the Department during the review contemplated
in this Section 3.2.8 for such package. The Design-Builder shall issue one or more
set of permit documents to the Department for its review and approval (“Permit
Set”). With regard to each such set, the Design -Builder shall highlight (or bubble)
any aspect of the design that represents a material deviation from the Permit Set and
shall address in a narrative format the impact, if any, such departure shall have on
the Project’s aesthetics, functionality or performance. The Department shall have the
right to disapprove the Construction Documents for any reason. If the Department
disapproves the Construction Documents, the Design-Builder will not be entitled to
any additional compensation. If, however, the Department disapproves a
Construction Document that is a logical extension of the Permit Set, the Design -
Builder will be entitled to an adjustment to the GMP and/or the Project Schedule
unless such a package departs from the Scope of Work fairly reflected in the GMP
Drawings and Specifications and in such event the Design-Builder shall be required
to prepare a revised design that complies with the GMP drawings and specifications
(“Drawings and Specifications”) and without any entitlement to an increase in the
GMP or an adjustment of the Project Schedule.
24
Section 3.2.9 Code Review. The Design-Builder shall submit the Permit Set to the
DOB in order to obtain the necessary building permits to construct the Project. The
Design-Builder shall monitor the permit process and shall incorporate any changes
or adjustments required by the Code Official. The Design -Builder shall also issue
any such changes to the Department for its review and approval. In this submittal,
the Design -Builder shall highlight (or bubble) any aspect of the design that
represents a material deviation from the permit set documents and shall address in a
narrative format the impact, if any, such departure shall have on the Project’s
aesthetics, functionality or performance. Subsequent to obtaining the necessary
building permits, the Design -Builder shall prepare o ne or more sets of “issued for
construction documents” (the “IFC Set(s)”).
Section 3.2.10 Design Changes. If it should become necessary to amend any of the
approved IFC Set(s), the Design-Builder shall prepare an amendment to the drawings
and shall submit such amendment to the Department for its review and approval. In
this submittal, the Design-Builder shall highlight (or bubble) any aspect of the design
that represents a material deviation from the permit set documents and shall address
in a narrative format the impact, if any, such departure shall have on the Project’s
aesthetics, functionality or performance. In the event the Department does not approve
such document within ten (10) business days after issuance, unless otherwise denied,
such document shall be deemed approved, provided however that the Department has
not advised that such document is still under review.
Section 3.2.11 Third Party Contractors. The Department will hire third party
contractors for plan review and for testing and material inspections. The Design-
Builder shall coordinate and work with the Project Manager and third-party plan
reviewer during the building permit process.
Section 3.2.12 Final Maintenance and Operations Plan. The Design-Builder shall
submit, for the Department’s review, a final Maintenance and Operations Plan. The
Maintenance and Operations Plan shall be based on the final IFC Set(s). The
approved Maintenance and Operations Plan shall form the basis of the De sign-
Builder’s maintenance of the building following Substantial Completion.
Section 3.3 Building Information Modeling.
Building Information Modeling (“BIM”), Exhibit R, is required to be used throughout the facility
lifecycle, including all Project phases from Project planning and concept design through
construction, as -builts, and into facilities management. The Design -Builder must work
collaboratively with all Project stakeholders. It is expected by the Department that all the Design-
Builder’s team members are to be committed to the use of BIM in the Project, share their ideas of
BIM expertise with the Design -Builder’s te am, provide BIM data as requested by other
stakeholders, look for cost savings and schedule improvements during the entire Project duration,
and endeavor to leave as a legacy a fully updated, as built, facility management ready building
information model.
25
Article 4 FORMATION OF GMP PROPOSAL
Section 4.1. General.
During the Design & Preconstruction Phase, the Design-Builder shall cause the Architect
to prepare the GMP Basis Documents. Based upon the GMP Basis Documents, the Design-Builder
shall propose a GMP (referred to as the “GMP Proposal”) which shall be submitted in accordance
with this Article. The Design-Builder acknowledges and understands that the GMP Basis
Documents will be incomplete at the time it submits its GMP Proposal. Although complete
construction documents will not be available and many details will not be shown on GMP Basis
Documents or will otherwise need to be adjusted, the GMP proposed in the Design-Builder’s GMP
Proposal shall be intended to represent the Design-Builder’s offer for the Final Completion of
the Project. If the Design-Builder’s GMP Proposal is acceptable to the Department, it shall
be memorialized in the form of an amendment to this Agreement (such amendment, the “GMP
Amendment”). Such amendment shall be in the form of Exhibit L attached hereto.
As part of the GMP Amendment, the Design-Builder shall certify that the GMP established
thereby: (i) contains sufficient amounts to perform all Work necessary for the Final Completion of
the Project; and (ii) contains sufficient amounts to provide and construct any items or facilities that
are not contained in the GMP Basis Documents but which are necessary for a fully functioning
facility that meets the programmatic requirements established for the Project. The Design-Builder
will further covenant and agree in the GMP Amendment that it will perform all of the construction
work necessary for the Final Completion of the Project, including, without limitation, aspects of
the Work that are not shown on the GMP Basis Documents but which are a logical development
of the design intent reflected in the GMP Basis Documents, for an amount not to exceed the
GMP.
Section 4.2. Review of GMP Basis Documents.
The Department has selected the Design-Builder, in large part, because of its special
expertise in constructing similar projects. Before submitting its GMP, the Design-Builder shall
review the GMP Basis Documents for accuracy, constructability, and completeness and shall
bring such deficiencies to the attention of the Department and shall cause its Architect to address
any such deficiencies. To the extent that any such deficiencies in the GMP Basis Documents could
have been identified by such review by a competent Design-Builder, such deficiencies shall not be
the basis for a change in the GMP or delaying the Project Schedule.
Section 4.3. Contingency.
The Cost of the Work shall include a contingency, which shall be a sum established by the
Department and the Design-Builder to cover, among other things costs necessary to address scope
expansion that is a logical development of the design, issues arising from or as a result of
deficiencies in the GMP Basis Documents and other costs which are properly reimbursable as Cost
of the Work but not the basis for a Change Order, such as costs that were not reasonably foreseeable
as of the effective date of this Agreement, including such items as emergencies, unforeseeable
changes in market conditions for materials or labor, or subsurface, soils or site conditions that were
neither known nor reasonably discoverable as of the effective date of the Agreement (the
“Contingency”). During the Construction Phase, the Design-Builder shall keep the Program
Manager informed as to the status of the Contingency and shall, at a minimum: (i) advise the
26
Program Manager or any significant draws upon the Contingency in a timely manner; and (ii)
provide the Program Manager with running status of the Contingency balance at least once every
two (2) weeks.
Section 4.4. Trade Bids.
Section 4.4.1. Subcontractors and Suppliers; Bidding Procedures.
During the Design & Preconstruction Phase, the Design-Builder shall
seek to develop subcontractor interest in the Project. Within fifteen (15)
days after the completion of the schematic design, the Design-Builder
shall provide to the Department for its review and approval a written
submission on the proposed bidding procedures. Such procedures shall
include: (i) a list of proposed trades packages; (ii) a list of trade
subcontractors that will be invited to bid on each such package; and (iii)
a narrative description of the process. At least three (3) potential
subcontractors shall be identified for each trade package. In addition to
the information normally required in such bids, the Design-Builder shall
also require subcontractors to provide an estimate of the percentage of
labor hours performed in completing the subcontracted work that will be
performed by District residents. A copy of this deliverable must be
submitted to both the COTR and the Contracting Officer. In the event
the Department does not approve the proposed bidding procedures
within fifteen (15) days after its receipt, such procedures shall be deemed
approved unless the Department advises that such is still under review.
Section 4.4.2. Bidding. Following the Department’s approval of the
Permit Set, the Design-Builder shall manage the trade bidding process
in accordance with the approved bidding procedures and shall use
commercially reasonable best efforts to solicit at least three (3) qualified
and bona fide bids for each trade package that has an expected value in
excess of One Hundred Thousand Dollars ($100,000.00). Trade
packages shall not be parceled, split or divided to avoid the $100,000.00
threshold. In addition to the information normally required in such
bids, the Design-Builder shall also require subcontractors to provide
an estimate of the percentage of labor hours performed in completing
the subcontracted work which will be performed by District residents.
The Design-Builder shall carefully document its procedures for making
available bid packages to potential
bidders, the contents of each bid package, discussions with bidders at
any pre-bid meetings, bidders’ compliance with bid requirements, all
bids received, the Design Builder’s evaluations of all bids, and the basis
for the Design-Builder’s recommendation as to which bidders should be
chosen. The Department shall be afforded access to all such records at
all reasonable times so that, among other things, it may independently
confirm the Design Builder’s adherence to all requirements set forth in
27
the Agreement, including, without limitation, affirmative action
requirements and subcontracting requirements.
Section 4.4.3. Bid Tab. As part of the negotiations leading up to the
GMP, the Design-Builder shall provide to the Department tabulations of
the trade bids solicited and copies of all trade bids. In general, the bid
tab shall be presented in tabular format that compares the bids received
and any other relevant information (i.e. exclusions, past performance
history, etc.). The bid tabulation shall include scope assessments and
identify required leveling of the trade submitted. To the extent that the
Design Builder’s award recommendation is based on scoping
adjustments, the Design-Builder shall clearly identify the scoping
adjustment and the need for such adjustments. Such bid tabulation shall
include LSDBE utilization information in addition to price and other
information. Such bid tabulations as well as copies of the bids shall be
submitted to the Department’s Program Manager. The Design-Builder
represents and warrants that the bid tabs so submitted shall fairly
represent the results of the subcontractor bidding process and that the
Design-Builder shall not misrepresent any such data to the Department
or its Program Manager.
Section 4.5. Value Engineering.
Based on the trade bids received, the Design-Builder shall prepare a written report of
suggested value engineering strategies necessary to reconcile the costs of constructing the Project
budget, if necessary. The Design-Builder shall meet with the Department’s representatives to
discuss any value engineering and changes in scope necessary to ensure that the Department’s
schedule and programmatic requirements are met and that the budget is not exceeded. The Design
Builder shall cause the Architect to implement and price any approved value engineering strategies.
Section 4.6. Basis of Guaranteed Maximum Price.
The Design-Builder shall include with the GMP Proposal a written statement of its basis,
which shall include:
4.6.1. A list of drawings, specifications, addenda, general, supplementary and
other conditions on which the GMP is based.
4.6.2. A list of Unit Prices and Allowance Items and a statement of their basis.
The Design-Builder shall include the following allowances: .
1. Permit Allowance (including cost for DOB’s Velocity Program)
($200,000.00),
2. Public Art Allowance ($200,000.00), and
3. Owner’s Allowance ($300,000).
4.6.3. A list of the clarifications and assumptions made by the Design Builder
in the preparation of the GMP Proposal to supplement the information
28
contained in the Drawings and Specifications, noting in particular any
exclusions. The assumptions and clarifications shall take precedence
over the Drawings and Specifications. The Design-Builder shall prepare
a separate memorandum that highlights any differences between the then
approved drawings and the modifications made in the assumptions and
clarifications. Such memorandum shall specifically address any changes
in the Project’s aesthetics, functionality or performance.
4.6.4. The proposed GMP, including a statement of the detailed cost
estimate organized by trade categories, allowances, Contingency, and
other items and the fee that comprise the GMP.
4.6.5. An update to the Project’s schedule to which the Design-Builder
will agree to be bound. This update shall be prepared in the same level
of detail and in the same manner as the Baseline Schedule, and without
any change to the Substantial and Final Completion Dates unless
approved by the Department’s Contracting Officer.
4.6.6. A subcontracting plan setting forth the names and estimated dollar
volume of the work that will be perform by local, small, and
disadvantaged business enterprises, as certified by the Department of
Small and Local Business Development, upon which the GMP is
based.
4.6.7. A summary of Capital Cost vs Operating Cost Eligibility.
4.6.8. A list of Additive Alternates or Deductive Alternates with defined
executable dates, if any.
4.6.9. GMP and any Council Package cost estimate summary shall be broken
down into two categories as applicable: Renovation and Sitework.
4.6.10. Each GMP may include an agreed-upon sum as the Design -
Builder’s Contingency and the Owner Allowance (s), each of which
shall be identified as a separate line item in the GMP’s Schedule of
Values.
A. Construction contingency
i. The Design -Builder’s Contingency shall be utilized to
compensate for the increased Cost of the Work incurred by the Design-
Builder due to unforeseen circumstances relating to construction of
that Project which resulted in an unavoidable increase in costs, except
when deemed the responsibility of the Department in accordance with
this Contract. If the Design-Builder fails to include all of the required
scope of work in the bid packages, Design -Builder Contingency may
be used to purchase the omitted scope, u ntil the Design -Builder’s
29
Contingency balance reaches zero or until the balance equals the
anticipated subcontractor modifications. All requests to use the
Design-Builder’s Contingency shall be submitted as a Request for
Change Order (“RCO”). Charges to the Design -Builder’s
Contingency shall not become due and payable until the RCO is
approved in writing by the Department’s Contracting Officer and
becomes a Change Order. If the Design -Builder’s Contingency
reaches zero, any cost overruns or charges that could have been
charged to the Design -Builder’s Contingency shall be the sole
responsibility of the Design-Builder.
ii. If bids are received below the applicable line items in the GMP,
the surplus will be added to the Design-Builder’s Contingency for that
Project. If bids exceed the agreed -upon line items in a GMP, the
deficiency will be charged to the Design -Builder’s Co ntingency for
that Project, however, such events shall not be cause to increase the
GMP.
iii. Once all subcontracts anticipated by a GMP have been
awarded, including any self -performed work, the Department may
require the Design -Builder to reduce the Design -Builder’s
Contingency to an amount as agreed to by the parties to reflect the
Design-Builder’s risk from that point in the Project forward.
iv. Upon Final Completion of the Project, any remaining Design -
Builder’s Contingency, if any, shall be reduced to zero by a Contract
Modification and the Design -Builder shall have no entitlement to the
balance.
B. Owner contingency
i. The Department retains the right to increase the GMP in lieu
of charging any cost to the Owner contingency. Any unused
Contingency, whether Department Contingency or the Design-Builder
Contingency, shall be reconciled to a zero balance via a Contract
Modification upon Final Completion.
ii. When the Design -Builder proposes to use the Owner
contingency, the Design-Builder shall prepare an RCO, identifying the
amount sought to be charged to the Owner contingency, the reasons
why the amount should be charged to that Contingency and
demonstrating to the satisfaction of the Department that the costs to be
incurred are necessary for the Work and are the responsibility of the
Department. At all times, the Design-Builder shall avoid and mitigate
Department Contingency costs whenever possible. Before payment or
as part of an audit, the Design -Builder and the Department shall have
authority to verify the actual costs incurred. No costs may be charged
to the Owner contingency until the RCO is approved in writing by the
Department and becomes a Change Order.
iii. The Owner contingency shall be an amount, determined by the
Department, which will be available to compensate the Design-Builder
for the increased Cost of the Work incurred by the Design-Builder due
to a Contract Modification or to other increases in the Cost of the Work
30
which the Department determines, in its sole discretion, is its
responsibility. The Department may increase, decrease or eliminate
the Owner contingency at any time.
Section 4.7. Department Review of GMP Proposal.
The Design-Builder shall meet with the Department to review the GMP Proposal and the
written statement of its basis. In the event that the Department discovers any inconsistencies or
inaccuracies in the information presented, the Department shall promptly notify the Design
Builder, who shall make appropriate adjustments to the GMP Proposal, its basis or both.
Section 4.8. Department Acceptance of GMP Proposal.
The Department and the Design-Builder shall meet to negotiate the terms of the GMP
Proposal. If the GMP Proposal is acceptable to the Department, the Department shall submit the
resulting GMP amendment to the Council for the District of Columbia. The GMP shall be subject
to review and approval by the Council for the District of Columbia in the event it exceeds
the previously approved Contract value by more than $1 million. In such event, the GMP
shall not be effective until so approved. Please note that the Council submission and approval
timeline varies, and Offerors should plan for 60 -90 days on average for this process, taking into
consideration that Council is not in session over the summer months.
Section 4.9. GMP Amendment.
In the event an acceptable GMP Proposal is not developed and a GMP Amendment is not
executed, the Agreement will be terminated. In the event the Agreement is terminated pursuant to
this Section, the Department shall be free to use any of the documents and information developed
through the date of termination to retain a new contractor to complete the Project.
Section 4.10. Assignment Upon Failure to Reach GMP.
In the event that the Department and the Design-Builder are unable to agree upon a GMP,
the Department shall have the right to terminate this Agreement, and if requested by the
Department, the Design-Builder shall assign any trade Subcontracts and its agreement with the
Architect to the Department upon such terms and conditions and at the time requested by the
Department. In such event, the Design-Builder shall only be entitled to earn fifty percent (50%)
of the Preconstruction Fee.
Section 4.11. Certification.
As part of the GMP Proposal submitted in accordance with this Article, the Design-Builder
agrees to specifically acknowledge and declare that the Contract Documents are sufficiently
complete to have enabled the Design-Builder to determine the Cost of the Work therein in order to
enter into the GMP Amendment and to enable the Design-Builder to agree to construct the Work
outlined therein in accordance with applicable laws, statutes, building codes and regulations to the
best of Design-Builder’s knowledge, and otherwise to fulfill all its obligations hereunder. The
Design-Builder shall further acknowledge that it has visited the site, examined all conditions
affecting the Work, is fully familiar with all of the conditions thereon and affecting the same, and
has carefully examined all drawings and specifications provided to it.
Section 4.12 Early Release/Abatement & Demolition
31
Section 4.12.1 Abatement & Selective Demolition. Once the schematic
design has been approved, the Department may release the Design-Builder to
commence hazardous material abatement, interior demolition, exterior demolition,
utility work, or other early activities, as applicable. It is envisioned that this work
may be released in advance of the GMP.
Section 4.12.2 Long Lead Materials. The Department will release funding
for long-lead items once the Permit Set have been approved. If the Design-Builder
believes an earlier release is required in order to meet the Project schedule, it
shall advise the Department and make a recommendation as to the requested release
date. Any decision to authorize an early release shall be made by the Department in
its sole and absolute discretion.
Section 4.13 Unsafe Materials and Hazardous Materials
Section 4.13.1 The Design-Builder shall not bring, spill or release onto the
site asbestos, PCBs, or any other Hazardous Material that is not customarily
used in a facility of the type and similar to the Project, and shall bring to the
Department’s attention any specification of such Hazardous Materials in the design
documents. If the Design Builder believes that anything in the Agreement would
require that it use or bring onto the site asbestos, PCBs, or any Hazardous Material
that is not customarily used in a facility of the type and similar to the Project, it
shall immediately inform the Department and seek direction before proceeding.
Section 4.13.2 The Design-Builder shall abate and remove Hazardous
Materials on or within the site as necessary to complete the Work contemplated by
this Agreement. The Design-Builder shall comply with all laws, including, without
limitation, the requirements of the EPA and all jurisdictional agencies as well as
all laws relating to safety, health welfare, and protection of the environment, in
removing, treating, encapsulating, passivating, and/or disposing of Hazardous
Materials, including, but not limited to, removal, treatment, encapsulation,
passivation, and/or disposal of the Hazardous Materials. If any notices to
governmental authorities are required, the Design Builder shall also give those
notices at the appropriate times. The Design-Builder shall ensure abatement
subcontractors and disposal sites are appropriately licensed and qualified.
Section 4.13.3 The Design-Builder shall be entitled to submit a Change
Request in accordance with Article 4 of the Standard Contract Provisions in the
event the Design Builder encounters Hazardous Materials beyond those
contemplated in the Contract Documents.
Section 4.13.4 The Design-Builder shall keep detailed records documenting
Work done so that the Department may independently verify compliance with all
laws, the number of units actually removed, treated, and/or disposed of, and the
32
appropriate unit price(s) applicable to the Work.
33
Article 5 CONSTRUCTION PHASE
Section 5.1. General.
The Construction Phase shall not commence until the Department issues a Notice to
Proceed for Construction Phase Services. The Design-Builder shall, through its Subcontractors 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 Design-Builder shall provide all of the labor, materials, tools, equipment, temporary
services, and facilities necessary to complete the Project in accordance with the drawings,
specifications, schedule and budget that are issued for the Project. The Design-Builder shall be
responsible for paying for and obtaining all necessary permits and to pay all necessary fees for
utility connections. The Work shall be carried out in a good and workmanlike, first-class manner, and
in a timely fashion. All materials and equipment to be incorporated into the Project shall be new and
previously unused, unless otherwise specified, and shall be free of manufacturing or other defects.
The construction phase services shall include, but are not necessarily limited to:
a. Manage all aspects of the construction of the Project.
b. Manage weekly progress meetings. Progress meetings include site visits from design consultants
with field reports reviewed on a monthly basis.
c. Provide completed Quality Control checklists for implementation of the Project.
d. Review and process shop drawing submissions, RFI’s, etc.
e. Prepare meeting notes and records of decisions/changes made.
f. Conduct pre-closeout inspections.
g. Review closeout documents for completeness, such as As-Built Drawings based on the Design-
Builder’s red line drawings and/or coordinated set developed during the subcontractor
coordination process. As-Built Drawings should be transmitted to DGS in hard copy, PDF,
CAD, and BIM formats.
Based on the approved plans and specifications, the Design-Builder shall construct the Project. During
the Construction Phase, the Design-Builder shall be required to cause the Work to be completed in a
manner consistent with the design documents and phasing plan approved by the Department and shall
provide all labor, materials, insurance, bonds and equipment necessary to fully complete the Project in
accordance with the drawings, specifications, schedule and budget that are issued for the Project. The
Design-Builder shall be responsible for paying for and obtaining all necessary permits and to pay all
necessary fees for utility connections and the like.
The Work shall be accomplished in accordance with the following:
Section 5.1.1 Drawings & Specifications. All of the Work shall be constructed in
strict compliance and in accordance with the final Construction Documents issued for and
approved by the Department.
Section 5.2 Reserved.
Section 5.3 Subcontracting and Administration
34
5.3.1 It is contemplated that all or substantially all of the construction of the
Project will be carried out by trade Subcontractors and that those trade
subcontracts will be awarded through the competitive bid process
contemplated in Section 4.4. The Design-Builder shall enter into a
written agreement with each subcontractor. The trade subcontractors will
be under written contract with the Design-Builder. All subcontracts
and agreements for the supply of equipment or materials awarded for the
Project shall be fixed-price contracts unless otherwise expressly
authorized by the Department, in writing. It is understood and agreed,
however, that certain trade packages (such as the mechanical and
electrical packages) may be awarded on a design- assist or design-
build basis and that such trade packages may be awarded on such
other basis subject to the Department’s consent as to the bidding
procedures and economic structure with regard to those packages. The
Design-Builder and its affiliates may not carry out trade work with
its own forces without the Department's written permission, which
permission may be withheld or conditioned by the Department in its sole
and absolute judgment.
5.3.2 In addition to the open book reporting requirements set forth in Section 5.10,
the Design-Builder shall provide to the Department a copy of all quotes
or proposals submitted by potential subcontractors.
5.3.3 The Design-Builder shall develop a purchasing strategy to address the
expedited schedule and conditions of this Project and shall include
appropriate provisions in the subcontracts to minimize the cost impact
associated with such conditions. Such strategies may include, but are not
limited to: (i) obtaining from subcontractors unit price quotes for typical
coordination items; (ii) setting aside allowances for coordination work;
and (iii) such other techniques as may be employed by the Design-
Builder.
5.3.4 The Design-Builder shall carefully document its procedures for making
available bid packages to potential bidders, the contents of each bid
package, discussions with bidders at any pre-bid meetings, bidders’
compliance with bid requirements, all bids received, the Design-
Builder’s evaluations of all bids, and the basis for the Design Builder’s
recommendation as to which bidders should be chosen. The Department
shall be afforded access to all such records at all reasonable times so
that, among other things, it may independently confirm the Design-
Builder’s adherence to all requirements set forth.
in the Agreement including, without limitation, affirmative action
requirements and subcontracting requirements.
35
5.3.5 The Department may, in its sole discretion, reject any or all bids and
proposals received for any bid package, and may require the Design
Builder to obtain new or revised bids or proposals.
5.3.6 The Department may, in its sole discretion, direct the Design-Builder to
accept a bid from a qualified bidder other than the bidder to whom the
Design-Builder recommends award of a subcontract or supply
agreement. If the Department chooses this option, it shall issue a
Change Order to the Design-Builder for any difference between the cost
of the subcontract or supply agreement awarded and the bid price of the
Subcontractor or supplier recommended by the Design-Builder, but
without any adjustment to the Design-Build Fee.
5.3.7 The Department must approve all Subcontractors and suppliers. The
Department may elect to review the form of any subcontract or
agreement with a material supplier to insure that such contract
incorporates the contractual provisions required by this Agreement.
5.3.8 The Design-Builder must contract for provision of all services and
materials for the Project (other than Self-Performed Work which must be
authorized in advance and in writing by the Department) via written
subcontracts or, for contracts requiring provision of materials or
equipment only, and not labor, via written supply agreements. All
subcontracts and supply agreements shall include the following
provisions:
5.3.8.1 that, to the extent of the work or supply within the
agreement’s scope, the Subcontractor or supplier is bound to
the Design-Builder for the performance of all obligations
which the Design-Builder owes the Department under the
Agreement;
5.3.8.2 that the Subcontractor or supplier is not in privity with the
Department and shall not seek compensation directly from the
Department on any third-party beneficiary, quantum
meruit, or unjust enrichment claim, or otherwise, except as
may be permitted by any applicable mechanic’s lien law;
5.3.8.3 that the Department is a third-party beneficiary of the
subcontract or supply agreement, entitled to enforce any
rights thereunder for its benefit;
5.3.8.4 that the Subcontractor or supplier consents to assignment of
its agreement to the Department, at the Department's sole
option, if the Design-Builder is terminated for default;
36
5.3.8.5 that the Subcontractor or supplier shall comply immediately
with a written order from the Department to the Design-
Builder to suspend or stop work;
5.3.8.6 that the Subcontractor or supplier shall maintain records of all
Work it is requested or authorized to do on a time and material
or cost-plus basis, or with respect to claims that it has asserted
on a time and materials or cost-plus basis, during the Project
and for a period of time specified in the General Conditions
and requiring the Subcontractor or supplier to make those
records available for review or audit by the Department during
that time;
5.3.8.7 that the Subcontractor shall obtain and maintain, throughout
the Project, workers' compensation insurance in accordance
with the laws of the District of Columbia (This provision is
not applicable to supply agreements);
5.3.8.8 that, if the Department terminates the Agreement for
convenience, the Design-Builder may similarly terminate the
subcontract or supply agreement for convenience, upon seven
(7) days’ written notice to the Subcontractor or supplier, and
that the Subcontractor or supplier shall, in such a case, be
entitled only to the costs set forth in Article 6 of the Standard
Contract Provisions;
5.3.8.9 that the Department shall have the right to enter into a
contract with the Subcontractor or supplier for the same
price as its subcontract or supply agreement price less amounts
already paid, if the Design-Builder files a voluntary petition
in bankruptcy or has an involuntary petition in bankruptcy filed
against it;
5.3.8.10 that the Subcontractor or supplier shall not be entitled to
payment for defective or non-conforming work, materials or
equipment, and shall be obligated promptly to repair or replace
non-conforming work, materials or equipment at its own cost;
5.3.8.11 a provision requiring that Subcontractors and suppliers
promptly pay Subcontractors and suppliers at lower tiers,
imposing upon the Subcontractors and suppliers a duty to pay
interest on late payments, and barring reimbursement for
interest paid to lower tier Subcontractors or suppliers due to
a Subcontractor’s or supplier’s failure to pay them in timely
fashion;
37
5.3.8.12 a provision requiring that all Subcontractors at all tiers
comply with the provisions of Article 13 (Economic
Inclusion Goals); provided, however, that the Design
Builder may, in its reasonable discretion impose a different
LSDBE subcontracting goal on some or all of its
Subcontractors; provided, further, however, that nothing in
this provision shall be deemed to excuse the Design-Builder
from using its best efforts to achieve the LSDBE
subcontracting goal on an aggregate basis for the Project;
5.3.8.13 a provision which allows the Design-Builder to withhold
payment from the Subcontractor if the Subcontractor does not
meet the requirements of the Subcontract;
5.3.8.14 lien and claim release and waiver provisions substantially
identical to those in this Agreement.
5.3.9 Within seven (7) calendar days of receiving any payment from the
Department that includes amounts attributable to Work performed or
materials or equipment supplied by a Subcontractor or supplier, the
Design-Builder shall either pay the Subcontractor or supplier for its
proportionate share of the amount paid to the Design-Builder for the
Subcontractor’s or supplier’s Work or materials or equipment, or
notify the Department and the Subcontractor or supplier, in writing, of the
Design-Builder’s intention to withhold all or part of the payment and
state the reason for the withholding. All monies paid to the Design-
Builder under the Agreement shall be used first to pay amounts due to
Subcontractors or suppliers supplying labor or materials for the Project
and only money remaining after such payments are made may be used
for other items such as the Design Build Fee. Monies paid by joint check
shall be deemed to have been paid fully to the Subcontractor or supplier
named as a joint payee, unless the Department agrees otherwise in
writing. Any interest paid to Subcontractors or suppliers because the
Design-Builder has failed to pay them in timely fashion shall not be
reimbursable as part of the Cost of the Work.
5.3.10 The Design-Builder shall not enter into any profit sharing, rebate, or
similar arrangement with any Subcontractor or supplier at any tier with
respect to the Project or the Work to be carried out for the Project.
5.3.11 The Design-Builder shall not substitute or replace any Subcontractor or
supplier approved by the Department without the Department's prior
written consent.
5.3.12 The Department has the right to contact Subcontractors or suppliers at all
tiers, or material or equipment suppliers directly to confirm amounts due
38
and owing to them or amounts paid to them for Work on the Project, and
to ascertain from the Subcontractors or suppliers at all tiers their
projections of the cost to complete their work or to supply their material
or equipment, or the existence of any claims or disputes. In doing so the
Department shall not issue any directions to Subcontractors or Suppliers
at any tier.
5.3.13 If it comes to the Department's attention that a Subcontractor or
supplier has not been paid in timely fashion (other than for disputed
amounts), and if the Design-Builder fails to cure the problem within five
(5) calendar days after the Department gives it written notice of
the failure to pay, the Department may make payments to the
Subcontractor or supplier and Design-Builder by joint check.
5.3.14 The Design-Builder shall be required to provide an evaluation of each of
its subcontractors’ performance by completing and submitting to the
Department the Subcontractor Performance Evaluation Form set forth
as Exhibit 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.
Section 5.4 Weekly Progress Meetings & Schedule Updates.
The Design-Builder shall schedule and conduct, at a minimum, weekly progress meetings at which
the Department, the Architect, the Project Manager, the Design-Builder and appropriate
Subcontractors can discuss the status of the Work. The Design-Builder shall prepare and promptly
distribute meeting minutes. In addition, the Design-Builder shall submit bi-weekly Schedule updates
which shall reflect actual conditions of Project progress as of the date of the update. The update
shall reflect the actual progress of construction, identify any developing delays, regardless of their
cause, and reflect the Design-Builder’s best projection of the actual date by which Substantial
Completion and Final Completion of the Project will be achieved. Via a narrative statement (not
merely a critical path method schedule), the Design-Builder shall identify the causes of any potential
delay and state what, in the Design-Builder's judgment, must be done to avoid or reduce that delay.
The Design-Builder shall point out, in its narrative, changes that have occurred since the last update,
including those related to major changes in the scope of work, activities modified since the last update,
revised projections of durations, progress and completion, revisions to the schedule logic or
assumptions, and other relevant changes. Any significant variance from the previous schedule or
update shall also be identified in a narrative, together with the reasons for the variance and its impact
on Project completion. All Schedule updates shall be in a native format reasonably acceptable to the
Department (e.g., Primavera). The Department may make reasonable requests during the Project for
changes to the format or for further explanation of information provided. Submission of updates
showing that Substantial Completion or Final Completion of the Project will be achieved later than the
applicable scheduled completion date shall not constitute requests for extension of time and shall not
39
operate to change the scheduled completion date(s). The Department’s receipt of, and lack of objection
to, any schedule update showing Substantial Completion or Final Completion later than the dates agreed
upon in the Project Schedule shall not be regarded as the Department’s agreement that the Design-
Builder may have an extension of time, or as a waiver of any of the Department’s rights, but merely
as the Design- Builder’s representation that, as a matter of fact, Substantial Completion or Final
Completion of the Project may not be completed by the agreed upon date in the Project Schedule.
Changes to the scheduled completion dates may be made only in the circumstances and only by the
methods set forth in this Agreement.
Section 5.5 Written Reports.
The Design-Builder shall provide written reports to the Department on the progress of the
entire Work at least monthly from Preconstruction Notice to Proceed until Final Completion of the
Project. Such written report shall including the following elements:
5.5.1 Construction Progress Update. The Design-Builder shall provide
written reports to the Department, on the progress of the entire Work at
least monthly from Preconstruction NTP until Final Completion of the
Project. The monthly report shall include: (i) an updated schedule
analysis, including any plans to correct defective or deficient work or
recover delays; (ii) an updated cost report; (iii) a monthly review of cash
flow; (iv) a quality control report; and (v) progress photos. Each monthly
update shall contain a narrative description of the Project progress and
a critical path method schedule in Primavera format, including any
plans to correct defective or deficient work or for time lost due to delays.
5.5.2 Cost Update. The monthly update shall reflect, by Guaranteed
Maximum Price line item, the original line item amount, approved,
pending, and projected Change Order amounts, the cost incurred to date,
the projected cost to complete the Work of the line item, and any variance
between the actually approved budgeted balance of the line item and the
projected cost to complete. A clear distinction must be made between
approved Change Orders and those merely requested or anticipated. The
report shall explain all variances including “buyouts” or final actual costs
including those below their respective Guaranteed Maximum Price line
item. In addition, the report must disclose any instances in which the
Design-Builder has transferred amounts from one line item to another,
or from the Contingency to any other line item. Neither submission
of, nor the Department's failure to reject an update reflecting that the
projected cost to complete the Project exceeding the Guaranteed
Maximum Price will operate to increase the Guaranteed Maximum Price
or waive the Department's right to enforce the Guaranteed Maximum
Price. If the report reflects budget overruns, it must also include a
recovery plan.
5.5.3 Economic Inclusion Report. The monthly report shall include a
40
detailed summary of the Design-Builder’s efforts and results with
respect to the economic inclusion goals set forth in this Agreement.
Such report shall be in a format acceptable to the Department and shall
include, at a minimum: (i) the Design-Builder’s overall performance
with respect to the goals; (ii) a listing of subcontracts and agreements with
material suppliers during the month and the percentage of those
subcontracts and agreements with material suppliers awarded to
LSDBEs; (iii) a listing of subcontracts during the month and the
estimated percentage of the labor hours to be worked by District of
Columbia residents pursuant to those subcontracts; and (iv) a
description of the major subcontracting and supply opportunities that will
be solicited during the next three (3) months and the actions being taken to
meet the subcontracting goals.
5.5.4 Cash Flow Update. If there have been any changes to the anticipated cash
flow for the Project, such changes shall be disclosed and explained in
the monthly report. If there are no such changes, the report shall so
state.
5.5.5 Quality Assurance Report. The monthly report shall include a
detailed summary of the steps that are being employed to ensure
quality construction and workmanship. Each report shall specifically
address issues that were raised by the Department and/or its Program
Manager during the prior month and outline the steps that are being
taken to address such issues.
5.5.6 Progress Photos. The monthly report shall include updated progress
photos that shall detail changes in the Work during the month.
The Design-Builder shall also maintain a daily log containing a record of weather,
Subcontractors working on the site, number of workers, major 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 Architect and the Program
Manager, and on a monthly basis a copy of the log shall be submitted to the Department.
Section 5.6 Cost Control System.
The Design-Builder shall use a system of cost control for the Work in a format consistent with
the GMP Drawings & Specifications and approved by the Department, which shall include, without
limitation, regular monitoring of actual costs for activities in progress and estimates for uncompleted
tasks and proposed changes. Design-Builder shall identify variances between actual and estimated
costs and report the variances to the Department, the Architect and the Program Manager at regular
intervals.
Section 5.7 Key Personnel.
5.7.1 To carry out its duties, the Design-Builder shall provide at least the key
personnel identified in Exhibit F to this Agreement (“Key Personnel”),
41
who shall carry out the functions identified in Exhibit F. The Key
Personnel for the construction phase shall include (i) the Project Manager;
(ii) the Superintendent; (iii) the Project Executive; (iv) QA/QC Manager.
The Key Personnel of the Architect shall include: (i) Project Manager; (ii)
Project Architect; (iii) Principal in Charge; (iv) Lead Mechanical Engineer;
(v) Lead Electrical Engineer ; (vi) Lead Civil Engineer ; (vii) Lead
Structural Engineer; and (viii) Lead Envelope Consultant . The Design-
Builder’s obligation to provide adequate staffing is not limited to
providing the Key Personnel but is determined by the needs of the
Project. The Design-Builder shall not replace any of the Key Personnel
without the Department’s prior written approval, which shall not be
unreasonably withheld. If any of the Key Personnel become unavailable
to perform services in connection with the Agreement due to death,
disability, or separation from the employment of the Design-Builder or any
affiliate of the Design-Builder, then the Design-Builder shall promptly
appoint a replacement acceptable to the Department. The Department shall
be entitled to complete information on each such replacement, including
a current resume of his or her qualifications and experience.
5.7.2 Certain members of the Design-Builder’s Key Personnel shall be
subject to a removal or replacement fee for their removal or
reassignment by the Design-Builder. Those members of the Design
Builder’s Key Personnel subject to such fee in section 5.7.4 shall be
identified in Exhibit F as subject to the fee provisions herein. In the event
there is no delineation in Exhibit F of those members of the Design-
Builder’s Key Personnel subject to the fee provisions of this Agreement,
then all of the Key Personnel shall be subject to the fee provisions of this
Agreement.
5.7.3 In addition, the Department shall have the right, to be exercised in its sole
discretion, to remove, replace or to reduce the scope of services of the
Design-Builder in the event that a member of the Key Personnel has been
removed or replaced by the Design-Builder without the prior written
consent of the Department. In the event the Department exercises the
right to remove, replace or to reduce the scope of services of the Design-
Builder, the Department shall have the right to enforce the terms of this
Agreement and to keep-in-place those members of the Design-Builder’s
team not removed or replaced and the remaining members shall complete
the services required under this Agreement in conjunction with the new
members of the Design Builder’s team approved by the Department.
5.7.4 Removal or Replacement of Key Personnel. All members of the Design -
Builder’s Key Personnel shall be subject to replacement fees for their
removal or reassignment by the Design-Builder. In each instance where the
Design-Builder removes or reassigns one of the key personnel as being
subject to replacement fees (but excluding instances where such personnel
42
becomes unavailable due to death, termination of employment or disability)
without the prior written consent of the Department’s Contracting Officer,
the Design-Builder shall owe to the Department the sum of Twenty -Five
Thousand dollars ($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 Design-Builder’s failure to provide the Key Personnel. The
foregoing replacement fee amount shall not bar recovery of any othe r
damages, costs, or expenses other than the Department’s internal
administrative costs. In addition, the Department shall have the right, to be
exercised in its sole discretion, to remove, to replace or to reduce the scope
of services of the Design -Builder in the event that a member of the Key
Personnel has been removed or replaced by the Design-Builder without the
consent of the Department. In the event the Department exercises the right
to remove, to replace or to reduce the scope of services of the Desi gn-
Builder, the Department shall have the right to enforce the terms of the
Agreement and to keep in place those members of the Design -Builder’s
team not removed or replaced and the remaining members shall complete
the services required under the Agreement in conjunction with the new
members of the Design-Builder’s team approved by the Department.
5.7.5 Subject to the terms of this Section 5.7, in each instance where the
Design Builder removes or reassigns one of the key personnel listed in
Exhibit F as being subject to the key personnel replacement fee, other
than: (a) for reasons where such personnel become unavailable due to
death, disability or separation from the employment of the Design-Builder
or any affiliate of the Design-Builder or any affiliate of the Design
Builder; or (b) with the prior written consent of the Department, then the
Design-Builder shall pay to the Department the amount set forth in the
Project Information Section of this Agreement as a replacement fee and
not a penalty, to reimburse the Department for its administrative costs
arising from the Design-Builder’s failure to provide the Key Personnel.
The foregoing replacement fee amount shall not bar recovery of any
other damages, costs or expenses other than the Department’s internal
administrative costs.
Section 5.8 Qualified Personnel/Cooperation.
The Design-Builder shall employ on the Project only those employees and Subcontractors
who will work together in harmony and who will cooperate with one another on the Project. The
Design-Builder shall enforce strict discipline, good order and harmony among its employees and its
Subcontractors and shall remove from the site any person who is unfit for the work or fails to conduct
herself or himself in a proper and cooperative manner. If the Department requests removal of any
person as unfit or as having behaved inappropriately, the Design-Builder shall promptly comply.
Section 5.9 Warranty.
The Design-Builder warrants to the Department that materials and equipment furnished
under the Contract Documents will be of good quality and new unless otherwise required or
43
permitted by the Contract Documents, that for the one (1) year period following the Substantial
Completion Date the Work will be free from defects not inherent in the quality required or
permitted, and that the Work will conform to the requirements of the Contract Documents. The
Design-Builder’s warranty excludes remedies for damage or defect caused by abuse, modifications not
executed by the Design-Builder, improper or insufficient maintenance, improper operation, or normal
wear and tear from normal usage. The Design-Builder shall use commercially reasonable efforts to
schedule a joint inspection of the Project during the eleventh month after Substantial Completion
is achieved. During such inspection, the Design-Builder and a representative of the Department shall
walk the Project to identify any necessary warranty work.
Section 5.10 Open Book Reporting.
The Design-Builder shall maintain an open book reporting system with the Department,
allowing the Department or its consultants access to the Design-Builder’s Subcontractors and
material suppliers, invoices, purchase orders, Change Order estimates, records for Self-Performed
Work, and other relevant documentation and sources of information concerning the Work or costs. The
Department shall not use its access to the Subcontractors to give instructions or directions to them.
All instructions or directions shall be given only to the Design-Builder.
Section 5.11 Claims for Additional Time
5.11.1 Time is of the essence of this Agreement. The GMP Basis Documents
must be submitted by April 9,2026 , and the Project must be
Substantially Complete no later than the Substantial Completion Date
set forth within the Project Information Section above.
5.11.2 The Design-Builder will perform the Work so that it shall achieve
Substantial Completion by the Substantial Completion Date. Unless the
failure to achieve Substantial Completion by the Substantial
Completion Date is a result of an Excusable Delay, as defined in
Section 5.11.3, the delay shall be deemed Non-Excusable and the
Design-Builder shall not be entitled to an extension of time. Without
limiting the generality of the foregoing, delays for the following
reasons shall be regarded as Non-Excusable and shall not entitle the
Design-Builder to an extension of time:
5.11.2.1 Delays due to job site labor disputes, work
stoppages, or suspensions of work;
5.11.2.2 Delays due to adverse weather, unless the Design
Builder establishes that the adverse weather was of a nature and
duration in excess of averages established by data from the U.S.
Department of Commerce, National Oceanic and Atmospheric
Administration for the Project locale for the ten (10) years
preceding the effective date of the Agreement. For purposes of
this clause, weather shall only be deemed “adverse” if the
44
weather in question was more severe than that encountered at
the Project site over the last ten (10) years for the month in
question. Such determinations shall be made based on the
number of rain/snow days or the cumulative precipitation total
for the month in question. Notwithstanding the foregoing,
named storms shall conclusively be deemed “adverse”;
5.11.2.3 Delays due to the failure of the Design-Builder or
Subcontractors or material suppliers at any tier to perform in
timely or proper fashion, without 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 Contract Provisions or Hazardous Materials
Remediation shall be deemed an Excusable Delay.
5.11.3 The Design-Builder shall be entitled to an adjustment in the Substantial
Completion Date due to an Excusable Delay. The term “Excusable
Delay” shall mean:
5.11.3.1 Delays due to adverse weather other than those that are
classified as a Non-Excusable delay in accordance
with Section 5.11.2.2 of this Agreement;
5.11.3.2 Delays due to acts of God, war, unavoidable
casualties, civil unrest, and other similar causes of
delay that are beyond the control of the Design-
Builder; provided, however, that in no event shall a
Non-Excusable Delay or the action or inaction of the
Design-Builder, or any of its employees, agents,
Subcontractors or material suppliers be deemed an
Excusable Delay; or
5.11.3.3 Delays caused by differing Site Conditions as
permitted by Article 4, Section A of the Standard
Contract Provisions 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;
5.11.3.5 Delays caused by the Client Agency or separate
45
contractors of the Client Agency to the extent such
delays are not concurrent with delays caused by the
Design Builder or any of its employees, agents,
subcontractors or material suppliers; or
In addition to the forgoing, a delay shall be deemed to be an Excusable Delay only to the
extent that such delay: (i) warrants an extension in the Substantial or Final Completion Date; (ii) has
not been caused by the Design-Builder or any of its employees, agents, Subcontractors or material
suppliers; (iii) is on Project’s critical path; and (iv) is in addition to any time contingency periods set
forth in the critical path.
5.11.4 If the Design-Builder wishes to make a claim for an adjustment in time
allotted per the Project Schedule, written notice as provided herein shall
be given. The Design-Builder’s claim shall include an estimate of the
cost and of the probable effect of delay on the progress of the Work. In
the case of continuing delay, only one claim is necessary.
5.11.5 In no event shall the Design-Builder be entitled to an increase in the GMP
or the Design-Build Fee as a result of either an Excusable or Non-
Excusable Delay; provided, however, that to the extent that a delay is: (i)
an Excusable Delay; (ii) of unreasonable duration; (iii) caused solely by
the Department; and (iv) not concurrent with any other delay, then the
Design-Builder shall be entitled to receive its actual costs, including all
direct and indirect costs, bonds and insurances resulting from such
extended duration. It is understood that the Design-Builder shall not be
entitled to any profit or home office overhead, including, but not limited
to, an increase in the Design-Build Fee, on any amounts to which the
Design-Builder may be entitled pursuant to the preceding sentence.
Section 5.12 Site Safety and Clean-Up.
5.12.1 The Design-Builder will be required to provide a safe and efficient site,
with controlled access. As part of this obligation, the Design Builder
shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Project, and shall
comply with the requirements set forth in Article 16, Section F of the
Standard Contract Provisions for construction contracts.
5.12.2 Safety Plan. Prior to the start of construction activities, the Design -
Builder shall prepare a safety plan for the Construction Phase conforming
to OSHA 29 CFR 1926 (such plan, the “Safety Plan”). This Safety Plan
developed by the Design -Builder shall describe the prop osed separation
and the specific nature of the safety measures to be taken including fences
and barriers that will be used and the site security details. This Safety Plan
will be submitted to the Department and DPR for their review and
approval prior to th e commencement of construction. Once the Safety
46
Plan has been approved, the Design-Builder shall comply with the plan at
all times during construction. The cost of revising and complying with
the plan shall not entitle the Design -Builder to an increase in the GMP.
The Design-Builder will not be permitted to commence the Construction
Phase until the Safety Plan is submitted and in no event shall any resulting
delay constitute an excusable delay. Additionally, the Design -Builder
shall comply with the requirements of Article 27, Section A of the
Standard Contract Provisions for Construction Contracts.
5.12.3 Safety Barriers/Fences. As part of its responsibility for Project safety,
the Design-Builder shall install such fences and barriers as may be
necessary to separate the construction areas of the site from those areas
that are then being used by Client Agency. The Design-Builder shall
describe in the Safety Plan the proposed separation and the specific
nature of the fences and barriers that will be used.
5.12.4 Site Security. The Design-Builder shall be responsible for site security
and shall be required to provide such watchmen as are necessary to
protect the site from unwanted intrusion.
5.12.5 Exculpation. The right of the Department and Client Agency to
comment on the Safety Plan and the nature and location of the required
fences and barriers shall in no way absolve the Design-Builder from the
obligation to maintain a safe site.
5.12.6 Reserved.
5.12.7 Protection of Existing Elements. The Design-Builder shall protect all
existing features, public utilities, and other existing structures during
construction. The Design-Builder shall protect existing, site
improvements, trees and shrubs from damage during construction.
Protection extends to the root systems of existing vegetation. The
Design- Builder shall not store materials or equipment, or drive machinery,
within drip line of existing trees and shrubs.
5.12.8 Site Cleanliness. During the Agreement performance and/or as directed
by the Department’s Program Manager, as the installation is completed,
the Design-Builder shall ensure that the site is clear of all extraneous
materials, rubbish, or debris.
Section 5.13 Workhours, Site Office, and Coordination with Client Agency and
Community
5.13.1 Workhours. The Design-Builder shall comply with the Noise
Ordinance and neither it nor its subcontractors shall undertake work on
the Project site other than at the times and sound level permitted by the
47
Noise Ordinance.
5.13.2 Site Office. Throughout the Project, the Design-Builder shall provide and
maintain a fully-equipped construction office for the Project site. The
Design-Builder shall, at all times, provide and maintain a fully equipped
construction office for DGS staff assigned to the Project. The costs for
these Site Office(s) shall be included as part of the Design -Builder's
general conditions cost.
5.13.3 Parking. The Design-Builder shall organize its work in such a manner
so as to minimize the impact of its operations on the surrounding
community. To the extent that the number of workers on the site is likely
to have an adverse impact on neighborhood parking, the Design-Builder
shall develop a parking plan for those individuals working on the site that
is reasonably acceptable to the Department.
5.13.4 Wheel Washing Stations. The Design-Builder shall provide wheel
washing stations on site so as to prevent the accumulation of dirt and
other refuse on the streets surrounding the Project site.
5.13.5 Outreach Plan. The Design-Builder shall keep the Department informed
of the construction activities and their potential impact on the
community and shall develop a community outreach plan (the
“Outreach Plan”). The Design-Builder shall submit the Outreach Plan to
the Department prior to its implementation which shall be subject to the
Department’s review and approval.
5.13.6 Supervision. Throughout the Work, the construction office shall be
managed by personnel competent to oversee the Work at all times
while construction is underway. Such personnel shall maintain fulltime,
on-site construction supervision and provide daily inspections, quality
control, monitoring, coordination of various trades, record drawings, and
daily work log.
5.13.7 Move-in Assistance. The Design-Builder shall assist DPR in
relocating FF&E and other items, as applicable. The GMP shall include
an allowance and Scope of Work for these activities.
Section 5.14 Close-out & FF&E.
5.14.1 A detailed list of FF&E requirements will be developed and submitted
to the Department as part of the GMP Proposal.
5.14.2 Punchlist. Before the Substantial Completion Date, the Design -Builder
shall develop a punchlist. Once the punchlist is prepared, the Design -
Builder shall inspect the Work along with representatives from the
48
Department. The punchlist shall be revised to reflect additional work
items that are discovered during such inspection. The Design -Builder
shall correct all punchlist items no later than thirty (30) days after
Substantial Completion is achieved.
5.14.3 Warranties & Manuals. Six months subsequent to the Substantial
Completion Date, the Design -Builder shall prepare and submit the
following documentation: (i) a complete set of product manuals (“O&M”
or “Operation and Maintenance Manuals”), training videos, warranties,
etc.; (ii) attic stock; (iii) an equipment schedule; (iv) a proposed schedule
of maintenance for the new building; (v) environmental, health and safety
documents for the new building; and (vi) all applicable inspection
certificates/permits (boiler, elevator, emergency evacuation plans, health
inspection, etc.) for the new building.
No later than thirty (30) days following the Substantial Completion Date,
the Design -Builder shall prepare and submit: (i) a complete set of its
Project files; (ii) a set of record drawings, including BIM model(s); and
(iii) the Design -Builder shall provid e a maintenance and repair cost
services report, which includes conducting a 40 -year life cycle cost
analysis, which includes a detailed list of replacement costs, maintenance
costs, an estimate of repair costs, anticipated energy costs, and a list of
other relevant life cycle costs.
5.14.4 Support for Initial Heating & Cooling Season. The Design-Builder and
its mechanical subcontractor shall provide support to the Client Agency
and the Department during system start-up and in initial operation
for the first heating and cooling season after Substantial Completion
is achieved.
5.14.5 Training. The Design-Builder shall provide training to Client Agency
staff on all of the building systems. The Design-Builder shall be required
to schedule such training sessions and shall use commercially
reasonable efforts to ensure all such training occurs prior to Final
Completion Date.
5.14.6 The Design-Builder shall assist Client Agency in relocating FF&E and
other items as necessary within the renovated building, as well as for
cleaning and other move-in services as directed by the Department.
The GMP shall include an allowance and scope of work for these
activities. This allowance is in addition to cleaning services that would
otherwise be required by the Design-Builder, including, but not limited
to, the obligation to deliver a broom clean building at the end of
construction.
5.14.7 Eleven Month Walk. The Design -Builder shall use commercially
49
reasonable efforts to schedule a joint inspection of the Project during the
eleventh month after Substantial Completion is achieved. During such
inspection, the Design -Builder and a representative of the Department
shall walk the Project to identify any necessary warranty work.
5.14.8 Net Zero Compliance. The Design-Builder shall complete all required
post-occupancy performance monitoring, verification, and reporting as
required to meet net zero compliance requirements.
Section 5.15 Salvaged and Stored Items.
The Design-Builder shall be responsible for salvaging and storing all items as identified
by the Department, and to the benefit of the Department, in accordance with all applicable District
laws and regulations, after notifying the Department and receiving the Department’s permission to
proceed.
Section 5.16 Sediment and Erosion Control.
The Design-Builder shall be responsible for installing sediment and erosion control
measures, inclusive of, but not limited to: silt fencing, inlet protection, stabilized construction
entrances, and other control measures.
Section 5.17 Quality Control.
5.17.1 General Obligation. The Design-Builder shall be responsible for all
activities necessary to manage, control, and document work to ensure
compliance with Contract Documents. The Design-Builder’s
responsibility includes ensuring adequate quality control services are
provided by the Design-Builder’s employees, its subcontractor, vendors
& suppliers at all levels from concept to completion including site
assessment-investigations/discovery, schematic design development,
pre-construction, construction, and closeout phases. All contract-related
work activities and their implementation procedures described within
this quality control plan shall also address safety, measures to ensure
regulatory permit & code compliance, submittal management, change
document processing/incorporation, reporting, and all other functions
necessary to achieve the highest levels of quality during design and
construction efforts. The Design-Builder’s Quality Control (“QC”) Plan
submittal must include statements affirming compliance with DGS QC
Program requirements. These requirements describ e design &
construction phase stipulations driving satisfactory integration of
Definable Features of Work (“DFOWs”) identified by DGS as being
essential to overall Project success.
5.17.2 Quality Control Plan. Within thirty (30) days after the NTP , the
Design-Builder shall develop a quality control plan for the Project (the
“Quality Control Plan”). A draft of the Quality Control Plan shall be
50
submitted to the Department and shall be subject to the Department’s
review and approval. The Quality Control Plan shall be tailored to the
specific products/type of construction activities contemplated in the
Permit Set, and in general, shall include a table of contents, quality control
team organization, and hierarchical arrangement detailing ongoing,
regular interaction/coordination within the Design -Builder’s teams,
duties/responsibilities of quality control personnel, submittal procedures,
schedule of specified inspection & testing requirements, deficiency
correction procedures, issues & conflicts resolution, RFI documentation
process, change management, as -built record -keeping of contract
documents and a listing of c ustomized quality control procedures, that
will be required to ensure key elements of the Work are executed in
conformance with design documents. Examples of a few key elements
that necessitate focused attention and involvement of competent agencies
include MEP -Energy systems startup/commissioning, security systems
integration, and building envelope multi -trade coordination. Mockup
construction requirements must be incorporated into the plan, in order to
establish a minimum standard of acceptance by the Dep artment, for the
Project’s most visible and critical structural -architectural building
elements like CIP concrete and exterior facades. The Quality Control Plan
must clearly describe requirements addressing the involvement of
qualified personnel for critic al building elements and any delegated
design features that require engineered solutions, backed by supporting
analysis data.
Prior to the construction phase commencing, the Design -Builder must
advise the Department regarding the status of their drawing &
specification documents, from a percentage completion standpoint. For
that matter, the design phase quality control effort sh all provide metrics
to gauge whether the design documents –drawings & specifications – are
as complete as possible, prior to the Design -Builder’s groundbreaking.
Similarly, the Quality Control Plan must describe in detail the quality
control mechanisms proposed to be implemented by the Design -Builder
for ensuring adherence with design documents by way of minimal rework
and maintaining the highest standards of construction. The Quality
Control Plan must detail a description of any 3rd parties suggested to be
hired by the Department such as building envelope consultants and
commissioning agents.
5.17.3 Implementation. During the Construction Phase, the Design-Builder
shall perform regular quality control inspections and create reports
based on such inspections pursuant to the Quality Control Plan. The
quality control reports shall be provided to the Department electronically
on a monthly basis. The Design -Builder shall incorporate a quality
control section in the progress meetings to discuss outstanding
51
deficiencies, testing/inspections, and upcoming Work. The monthly
report shall include a detailed summary of the steps that are being
employed to provide quality construction and workmanship. The
monthly report should specifically address issues raised during the month
and outline the steps that are being used to address such issues. The
following are the components that must at a minimum be included within
the monthly Quality Control report submitted to DGS. All components
must be updated regularly, and current versions included with monthly
submissions to the Department.
1. A written narrative of Quality Control activities for the month supported
by embedded, cross-referenced photos. Should include 3-phase checklists
compiled on a regular basis as part of the Design -Builder’s ongoing
quality control efforts.
2. CPM updates and analysis reflecting the status of critical submittals
affecting work progress, elaborated further within the descriptive work
narrative accompanying CPM baseline schedule and subsequent, regular
updates’ submissions to the Department.
3. Deficiency tracking log.
4. Test & Inspections log recording all related activities for the month and
cumulative for the Project. This must correspond to and cross -reference
the Project’s testing & inspections schedule described above with Section
5.17.2.
5. Submittal Schedule detailing the status of all project submittals.
Section 5.18 Acceleration.
Subject to the terms of this Section, the Department shall have the right to direct the
Design Builder to accelerate the Work if, in the reasonable judgment of Department: (i) the Design
Builder fails to supply a sufficiency of workers or to deliver the materials or equipment with such
promptness as to prevent the delay in the progress of the Work; or (ii) the progress of the Work
otherwise materially falls behind the projections contained in the then currently approved Project
Schedule. In the event that the Department or its Program Manager determine that either of the
events specified in the preceding sentence have occurred, the Department shall provide the Design
Builder with written notice of such event and the Design-Builder shall be required to provide the
Department with a schedule recovery plan (“Recovery Plan”) that is reasonably designed to address
the concerns raised in such notice within three (3) days after receipt of such notice. If the Department
and the Design-Builder are unable to agree on the terms of the Recovery Plan within five (5) days
after the issuance of the notice (i.e. within forty eight (48) hours after the receipt of the proposed
Recovery Plan), the Department shall have the right to direct such acceleration as the Department, in
its reasonable judgment, deems necessary. Provided Department complies with the notice provisions
of this Section, the cost of any acceleration directed under this Section shall not justify an adjustment
to the GMP on the Substantial Completion Date.
Given the nature of the Project and the fact that there is a fixed date upon which the Client
Agency plans to occupy the building, the Design-Builder hereby: (i) acknowledges that this
52
provision is a material inducement upon which the Department has relied in entering into this
Agreement; and (ii) represents and warrants that it has included sufficient funding in the GMP in
order to comply with the requirements of this Section.
Section 5.19 Corrective Action Plan.
Subject to the terms of this Section, the Department shall have the right direct the Design
Builder to revise the provisions of the Quality Control Plan if, in the reasonable judgment of the
Department, the craftsmanship of the Work being installed fails to comply with generally applicable
industry standards, requirements set forth in the Specifications that are reasonably related to the
quality of craftsmanship quality, or any provisions set forth in this Agreement (each a “Quality Control
Event”). In the event that the Department or its Program Manager determine that a Quality Control
Event has occurred, the Department shall provide the Design-Builder with written notice of the
occurrence of such Quality Control Event and the Design-Builder shall be required to provide the
Department with a corrective action plan that is reasonably designed to address the concerns raised
in such notice within three (3) days after receipt of such notice (each instance, a “Corrective Action
Plan”). If the Department and the Design-Builder are unable to agree on the terms of the Corrective
Action Plan within five (5) days after the issuance of the notice (i.e. within forty eight (48) hours after
the receipt of the proposed corrective action plan), the Department shall have the right to direct
such corrective action measures as the Department, in its reasonable judgment, deems necessary. Such
directive may include adjustments to the procedural provisions set forth in the Quality Control Plan
and/or may impose additional requirements on the manner in which Work is being performed.
Provided the Department complies with the notice provisions of this Section, the cost of any such
corrective action directed under this Section shall not justify an adjustment to the GMP on the
Substantial Completion Date.
Section 5.20
a. Use of Department’s Electronic Project Management Information System
(ProjectTeam). The Design-Builder shall utilize the Department’s current project management
software, ProjectTeam, to submit any and all Project documentation required to be provided by
the Design-Builder for the Project, including, but not limited to: (i) requests for information; (ii)
submittals; (iii) meeting minutes; (iv) invoices/applications for payment (full package including
all forms required by DGS); (v) certified payrolls (in a ddition to upload via LCP Tracker); (vi)
drawings and specifications; (vii) GMP and any Submissions that require approval by DC
Council; (viii) punchlist; and (ix) other Project documents as may be designated by the
Department.
Electronic storage and transmission of information via ProjectTeam system shall be compliant
with the provisions of the document security.
b. Invoice Submittal. The Design -Builder shall create and submit payment
requests in an electronic format through the DC Vendor Portal, https://vendorportal.dc.gov. The
Design-Builder shall submit proper invoices on a monthly basis. To constitute a proper invoice,
the Design -Builder shall enter all required information into the Portal after selecting the
applicable purchase order number which is listed on the Design-Builder’s profile.
53
Section 5.21 Conformance with Laws.
It shall be the responsibility of the Design-Builder to perform under the Agreement in
conformance with the Department’s Procurement Regulations and all statutes, laws, codes,
ordinances, regulations, rules, requirements, orders, and policies of governmental bodies, including,
without limitation, the U.S. Government and the District of Columbia government; and it is the sole
responsibility of the Design-Builder to determine the Procurement Regulations, statutes, laws,
codes, ordinances, regulations, rules, requirements and orders that apply and their effect on the
Design-Builder’s obligations thereunder.
Section 5.22 Licensing, Accreditation and Registration
The Design-Builder and all of its subcontractors and subconsultants (regardless of tier)
shall comply with all applicable District of Columbia, state, and federal licensing, accreditation, and
registration requirements and standards necessary for the performance of the Agreement. Without
limiting the generality of the foregoing, all drawings shall be signed and sealed by a professional
Architect or engineer licensed in the District of Columbia.
Section 5.23 Construction Phase Deliverables.
The deliverables set forth on Exhibit C are required during the Construction Phase.
Section 5.24 Close-Out Deliverables.
Close-out deliverables shall include those outlined in Exhibit T (DGS Turnover Manual)
including, but not limited to the items set forth in Exhibit M. If there is a conflict between Exhibit
T and Exhibit M, Exhibit T shall prevail. Close -Out deliverables are required during the Project’s
Close-Out and prior to Final Payment, as set forth in Section 10.12.
54
Article 6 DESIGNATED REPRESENTATIVES
Section 6.1 Department’s Designated Representative.
The Department designates the individual(s) identified in Exhibit I as its representative
with express authority to bind the Department with respect to all matters requiring the Department’s
approval or authorization. Subject to the limitations on their authority specified in Exhibit I, these
representative(s) shall have the exclusive authority to make decisions on behalf of the Department
concerning estimates and schedules, construction budgets, changes in the Work, and execution of
Change Orders, Contract Modifications or Change Directives, and shall render such decisions
promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or
performance of the Work of the Design-Builder. In order for the Department to effectively manage
the Project and assure that the Design-Builder does not receive conflicting instructions regarding
the Work, the Design-Builder shall promptly notify the Department’s representative upon
receiving any instructions or other communication in connection with the Design-Builder’s Work
from any employee of the Department or other purported agent of the Department other than the
Department’s designated representative.
Section 6.2 Design-Builder’s Designated Representative.
The Design-Builder designates the individual(s) identified in Exhibit H as its
representative with express authority to bind the Design-Builder with respect to all matters
requiring the Design Builder’s approval or authorization. In addition, the Department retains the
right to approve candidates to serve as on-site personnel in accordance with each candidate’s
experience with similar projects and local marketplace conditions. Once approved, individuals
cannot be changed without the Department’s prior approval. During the entire term, it is agreed
that the Design Builder’s designated representative will devote his or her time exclusively to the
Project, unless the Department consents to a reduction in time. All services provided by the
Design-Builder shall be performed in accordance with the highest professional standards
recognized and adhered to by design-builders that build first-class state-of-the-art buildings and
projects that are similar to the Project in large urban areas.
55
Article 7 COMPENSATION AND PAYMENTS FOR DESIGN & PRECONSTRUCTION
PHASE SERVICES
Section 7.1 Compensation
7.1.1 The Department shall compensate and make payments to the
Design-Builder for Design & Preconstruction Services in
accordance with this Section 7.1 and the amounts set forth in
Section A . For Preconstruction Services, the Design-
Builder’s compensation shall be as set forth in the Project
Information Section of this Agreement (the “Preconstruction
Fee”). The Preconstruction Fee shall be the Design-
Builder’s sole compensation for Preconstruction Phase
Services. The Preconstruction Fee shall include, but not be
limited to, amounts necessary to compensate the Design-
Builder for:
• Profit;
• Home Office Overhead;
• Cost of preconstruction staff;
• Fringe Benefits associated with staff costs;
• Payroll taxes associated with staff costs;
• Staff costs associated with obtaining permits and
approvals during the design & preconstruction phase;
• Out-of-house consultants;
• Travel, Living and Relocation expenses;
• Job vehicles;
• Office equipment including but not limited to:
• Computer hardware and software;
• Fax machines; and
• Copying machines.
• Office supplies;
• Telephone; and
• Local delivery and overnight delivery costs.
Section 7.2 Payment
7.2.1 The Department shall compensate and make payments to the
Design-Builder for design services in accordance with this
Article 7 and Article 10. For design services, the Design-
Builder’s compensation shall not exceed the amount set forth in
the Project Information Section of this Agreement (the “Design
Fee”).Payments for Design & Preconstruction Phase Services
shall be made monthly over the anticipated duration of the
56
Design & Preconstruction Phase following presentation and
acceptance of the Design-Builder’s invoice and shall be in
proportion to services performed. In no event, however, will the
aggregate of the Design-Builder’s monthly invoices for Design
& Preconstruction Phase Services exceed the Preconstruction
Fee.
7.2.2 Payments are due and payable in accordance with of this
Agreement. Amounts unpaid after the date of which payments
due shall bear interest in accordance with the Quick Payment
Act.
57
Article 8 COMPENSATION FOR CONSTRUCTION PHASE SERVICES
Section 8.1 Compensation.
The Department shall compensate and make payments to the Design-Builder for
Construction Phase Services in accordance with this Article 8. For the Construction Phase
Services, the Design-Builder’s compensation shall be as set forth in the Project Information
Section of this Agreement (the “Design-Build Fee”). Design-Build Fee shall be billed in
accordance with Section 10.1 Progress Payments to be paid in equal monthly installments over
the anticipated duration of the Construction Phase. To the extent that the duration of the
Agreement is extended, the then remaining amounts of the Design-Build Fee will be re-allocated
such that the then existing portion of the Design-Build Fee shall be evenly spread over the then
remaining duration of the Construction Phase.
Section 8.2 Lump Sum General Conditions.
The Design-Builder shall propose a lump sum amount for the General Conditions Cost,
and this lump sum amount shall be the extent of what the Design-Builder is entitled to recover for
the cost of General Conditions (such cost, the “Lump Sum General Conditions Cost”). The Lump
Sum General Conditions Cost shall not be increased or decreased as a result of Change Orders or
Change Directives unless such changes: (i) extend the duration of the Project beyond the time
Substantial Completion Date; and (ii) the Design-Builder can demonstrate to the satisfaction of the
Department that such additional General Conditions costs are necessary and not due to any fault
of the Design -Builder, its subcontractors, materialmen, consultants or anyone making claims
thereunder. To the extent the Design -Builder incurs General Conditions Costs in excess of the
Lump Sum General Conditions Cost, the Design-Builder shall not be entitled to reimbursement for
such amounts unless the Department authorizes, by written Contract Modification, an increase to
the Lump Sum General Conditions Cost. Nonetheless, in such an event, if the Design -Builder
exceeds the Lump Sum General Conditions Cost, the Design-Builder shall continue to be required
to adequately staff the Project and provide all Construction Services.
Section 8.3 Initial Not-to-Exceed Amount.
Unless and until the GMP Amendment is executed and approved by the Council for the District of
Columbia, this Agreement shall have an initial not-to-exceed amount as set forth in the Project
Information Section of this Agreement (the “Initial NTE”). In no event shall the Design Builder
be entitled to recover more than the Initial NTE unless the Design-Builder is authorized to exceed
the Initial NTE by the Department in advance and in writing. Prior to expending or committing
any portion of the Initial NTE, the Design-Builder shall obtain the Department’s written
approval of such expenditure or commitment, as well as a determination as to whether the work
will qualify as a “capital” expense under the Department’s financial guidelines. In making such a
request, the Design-Builder shall submit an itemized breakdown of the work that the Design- Builder
seeks to release using funds from the Initial NTE as well as the associated costs of such work.
Section 8.4 Project Budget.
The Department has established 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 Design-Builder pursuant to this Agreement, and in no
58
event shall the Design-Builder be entitled to recover more than the Project Budget unless the
Design-Builder is authorized to exceed the Project Budget by the Department in advance and in
writing. The Design-Builder shall inform the Department’s Contracting Officer at least fifteen
(15) calendar days in advance, if the Design -Builder encounters any foreseen or unforeseen
project-related events, which might reasonably affect: (i) existing Project Bud get; or (ii) DC
Council-authorized appropriations.
Section 8.5 No Adjustments to Fee.
It is the Department’s intent to engage the Design-Builder to develop a GMP that meets
the programmatic requirements set forth in Table 1.1 – Program Amenities by the Client Agency
and the Project Budget as set forth herein (i.e. designed to budget), to allow for Substantial
Completion of the Work to be achieved no later than the Substantial Completion Date. The
Design-Builder shall be entitled to an adjustment to the Design-Build Fee at the time the GMP is
established to the extent, and only to the extent, that: (i) the Department makes additions to the
scope that, when measured relative to the program, cause the GMP to exceed the Design-Builder’s
original concept estimate by more than five percent (5%); or (ii) the Department makes additions
to the scope provided for herein which (other than for punchlist or warranty work) which requires
the Design-Builder’s services at the Project to extend 30 days or more beyond the Substantial
Completion Date. With regard to Change Orders issued after the GMP is established, and in
accordance with Section 18.8, the Design-Builder shall be entitled to an increase in the Design-
Build Fee to the extent, and only to the extent, that: (i) the Department has added a new
programmatic element to the Project; or (ii) the Department made additions to the GMP scope
which (other than punchlist or warranty work) require the Design-Builder’s services at the Project
to extend 30 days or more beyond the Substantial Completion Date.
Section 8.6 Markup on Trade Work.
The maximum markup for change order work shall be as follows:
8.6.1.1 For Work performed by a Subcontractor with its own
forces, the Subcontractor shall be entitled to a mark -up of
not more than fifteen percent (15%) (covering home office
overhead, the cost of insurance and bonds, field
supervision, general conditions and profit) on the Direct
Costs of the Work. For Work that the Department permits
the Design-Builder to self-perform, the Design Builder
shall also be entitled to a markup of not more than fifteen
percent (15%) of the Direct Cost of the Work. With regard
to any such Work that is self-performed by the Design-
Builder, the markup contemplated in this Section shall be
the Design-Builder’s exclusive compensation and it shall
not be entitled to the markup contemplated in Section
8.6.1.3;
8.6.1.2 Intervening tier Subcontractors shall be entitled to a markup
of five percent (5%) (covering home office overhead, the
cost of insurance and bonds, field supervision, general
conditions and profit) on Work performed by lower-tier
59
Subcontractors;
8.6.1.3 In no event shall the maximum mark-up on the Direct Cost
of the Work exceed twenty-five percent (25%). Direct Cost
of the Work shall mean labor, material and other costs
reasonably and necessarily incurred in the proper
performance of the Work as approved by the Department
and shall include, but not be limited to: (Direct Cost of the
Work does not, however, include home office overhead,
field supervision, general conditions or profit of either the
Subcontractor or the Design-Builder. No personnel above
the level of a working foreman shall be considered a Direct
Cost of the Work).
(a) Labor. Payment will be made for direct labor cost plus
indirect labor cost such as insurance, taxes, fringe benefits
and welfare provided such costs are considered reasonable.
Indirect costs shall be itemized and verified by receipted
invoices. If verification is not possible, up to eighteen
percent (18%) of direct labor costs may be allowed.
(b) Rented Equipment. Payment for required equipment
rented from an outside company that is neither an affiliate
of, nor a subsidiary of, the Design-Builder will be based on
receipted invoices which shall not exceed rates given in the
current edition of the Rental Rate Blue Book for
Construction Equipment. If actual rental rates exceed
manual rates, written justification shall be furnished to the
Contracting Officer for consideration. No additional
allowance will be made for overhead and profit. The
Design-Builder shall submit written certification to the
Contracting Officer that any required rented equipment is
neither owned by nor rented from the Design-Builder or an
affiliate of or subsidiary of the Design- Builder.
(c) Contractor’s Equipment. Payment for required
equipment owned by the Design Builder or an affiliate of
the Design-Builder will be based solely on an hourly rate
derived by dividing the current appropriate monthly rate by
176 hours. No payment will be made under any
circumstances for repair costs, freight and transportation
charges, fuel, lubricants, insurance, any other costs and
expenses, or overhead and profit. Payment for such
equipment made idle by delays attributable to the
Government will be based on one-half the derived hourly
rate under this subsection.
60
(d) Materials. Incorporated and unincorporated materials
as permitted under Section 9.1.
Section 8.7 Direct Cost of Work
“Direct Cost of the Work” shall mean labor, material and other costs reasonably and
necessarily incurred in the proper performance of the Work as approved by the Department and
shall include, but not be limited to:
8.7.1 Labor. Payment will be made for direct labor cost plus indirect labor
cost such as insurance, taxes, fringe benefits and welfare provided
such costs are considered reasonable. Indirect costs shall be itemized
and verified by receipted invoices. If verification is not possible, up to
eighteen percent (18%) of direct labor costs may be allowed.
8.7.2 Rented Equipment. Payment for required equipment rented from an
outside company that is neither an affiliate of, nor a subsidiary of, the
Design-Builder will be based on receipted invoices which shall not
exceed rates given in the current edition of the Rental Rate Blue Book
for Construction Equipment published by Data Quest. If actual rental
rates exceed manual rates, written justification shall be furnished to
the Contracting Officer for consideration. No additional allowance
will be made for overhead and profit. The Design-Builder shall submit
written certification to the Contracting Officer that any required
rented equipment is neither owned by nor rented from the Design
Builder or an affiliate of or subsidiary of the Design Builder.
8.7.3 Design-Builder’s Equipment. Payment for required equipment
owned by the Design-Builder or an affiliate of the Design-Builder
will be based solely on an hourly rate derived by dividing the current
appropriate monthly rate by 176 hours. No payment will be made
under any circumstances for repair costs, freight and transportation
charges, fuel, lubricants, insurance, any other costs and expenses, or
overhead and profit. Payment for such equipment made idle by delays
attributable to the Government will be based on one-half the derived
hourly rate under this subsection.
8.7.4 Materials. Incorporated and unincorporated materials as permitted
under Section 8.7 Direct Cost of Work.
8.7.5 Direct Cost of the Work do not, however, include home office
overhead, field supervision, general conditions or profit of either the
Subcontractor or the Design-Builder. No personnel above the level
of a working foreman shall be considered a Direct Cost of the Work.
61
Article 9 COST OF THE WORK FOR CONSTRUCTION PHASE
Section 9.1 Cost of the Work.
The term “Cost of the Work” shall mean the costs necessarily incurred by the Design
Builder in the proper performance of the Work and shall include only the following:
9.1.1 Payments made by the Design-Builder to Subcontractors and suppliers,
other than design subconsultants, but only in accordance with the
subcontracts and supply agreements;
9.1.2 Payments made by the Design-Builder to its design consultants and sub-
consultants; provided, however, that the Design -Builder shall not be
reimbursed for the costs of design services and construction
administration services in excess of the Design Fee;
9.1.3 All amounts due to the Design-Builder under the terms of the
Department's written authorization for the Design Builder to perform
any portion of the Work as Self-Performed Work. If an authorization
for the Design-Builder to engage in Self-Performed Work is not on a
fixed-price basis, then, as to that Work, the following costs shall be
within the Cost of the Work:
(a) Labor. Properly documented wages actually paid to Project foremen, construction
workers, and other personnel in the direct employ of the Design-Builder, while engaged in
approved Self-Performed Work, together with contributions, assessments, payroll taxes, or fringe
benefits required by the laws or applicable collective bargaining agreements.
(b) Incorporated Materials. The cost, net of trade discounts, of all materials,
products, supplies and equipment incorporated into the Self-Performed Work, including, without
limitation, costs of transportation and handling.
(c) Unincorporated Materials. The cost of materials, products, supplies and
equipment not actually installed or incorporated into the Self-Performed Work, but required to
provide a reasonable allowance for waste or spoilage, subject to the Design-Builder’s agreement
to turn unused excess materials over to the Department at the completion of the Project or, at the
Department’s option, to sell the material and pay the proceeds to the Department or give the
Department a credit in the amount of the proceeds against the Cost of the Work.
9.1.4 Royalty and license fees paid for use of a design, process or product, if
its use is required by this Agreement or has been approved in advance
by the Department;
9.1.5 Fees for obtaining all required approvals or permits associated with any
abatement, demolition, utilities abandonment, and utility relocation
(including utility connection fees), including any and all building
and/or trade permits fees;
62
9.1.6 All performance and payment bonds and general liability insurance.
The Department may, in its sole discretion, allow the Design-Builder
to recover the costs of subcontractor default insurance at a mutually
agreed upon rate in lieu of trade level bonds, provided that such
insurance be approved by the Department in advance and after being
presented with a cost-benefit analysis of such use;
9.1.7 All fees and other costs necessarily incurred to carry out testing and
inspection required by the Agreement or applicable laws, or otherwise
to maintain proper quality assurance. The costs the Design-Builder
incurs to schedule and coordinate any additional testing and inspections
the Department may decide to conduct itself shall be within Cost of the
Work unless the additional testing establishes that the Work tested was
defective or otherwise failed to satisfy requirements set forth in the
Agreement, in which case the Design-Builder shall pay the costs,
without reimbursement;
9.1.8 All bonds to jurisdictional agencies (utilities, storm water management,
land disturbance, and grading);
9.1.9 The Lump Sum General Conditions Cost; and
9.1.10 Costs of repairing or correcting damaged or nonconforming Work
executed by the Design -Builder’s Architect, or Design -Builder’s other
consultants, Subcontractor, or suppliers, provided that such damaged or
nonconforming Work was not caused by negligence or failure to fulfill a
specific responsibility of the Design -Builder, and only to the extent that
the cost of repair or correction is not recoverable by the Design -Builder
from insurance, sureties, subcontractor or suppliers. It is understood that
the cost of repairing, correcting damaged or nonconforming Work that was
Self-Performed shall not be reimbursable in any event..
Section 9.2 Lump Sum General Conditions.
The Design-Builder’s Lump Sum General Conditions Costs shall be the extent of what
the Design-Bulder is entitled to recover for the cost of General Conditions. General Conditions
may include, but are not limited to:
9.2.1 The cost of “construction staff”. The term construction staff shall mean
the Project Manager, Superintendent and Project Executive assigned
to the Project, administrative and professional staff performing
scheduling, cost estimating and accounting services assigned on a full-
time basis to the Project site;
9.2.2 Fringe Benefits associated with construction staff;
9.2.3 Payroll taxes and payroll insurance associated with construction staff;
63
9.2.4 Staff costs associated with obtaining permits and approvals;
9.2.5 Out-of-house consultants, including, but not limited to, permit
expeditors, safety managers, and schedulers;
9.2.6 Job vehicles
9.2.7 The field office(s) for the Design -Builder and Department, including,
but not limited to: (i) trailer purchase and/or rental; (ii) field office
installation, relocation and removal; (iii) utility connections and
charges during the Construction Phase; (iv) furniture: (v) office
supplies;
9.2.8 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;
9.2.9 Local delivery and overnight delivery costs;
9.2.10 Field computer network;
9.2.11 First aid facility;
9.2.12 Printing cost for drawings, bid packages, etc.;
9.2.13 BIM Cost (software, seats, hardware);
9.2.14 Parking costs for the construction staff;
9.2.15 Salting sidewalks and shoveling snow on sidewalks that surround the
site; and
9.2.16 Exterior site fencing, fence wrapping and construction signage.
Section 9.3 Costs Not to Be Reimbursed.
All costs not specifically listed in Section 9.1 as being within the Cost of the Work are
excluded from the Cost of the Work and shall not be reimbursable. In particular, but without
limitation, the Cost of the Work does not include any of the following:
9.3.1 Any personnel or labor costs other than those provided for in Section
9.1.2 (a);
9.3.2 Fees for any permits or licenses the Design-Builder requires to
conduct its general business operations;
9.3.3 Capital expenses and interest on capital employed for the Work;
64
9.3.4 The cost of home or regional offices, it being understood that
compensation for such costs included in the Design -Build Fee and
Award Fee.
9.3.5 Sales or use taxes, unless the Design-Builder establishes that applicable
law required payment of such taxes;
9.3.6 Costs due to the errors or omissions of the Design -Builder or its
Subcontractors or suppliers at all tiers, negligent or otherwise;
9.3.7 Costs dues to breach of the Agreement by the Design Builder or its
Subcontractors or material suppliers at all tiers, including, without
limitation, costs arising from defective or damaged Work or its
correction, disposal of materials or equipment erroneously supplied, and
repairs to property damaged by the Design-Builder or its Subcontractors
or material suppliers at all tiers;
9.3.8 Any costs incurred in performing work of any kind before Notice to
Proceed, unless specifically authorized by a duly authorized
Contracting Officer of the Department in advance and in writing;
9.3.9 Direct or indirect costs of any kind, except those expressly included in
Section 9.1.
9.4 Discounts, Rebates And Refunds.
9.4.1 Cash discounts obtained on payments made by the Design Builder shall
accrue to the Department if: (i) before making such payment(s), the
Design-Builder included them in an Application for Payment and
received payment therefor from the Department; or (ii) the Department
has deposited funds with the Design-Builder with which to make such
payment(s). All other cash discounts shall accrue to the Design-
Builder. Trade discounts, rebates, refunds and amounts received from
sales of surplus materials and equipment shall accrue to the
Department, and the Design Builder shall make provisions so that such
amounts can be secured.
9.4.2 Amounts that accrue to the Department in accordance with the
provisions of Section 9.1.4 shall be credited to the Department as a
deduction from the Cost of the Work.
Section 9.5 Facilitating Tax Exempt Purchases.
The Department expects that the Project will qualify as tax-exempt under applicable
laws. Upon request, the Department will provide the Design-Builder with the necessary
information relating to the tax exemption. In the event any savings are attributable to the tax-
65
exempt status of the Project, the Design-Builder shall not be entitled to share in such savings.
Section 9.6 Accounting Records.
The Design-Builder shall keep full and detailed accounts and exercise such controls as
may be necessary for proper financial management under the Agreement. The Design-Builder’s
accounting and control systems shall be satisfactory to the Department. The Department, its
representatives, and the Department’s accountants shall be afforded access to the Design-Builder’s
records, books, correspondence, instruction, drawings, receipts, subcontracts, purchase orders,
vouchers, memoranda and other data relating to this Project, and the Design-Builder shall preserve
such documentation relating to the Project for a period of three years after final payment, or for
such longer period as may be required by law.
Section 9.7 Excluded Cost Elements.
It is the Department’s intent that the Design-Builder provide a turnkey solution for the
implementation of the Project, and the Project budget set herein has been developed based on such
framework. The Design-Builder shall advance the Project in a manner consistent with the project
budget with the understanding that only the following cost elements shall be excluded from the
project budget set forth herein:
1. 3rd Party Material Testing;
2. 3rd Party Commissioning;
3. 3rd Party Inspections;
4. 3rd Party Plan Review; and
5. Costs of active DPR
equipment.
66
Article 10 CONSTRUCTION PHASE PAYMENTS
Section 10.1 Progress Payments.
The Design-Builder shall be compensated in a series of progress payments and a Final
Payment, for Work completed in accordance with the Agreement, and for which proper
Applications for Payment have been submitted and approved. The amount of each progress
payment shall be as follows:
The Cost of Work completed to date Plus Cost of Work for Pay Period x portion
of Design-Build Fee not at risk
Current approved estimated
Cost of Work through Final Completion
Plus Any subset of the At Risk Portion of the Design-Build Fee to which the
Department has determined the Design-Builder to be Entitled
Minus Applicable retainage
Minus Amounts previously paid by the Department
Section 10.2 Retention.
The Department shall withhold from each progress payment an amount equal to ten
percent (10%) of the payment related to: (i) each Subcontract and supply agreement; (ii) the
Preconstruction Fee; (iii) Design-Build Fee; (iv) General Conditions Costs; and (v) the Cost of the
Work related to each item of Self-Performed Work, until such time as fifty percent (50%) of the
then currently budgeted cost associated with each such item has been invoiced, at which point the
Department may cease retaining against such item; provided, however, that retention shall not be
held on the costs of bonds, insurances, and those elements of the general requirements which
consist of a single, insolated effort such as dumpster disposal and safety carpentry. The
Department may elect to increase the retention on any trade Subcontractor up to ten percent (10%)
in the event the Department determines that the situation so warrants. The Department, in its sole
and absolute discretion, may elect to reduce the retainage relating to a particular trade
Subcontractor, or the Cost of the Work related to a specific item of Self-Performed Work to zero
upon: (a) satisfactory completion of such Work; (b) submission of all required warranties,
certifications, and operating or maintenance instructions with respect to that Work; and (c)
execution of appropriate waivers of lien and releases of claims. However, in no event shall the
total retainage held by the Department be reduced to an amount that is less than two and one-half
percent (2.5%) of the GMP.
Section 10.3 Documents Required with Application for Payment.
Each Application for Payment shall be accompanied by the Design-Builder’s job cost
ledgers in a form satisfactory to the Department, the Subcontractors’ and Suppliers’ Applications
for Payment on AIA Documents G702 and G703 or other form acceptable to the Department, and
such other supporting documentation as the Department may reasonably request. Each Application
67
for Payment shall include detailed documentation of costs as a condition to approving progress
payments, but the Design-Builder shall nevertheless maintain complete documentation of the costs.
An executed Release of Liens and Claims in the format required by the Contracting Officer must
accompany each Application for Payment.
Section 10.4 Stored Materials.
The Department shall not be required to pay for materials stored at the site or stored at
other locations absent prior written authorization to do so, which authorization may be withheld at
the Department's sole discretion. If the Department expressly agrees to pay for materials stored at
the site but not yet incorporated into the Work, the Application for Payment may also include a
request for payment of the cost of such materials, if the materials have been delivered to the site,
and suitably stored. Such requests shall be documented by appropriate invoices and bills of sale.
Payment for stored materials shall be conditioned also on the Design-Builder’s representation that
it has inspected the material and found it to be free from defect and otherwise in conformity with
this Agreement, and on satisfactory evidence that the materials are insured under the builder’s risk
policy. Further, if the Design-Builder requests the Department to allow payments for storage of
materials offsite, the Design-Builder shall be required, inter alia, to agree to execution of proper
documentation to afford the Department a secured interest in the materials upon payment.
Section 10.5 Design-Builder’s Certification.
Each Application for Payment shall be accompanied by the Design-Builder's signed
certification that:
Section 10.5.1. all amounts paid to the Design-Builder on the previous
Application for Payment that were attributable to Subcontractor Work or to
materials or equipment being supplied by any supplier have been paid over to
the appropriate Subcontractors and suppliers;
Section 10.5.2. that all amounts currently sought for Subcontractor Work or
supply of materials or equipment are currently due and owing to the
Subcontractors and material or equipment suppliers;
Section 10.5.3. that all Work, materials or equipment for which payment is
sought is, to the best of the Design-Builder's knowledge, free from defect and
meets all of the requirements set forth in the Agreement: and that
Section 10.5.4. that the Design-Builder’s subcontracts include the clauses
required by subparagraphs (1) through (4) of D.C. Official Code §2-
221.02(d) (2017).
Section 10.5.5. The Design-Builder shall not include in an Application for
Payment amounts for Work for which the Design-Builder does not intend to
pay.
Section 10.6 Lien Waivers.
68
Each Application for Payment shall be accompanied by written waivers of the right to
file a mechanic’s lien and all other claims, in a form substantially similar to Exhibit K for the
Design Builder and all Subcontractors and material suppliers at all tiers who have supplied labor
or material or both for which payment is requested, subject only to receipt of payment. If the
Department so requests, the Design-Builder shall also submit unconditional waivers of liens for
itself and all Subcontractors and material suppliers at all tiers with respect to Work or materials or
equipment for which payment has been previously made, and additional forms of waiver
acknowledging receipt of final payment under the Agreement, and providing final release of such
liens.
Section 10.7 Warranty of Title.
By submitting an Application for Payment, the Design-Builder warrants to the
Department that title to all Work for which payment is sought will pass to the Department, without
liens, claims, or other encumbrances, upon the receipt of payment by the Design-Builder. The
Department may require execution of appropriate documents to confirm passage of clear title.
Passage of title shall not operate to pass the risk of loss with respect to the Work in question. Risk
of loss remains with the Design-Builder until Substantial Completion, unless otherwise agreed by
the Department, in writing.
Section 10.8 Submission.
On the twenty-fifth day of each month the Design-Builder shall submit to the
Department (with a copy to the Program Manager) an Application for Payment, which Application
for Payment shall cover the entire month during which the Application for Payment is submitted.
All amounts formally submitted via Application for Payment and not disputed by the Department
shall be due and payable on the last day of the month following submission or, if that is not a
business day, on the following business day. If the Design-Builder and Department are unable to
agree on the amounts properly due and owing, the Department shall pay in accordance with its
good faith determination and the Design-Builder may protest and pursue a claim as provided in
this Agreement and the Standard Contract Provisions (Construction Contracts and Architectural
and Engineering Services Contracts).
Section 10.9 Right to Withhold Payments.
The Department will notify the Design-Builder within fifteen (15) days after receiving
any Application for Payment of any defect in the Application for Payment or the Design-Builder’s
performance which may result in the Department’s declining to pay all or a part of the requested
amount. The Department may withhold payment from the Design-Builder, in whole or part, as
appropriate, if:
10.9.1 the Work is defective and such defects have not been
remedied; or
10.9.2 the Department has determined that the Design-Builder’s
progress has fallen behind the Project Schedule, and the
Design-Builder fails, within ten (10) calendar days of the
Department’s written demand, to provide the Department
69
with a realistic and acceptable Recovery Plan in
accordance with 5.18; or
10.9.3 the Design-Builder's monthly schedule update reflects that
the Design-Builder has fallen behind the Project Schedule,
and the Design-Builder fails to include, in the same
monthly report, a realistic and acceptable Recovery Plan in
accordance with 5.18; or
10.9.4 the Design-Builder has failed to provide reports in full
compliance with 5.5 of this Agreement; or
10.9.5 the Design-Builder has failed to pay Subcontractors or
suppliers promptly or has made false or inaccurate
certifications that payments to Subcontractors or suppliers
are due or have been made; or
10.9.6 any mechanic’s lien has been filed against the Department,
the site or any portion thereof or interest therein, or any
improvements on the site, even though the Department has
paid all undisputed amounts due to the Design-Builder, and
the Design-Builder, upon notice, has failed to remove the
lien, by bonding it off or otherwise, within ten (10) calendar
days; or
10.9.7 the Department has reasonable evidence that the Work will
not be completed by the Substantial Completion Date, as
required, that the unpaid balance of the GMP would not be
adequate to cover actual or liquidated damages arising from
the anticipated delay; or
10.9.8 the Department has reasonable evidence that the Work
cannot be completed for the unpaid balance of the GMP; or
10.9.9 the Design-Builder is otherwise in substantial breach of this
Agreement (including, without limitation, failures to
comply with LSDBE Utilization requirements.
10.9.10 the Application for Payment is incomplete, unsubstantiated
and/or does not contain sufficient documentation for evaluation
by the Contracting Officer.
Section 10.10 Payment Not Acceptance.
Payment of any progress payment or final payment shall not constitute acceptance of
Work that is defective or otherwise fails to conform to the Agreement, or a waiver of any rights or
70
remedies the Department may have with respect to defective or nonconforming Work.
Section 10.11 Department Not Obligated to Others.
The Department shall have no obligation to pay or be responsible in any way for payments
to a consultant or subcontractor performing portions of the Work.
Section 10.12 Final Payment.
A final payment (“Final Payment”) shall be made by the Department to the Design-Builder
when: (i) Final Completion has been achieved; (ii) all deliverables set forth in Section 5.14, and
Exhibit M have been delivered to and are accepted by the Department; (iii) the Design-Builder
provides the Department a complete set of product manuals (O&M), training videos, and
warranties, as applicable; and (iv) a complete final Application for Payment and a final accounting
for the Cost of the Work have been submitted by the Design-Builder and reviewed by the
Department and, to the extent the Department determines appropriate, the Department’s
accountants. The Department shall make Final Payment not more than thirty (30) days after the
Department verifies the amount of the final payment set forth in a complete final Application for
Payment.
10.12.1The 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
Design-Builder’s final accounting and the Design-Build
Fee; but not more than the GMP.
10.12.1.2 Subtract amounts, if any, for which the Department
withholds pursuant to the Agreement.
10.12.1.3 Subtract the aggregate of previous payments made by the
Department. (If the aggregate of previous payments made
by the Department exceeds the amount due the Design-
Builder, the Design-Builder shall promptly reimburse the
difference to the Department).
10.12.1.4 The Final Payment shall take into account any savings
accruing to the Department or the Design-Builder.
10.12.2The Department will review and report in writing on the
Design-Builder’s final accounting within 30 days after
delivery of the final accounting to the Department by the
Design-Builder. Based upon Department’s determination
of the Cost of the Work, and provided the other conditions
of Section 13.1 have been met, the Department will, within
fifteen (15) days after the Department’s determination,
71
notify the Design-Builder of any amount that the
Department will withhold and the reasons therefor. The
time periods stated in this Paragraph 10.12 supersede those
for typical progress payments.
10.12.3 If the Department determines that the Cost of the Work is than claimed by the Design-Builder,
the Design-Builder shall be entitled to proceed in accordance with Article 3 of the Standard
Contract Provisions. Pending a final resolution of the disputed amount, the Department shall
pay the Design-Builder the amount that the Department determines to be appropriate.
72
Article 11 - INSURANCE
Section 11.1 Insurance Required by the Project
A. GENERAL REQUIREMENTS. The Contractor at its sole expense shall procure and
maintain, during the entire period of performance under this contract, the types of insurance
specified below. The Contractor shall submit a Certificate of Insurance to the Contra cting
Officer (CO) giving evidence of the required coverage prior to commencing performance
under this contract. In no event shall any work be performed until the required Certificates
of Insurance signed by an authorized representative of the insurer(s) have been provided to,
and accepted by, the CO.
The Government of the District of Columbia shall be included in all policies, where applicable
and allowable by law, required hereunder to be maintained by the Contractor and its
subcontractors (except for workers’ compensation and professional liability insurance) as an
additional insureds for claims against The Government of the District of Columbia relating
to this contract, with the understanding that any affirmative obligation imposed upon the
insured Contractor or its subcontractors (including without limitation the liability to pay
premiums) shall be the sole obligation of the Contractor or its subcontractors, and not the
additional insured. The additional insured status under the Contractor’s and its
subcontractors’ Commercial General Liability insu rance policies shall be effected using the
ISO Additional Insured Endorsement form CG 20 10 11 85 (or CG 20 10 07 04 and CG 20
37 07 04) or such other endorsement or combination of endorsements providing coverage at
least as broad and approved by the CO in writing. All of the Contractor’s and its
subcontractors’ liability policies (except for workers’ compensation and professional liability
insurance) shall be endorsed using ISO form CG 20 01 04 13 or its equivalent so as to indicate
that such policies pro vide primary coverage (without any right of contribution by any other
insurance, reinsurance or self-insurance, including any deductible or retention, maintained by
an Additional Insured) for all claims against the additional insured arising out of the
performance of this Statement of Work by the Contractor or its subcontractors, or anyone for
whom the Contractor or its subcontractors may be liable. These policies shall include a
separation of insureds clause applicable to the additional insured.
If the Contractor and/or its subcontractors maintain broader coverage and/or higher limits
than the minimums shown below, the District requires and shall be entitled to the broader
coverage and/or the higher limits maintained by the Contractor and subcontractors.
B. INSURANCE REQUIREMENTS
1. Commercial General Liability Insurance (“CGL”) - The Contractor shall provide evidence
satisfactory to the CO with respect to the services performed that it carries a CGL policy,
written on an occurrence (not claims-made) basis, on Insurance Services Office, Inc. (“ISO”)
form CG 00 01 04 13 (or another occurrence-based form with coverage at least as broad and
approved by the CO in writing), covering liability for all ongoing and completed operations
of the Contractor and under all subcontracts, covering cla ims for bodily injury, including
73
without limitation sickness, disease or death and mental anguish of any persons, broad form
property damage, including loss of use resulting therefrom, personal and advertising injury,
and including coverage for liability arising out of an Insured Contract (including the tort
liability of another assumed in a contract) and acts of terrorism (whether caused by a foreign or
domestic source). Such coverage shall have limits of liability of not less than $1,000,000 for
each occurrence, and a $2,000,000 general aggregate.
The Commercial General Liability shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insured coverage using
ISO form CG 2015 0413 (or its equivalent) to The Government of the District of
Columbia
b) Coverage available to the additional insureds shall apply on a primary and non -
contributing basis as respects any other insurance, deductibles, or self -insurance
available to the additional insureds
c) A waiver of subrogation in favor of The Government of the District of Columbia
d) Any Annual Aggregate shall apply on a per location or per project basis (where
applicable)
e) Defense costs shall be in addition to and not erode the limits of liability
2. Automobile Liability Insurance - The Contractor shall provide evidence satisfactory to the
CO of commercial (business) automobile liability insurance written on ISO form CA 00 01
10 13 (or another form with coverage at least as broad and approved by the CO in writing)
including coverage for all owned, hired, borrowed and non -owned vehicles and equipment
used by the Contractor in connection with work under this agreement, with a minimum
combined single limit of $1,000,000 for bodily injury or death and prop erty 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, burning, collision or
derailment of any conveyance transporting the covered "auto".
b) Collision Coverage - Caused by: The covered "auto's" collision with another
object or the covered "auto's" overturn.
The Commercial Auto Liability policy shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insured coverage to The
Government of the District of Columbia
b) Coverage available to the additional insureds shall apply on a primary and non -
contributing basis as respects any other insurance, deductibles, or self -insurance
available to the additional insureds
c) A waiver of subrogation in favor of The Government of the District of Columbia
d) Defense costs shall be in addition to and not erode the limits of liability
74
e) If applicable, include Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Business Auto, Motor Carrier, and Truckers (or its
equivalent)
3. Workers’ Compensation Insurance - The Contractor shall provide evidence satisfactory to the
CO of Workers’ Compensation insurance in accordance with the statutory mandates of the
District of Columbia or the jurisdiction in which the contract is performed.
Employer’s Liability Insurance - The Contractor shall provide evidence satisfactory to the
CO of employer’s liability insurance as follows: $500,000 per accident for injury; $500,000
per employee for disease; and $500,000 for policy disease limit.
The Workers Compensation and Employers Liability shall be further endorsed to:
a) Include a Waiver of Subrogation in favor of The Government of the District of
Columbia.
b) Where applicable, include United States Longshore and Harbor Workers
Compensation Act (USL&H)
c) Where applicable, include Jones Act Coverage for seamen or crew members on an “if
any” basis.
4. Network Security/Privacy (Cyber) Liability Insurance covering acts, errors, omissions,
breach of contract, and violation of any consumer protection laws arising out of Contractor’s
operations or services with a limit of $2,000,000 per claim and in the aggregate. Such
coverage shall include but not be limite d to, third party and first party coverage for loss or
disclosure of any data, including personally identifiable information and payment card
information, network security failure, violation of any consum er 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 confident iality, invasion of privacy, or violations of
any other legal protections for personal information, defamation, libel, slander, commercial
disparagement, negligent transmission of computer virus, or use of computer networks in
connection with denial of service attacks. Such coverage shall include regulatory defense and
fines/penalties in any jurisdiction anywhere in the world. Such coverage shall include
contractual privacy coverage for data breach response and crisis management costs that would
be incurred by Contractor on behalf of The Government of the District of Columbia in the
event of a data breach including legal and forensic expenses, notification costs, credit
monitoring costs, and costs to operate a call center. Contractor shall maintain coverage in
force during the term of this Agreement and for an extended reporting period of not less than
two (2) years after.
5. Professional Liability Insurance (Errors & Omissions) - The Contractor shall provide
Professional Liability Insurance (Errors and Omissions) to cover liability resulting from any
error or omission in the performance of professional services under this Contract. The policy
shall provide limits of $1,000,000 p er claim or per occurrence for each wrongful act and
$2,000,000 annual aggregate. The Contractor warrants that any applicable retroactive date
precedes the date the Contractor first performed any professional services for the Government
75
of the District of Columbia and that continuous coverage will be maintained or an extended
reporting period will be exercised for a period of at least ten years after the completion of the
professional services. Limits may not be shared with other lines of coverage.
6. Commercial Umbrella or Excess Liability - The Contractor shall provide evidence
satisfactory to the CO of commercial umbrella or excess liability insurance with minimum
limits of $10,000,000 per occurrence and $10,000,000 in the annual aggregate, following the
form and in excess of all liability policies. All liability coverages must be scheduled under
the umbrella and/or excess policy. The insurance required under this paragraph shall be
written in a form that annually reinstates all required limits. Coverage shall be primary to any
insurance, self -insurance or reinsurance maintained by The Government of the District of
Columbia and the “other insurance” provision must be amended in accordance with this
requirement and principles of vertical exhaustion.
7. Crime Insurance (3rd Party Indemnity) - The Contractor shall provide a Crime policy
including 3rd party fidelity to cover the dishonest acts of Contractor s, its employees and/or
volunteers which result in a loss to the District. The Government of the District of Columbia
shall be included as loss payee. The policy shall provide a limit of $15.000 per occurrence.
8. Environmental Liability/Contractors Pollution Liability Insurance - The Contractor shall
provide evidence satisfactory to the CO of environmental liability insurance covering losses
caused by pollution or other hazardous conditions arising from ongoing or completed
operations of the Contractor. Such insurance shall apply to bodily injury, property damage
(including loss of use of damaged property or of property that has been physically injured),
clean-up costs, transit and non-owned disposal sites. Coverage shall extend to defense costs
and expenses incurred in the investigation, civil fines, penalties and damages or settlements.
There shall be neither an exclusion nor a sublimit for mold or fungus -related claims. The
minimum limits required under this paragraph shall be $2,000,000 per occurrence and
$2,000,000 in the annual aggregate. If such coverage is written on a claims -made basis, the
Contractor warrants that any retroactive date applicable to coverages under the policy
precedes the Contractor’s p erformance of any work under the Contract and that continuous
completed operations coverage will be maintained for at least ten (10) years or an extended
reporting period shall be purchased for no less than ten (10) years after completion.
The Contractor also must furnish to the CO Owner certificates of insurance evidencing
environmental liability insurance maintained by third party transportation and disposal
site operators(s) used by the Contractor for losses arising from facility(ies) accepting,
storing or disposing hazardous mat erials or other waste as a result of the Contractor’s
operations. Such coverages must be maintained with limits of at least the amounts set
forth above.
The Environmental Liability policy shall be further endorsed to include The Government
of the District of Columbia as an Additional Insured.
9. Installation-Floater Insurance - For projects not involving structural alterations, the contractor
shall provide an installation floater policy with a limit equal to the Property values being
76
installed as part of the project . The policy shall cover property while located at the project
site, at temporary locations, or in transit; deductibles will be the sole responsibility of the
contractor.
10. Sexual/Physical Abuse & Molestation - The Contractor shall provide evidence satisfactory to
the CO with respect to the services performed that it carries $1,000,000 per occurrence limits;
$2,000,000 aggregate of affirmative abuse and molestation liability coverage. Coverage
should include physical abuse, such as sexual or other bodily harm and non -physical abuse,
such as verbal, emotional, or mental abuse; any actual, threatened or alleged act; errors,
omission or misconduct. This insurance requirement wi ll be considered met if the general
liability insurance includes an affirmative sexual abuse and molestation endorsement for the
required amounts or through a separate stand-alone sexual abuse and molestation policy with
confirmation there are no exclusion s for abuse or assault & battery under the General
Liability. So called “silent” coverage or “shared” limits under a commercial general liability
or professional liability policy will not be acceptable. Limits may not be shared with other
lines of coverage. The applicable policy may need to be submitted to the ORM for compliance
review.
Construction Projects Controlled by the District
For construction projects controlled by the District, the District will procure the following
policies with the District listed as the first named insured. Since the District will control
the placement of the policies, the District should not contractually bind itself to secure
coverage broader than the minimum that 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 risk insurance, written
on an “all risk”, special causes of loss or equivalent form. Builders risk coverage wi ll
include boiler and machinery / equipment breakdown, earthquake, and flood perils.
Building ordnance and terrorism coverage will be included.
The deductible shall not exceed $25,000 except for earthquake, flood, windstorm, water
damage or other perils at the discretion of the District and as available in the insurance
industry.
The project limit shall equal the replacement value of the structure, including coverage
for property in transit and stored off premises.
At the discretion of the District, builders risk coverage will extend to soft costs and
delayed completion.
Builders risk insurance shall include the interests of The Government of the District of
Columbia, the Contractor, Subcontractors and Sub – subcontractors in the project.
C. SUBCONTRACTOR INSURANCE REQUIREMENTS
77
Any and all subcontractors engaged by Contractor for work under this agreement shall be
required to have the same insured required of Contractor. Should the Contractor wish to
propose different insurance requirements than outlined below, then, prior to co mmencement
of work by the subcontractor, the Contractor shall submit in writing the name and brief
description of work to be performed by the subcontractor on the Subcontractors Insurance
Requirement Template provided to the Office of Risk Management (ORM) . ORM will
determine the insurance requirements applicable to the subcontractor and promptly deliver
such requirements in writing to the Contractor. In either instance, the Contractor must provide
proof of the subcontractor's required insurance prior to co mmencement of work by the
subcontractor.
D. PRIMARY AND NONCONTRIBUTORY INSURANCE
The insurance required herein shall be primary to and will not seek contribution from any
other insurance, reinsurance or self -insurance including any deductible or retention,
maintained by the Government of the District of Columbia.
E. DURATION. The Contractor shall carry all required insurance until all contract work is
accepted by The Government of the District of Columbia and shall carry listed coverages for
ten years for construction projects following final acceptance of the work performed under
this contract and two years for non-construction related contracts.
F. LIABILITY. These are the required minimum insurance requirements established by The
Government of the District of Columbia. However, it is understood that The Government of
the District of Columbia does not in any way represent that the insurance or the limits of
insurance specified herein are sufficient or adequate to protect your interests or liabilities and
will not in any way limit the contractor’s liability under this contract.
G. CONTRACTOR’S PROPERTY. Contractor and subcontractors are solely responsible for
any loss or damage to their personal property, including but not limited to tools and
equipment, scaffolding, and temporary structures, rented machinery, or owned and leased
equipment. A waiver of subrogation shall apply in favor of The Government of the District
of Columbia.
H. MEASURE OF PAYMENT . The Government of the District of Columbia shall not make
any separate measure or payment for the cost of insurance and bonds. The Contractor shall
include all of the costs of insurance and bonds in the contract price.
I. NOTIFICATION. The Contractor shall ensure that all policies provide that the CO shall be
given thirty (30) days prior written notice in the event of cancellation, non -renewal, or
material changes to the extent such cancellation or material changes results in Contractor no
long complying with the above requirements. The Contractor shall provide the CO with ten
(10) days’ prior written notice in the event of non-payment of premium. The Contractor will
also provide the CO with an updated Certificate of Insu rance 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
78
least 30 days’ notice of the change. Contractor must comply, at your expense, and deliver to
the CO evidence of compliance before the change becomes effective.
J. CERTIFICATES OF INSURANCE. The Contractor must send to CO, at least 10 days after
execution of this Agreement, certificates of insurance evidencing the required insurance
coverage and endorsements required herein. Contractor must also provide us with evidence
of renewal before the expiration date of each insurance policy. Contractor is responsible for
providing us with 30 days advanced written notice if the certificate of insurance by the insurer
has been canceled, reduced in coverage, or otherwise altered. Certificates of insurance must
reference the corresponding contract number. Evidence of insurance shall be submitted to:
The Government of the District of Columbia
Suzi Tabot
Contracting Officer
Department of General Services
Contracts & Procurement Division
3924 Minnesota Avenue, 5th floor
Washington, DC 20019
suzi.tabot@dc.gov
The CO may request and the Contractor shall promptly deliver updated certificates of
insurance, endorsements indicating the required coverages, and/or certified copies of the
insurance policies. If the insurance initially obtained by the Contractor expire s prior to
completion of the contract, renewal certificates of insurance and additional insured and other
endorsements shall be furnished to the CO prior to the date of expiration of all such initial
insurance. For all coverage required to be maintained a fter completion, an additional
certificate of insurance evidencing such coverage shall be submitted to the CO on an annual
basis as the coverage is renewed (or replaced).
K. DISCLOSURE OF INFORMATION. The Contractor agrees that The Government of the
District of Columbia may disclose the name and contact information of its insurers to any
third party which presents a claim against The Government of the District of Columbia for
any damages or claims resulting from or arising out of work performed by the Contractor, its
agents, employees, servants or subcontractors in the performance of this contract.
L. CARRIER RATINGS. All Contractor’s and its subcontractors’ insurance required in
connection with this contract shall be written by insurance companies with an A.M. Best
Insurance Guide rating of at least A - VII or better (or the equivalent by any other rat ing
agency) and licensed in the District of Columbia.
M. WARRANTIES. When applicable, the Contractor should be named as an additional insured
on the applicable manufacturer’s/distributer’s Commercial General Liability policy using
Insurance Services Office, Inc. (“ISO”) form CG 20 15 04 13 (or another occurrence -based
form with coverage at least as broad). CO should collect, review for accuracy, and maintain
all warranties for goods and services.
79
Article 12 BONDS Section
12.1 Performance Bond and Payment Bond.
The Design-Builder shall, before commencing the Construction Phase, provide to the
Department a payment bond and performance bond, each with a penal sum equal to the full value of
the Agreement, NTE or the GMP. These bonds shall cover all aspects of the Project, including but
not limited to design fees, design -build fees, general condition price, and any allowances,
ensuring full protection for the Department and all subcontractors and suppliers. Such bonds
shall remain in full force and effect until Final Completion is achieved and the Department shall be
able to draw upon such bonds regardless of the amount paid by the Department to the Design-
Builder, even if such amount exceeds the penal value of such bonds. Unless otherwise directed by
the Department, the Design-Builder shall require all Subcontractors whose Subcontract prices
exceed One Hundred Thousand Dollars ($100,000.00) to provide payment and performance bonds,
with a penal sum equal to one hundred percent (100%) of the subcontract price. All bonds must be
in a form acceptable to the Department, its lenders or bond trustee, and issued by a surety
authorized to do business in the District of Columbia and bonding company listed on the United
States Department of Treasury’s Listing of Approved Sureties. All subcontractors’ bonds must
include a dual obligee rider, naming the Design-Builder and the Department as dual obligees. When
GMP is established via a GMP amendment, and if the GMP pursuant to the terms of the Agreement
is increased thereafter, the Department may require that the amount of the bonds be increased in
the amount of one hundred percent (100%) of the GMP and each GMP increase, and the Design-
Builder shall promptly comply. The Design-Builder shall furnish a copy of its bonds to any
potential beneficiary of the bonds, or permit that person or company to make a copy. If the bonds
provided become unacceptable to the Department, the Design-Builder shall promptly provide
substitute security acceptable to the Department. If the Design-Builder intends to exercise its rights
as dual obligee under any trade Subcontractor’s bond, it shall first give the Department twenty (20)
days written notice, so that the Department may lodge any objection it may reasonably have to the
proposed action.
80
Article 13 ECONOMIC INCLUSION REQUIREMENTS
Section 13.1 LSDBE Utilization.
If the Design-Builder subcontracts any work, at least 35% of the dollar volume of the Agreement shall
be subcontracted with small business enterprises (“SBE”). If there are insufficient qualified SBEs then
the subcontracting may be satisfied by subcontracting 35% of the dollar volume to any qualified certified
business enterprises (“CBE”). For subcontracted work, pass-through entities will not count toward this
goal. In order to count toward the subcontracting requirement, the SBE must perform at least 35% of
the work that is being counted toward the goal with its own forces. The Local, Small, and
Disadvantaged Business Enterprises (“LSDBE”) certification shall be, in each case, as of the effective
date of the applicable subcontract. Supply agreements with material suppliers shall be counted toward
meeting this goal. The Design-Builder has developed a Preliminary Subcontracting Plan that is attached
hereto as Exhibit D. The Design-Builder shall comply with the terms of the SBE Subcontracting Plan
in making purchases and administering its subcontracts and supply agreements.
Section 13.2 Mandatory Subcontracting Requirements
Section 13.2.1 Unless the Director of the Department of Small and Local Business Development
(“DSLBD”) has approved a waiver in writing, in accordance with D.C. Official Code § 2-218.51,
for all contracts in excess of $250,000, at least 35% of the dollar volume of the co ntract shall be
subcontracted to qualified SBEs.
Section 13.2.2 If there are insufficient SBEs to completely fulfill the requirement of Section
13.2.1, then the subcontracting may be satisfied by subcontracting 35% of the dollar volume to
any qualified certified business enterprises (“CBE (s)”); provided, however, that all reasonable
efforts shall be made to ensure that SBEs are significant participants in the overall subcontracting
work.
Section 13.2.3 A prime contractor that is certified by DSLBD as a small, local or disadvantaged
business enterprise shall not be required to comply with the provisions of Section 13.2.1 and
Section13.2.2.
Section 13.2.4 Except as provided in Section 13.2.1 and Section 13.2.2, a prime contractor that
is a CBE and has been granted a proposal preference pursuant to D.C. Official Code § 2 -218.43,
or is selected through a set-aside program, shall perform at least 35% of the contracting effort with
its own organization and resource s and, if it subcontracts, 35% of the subcontracting effort shall
be with CBEs. A CBE prime contractor that performs less than 35% of the contracting effort shall
be subject to enforcement actions under D.C. Official Code § 2-218.63.
Section 13.2.5 A prime contractor that is a certified joint venture and has been granted a proposal
preference pursuant to D.C. Official Code § 2 -218.43, or is selected through a set -aside program,
shall perform at least 50% of the contracting effort with its own organization and resources and, if
it subcontracts, 35% of the subcontracting effort shall be with CBEs. A certified joint venture
prime contractor that performs less than 50% of the contracting effort shall be subject to
enforcement actions under D.C. Official Code § 2-218.63.
81
Section 13.2.6 Each CBE utilized to meet these subcontracting requirements shall perform at least
35% of its contracting effort with its own organization and resources.
Section 13.2.7. A prime contractor that is a CBE and has been granted a proposal preference
pursuant to D.C. Official Code § 2 -218.43, or is selected through a set -aside program, shall
perform at least 50% of the on-site work with its own organization and resources if the contract is
$1 million or less.
Section 13.2.8. Furniture Fixtures & Equipment (FF&E).
The Contractor shall ensure that maximum competition is sought for the Project’s FF&E
requirements. Additionally, the Contractor shall ensure that qualified vendors certified by the
District’s Department of Small and Local Business Development as small SBE s are provided an
opportunity to offer a bid/proposal for any of the Project’s FF&E requirements. Qualified vendors
can be found on the District’s Office of Contracting Procurement’s (OCP) District of Columbia
Supply Schedule (DCSS) in the Furniture and F urniture Management category
(https://ocp.dc.gov/page/dcss). The Contractor shall ensure that a minimum of three (3) qualified
SBE vendors are provided the FF&E bid package. The Contractor shall document the distribution
of the bid package to all vendors and responses received, including no -bids in the FF&E Bid
Package. Upon selection, the Contractor shall provide an FF&E Selection Summary to the PM
and CO. The FF&E Selection Summary shall include, at a minimum, the identification of all
vendors provided an opportunity to submit a bid/proposal, pricing of bid/ proposals received,
identification of selected vendor with a brief explanation of how the decision was reached, and
any other information relevant to the procurement of the Project’s FF&E vendor.
Section 13.3 Subcontracting Plan (Exhibit D)
If the Design-Builder is required by law to subcontract under this Agreement, then the subcontracting
plan submitted with its Proposal, may only be amended with the prior written approval of the
Contracting Officer and Director of DSLBD, as previously stated herein; and, any reduction in the dollar
volume of the subcontracted portion resulting from an amendment of the Subcontracting Plan shall inure
to the benefit of the District. The Subcontracting Plan shall include the following:
1. The name and address of each subcontractor;
2. A current certification number of the small or certified business enterprise;
3. The scope of work to be performed by each subcontractor; and
4. The price that the prime contractor will pay each subcontractor.
Section 13.4 Copies of Subcontracts
Within twenty-one (21) days of the date of award, the Contractor shall provide fully executed copies
of all subcontracts identified in the subcontracting plan to the Contracting Officer (CO), District of
Columbia Auditor and the Director of DSLBD.
82
Section 13.5 Subcontracting Plan Compliance Reporting
Section 13.5.1 If the Contractor has a subcontracting plan required by law for this contract, the
Contractor shall submit a quarterly report to the Contracting Officer, District of Columbia Auditor,
and the Director of DSLBD. The quarterly report shall include the following information for each
subcontract identified in the subcontracting plan:
a. The price that the prime contractor will pay each subcontractor under the subcontract;
b. A description of the goods procured or the services subcontracted for;
c. The amount paid by the prime contractor under the subcontract; and
d. A copy of the fully executed subcontract, if it was not provided with an earlier quarterly
report.
Section 13.5.2 If the fully executed subcontract is not provided with the quarterly report, the prime
contractor will not receive credit toward its subcontracting requirements for that subcontract.
Section 13.6 Annual Meetings
Upon at least 30-days written notice provided by DSLBD, the Contractor shall meet annually with the
CO, CA, District of Columbia Auditor and the Director of DSLBD to provide an update on its
subcontracting plan.
Section 13.7 DSLBD Notices
The Contractor shall provide written notice to the DSLBD and the District of Columbia Auditor upon
commencement of the contract and when the contract is completed.
Section 13.8 Enforcement and Penalties for Breach of Subcontracting Plan
Section 13.8.1 A contractor shall be deemed to have breached a subcontracting plan required by
law if the contractor (i) fails to submit subcontracting plan monitoring or compliance reports or
other required subcontracting information in a reasonably timely manner; (ii) submits a
monitoring or compliance report or other required subcontracting information containing a
materially false statement; or (iii) fails to meet its subcontracting requirements.
Section 13.8.2 A contractor that is found to have breached its subcontracting plan for utilization
of CBEs in the performance of a contract shall be subject to the imposition of penalties, including
monetary fines in accordance with D.C. Official Code § 2-218.63.
Section 13.8.3 If the CO determines the Contractor’s failure to be a material breach of the contract,
the CO shall have cause to terminate the contract under the default provisions in Article 16 of the
Contract.
Section 13.8.4 Neither the Design -Builder nor a Subcontractor may remove a Subcontractor or
tier-Subcontractor if such Subcontractor or tier-Subcontractor is certified as an LSDBE company
unless the Department approves of such removal, in writing. The Department may cond ition its
83
approval upon the Design-Builder developing a plan that is, in the Department’s sole and absolute
judgment, adequate to maintain the level of LSDBE participation in the Project.
Section 13.9 Equal Employment Opportunity and Hiring of District Residents
Section 13.9.1 For contracts for services in the amount of $300,000 or more, the Design -Builder
shall comply with the First Source Employment Agreement Act of 1984, as amended, D.C.
Official Code § 2 -219.01 et seq. (“First Source Act”). The forms for completion of the Equal
Employment Opportunity Information Report are incorporated herein as Exhibit E.
Section 13.9.2 The Design-Builder shall enter into and maintain during the term of the Contract,
a First Source Employment Agreement (Exhibit Q) with the District of Columbia Department of
Employment Services (DOES), in which the Design -Builder shall agree that: (a) The first source
for finding employees to fill all jobs created in order to perform the Contract shall be the First
Source Register; and (b) The first source for finding employees to fill any vacancy occurring in
all jobs covered by the Employment Agreement shall be the First Source Register.
Section 13.9.3 If applicable, the Design-Builder shall comply with subchapter X of Chapter II of
Title 2, and all successor acts thereto, including by not limited to the Workforce Intermediary
Establishment and Reform of First Source Amendment Act of 2011, and the rules and regulations
promulgated thereunder, including, but not limited to the following requirements:
a. At least twenty percent (20%) of Journey worker hours by trade shall be performed by
District residents;
b. At least sixty percent (60%) of apprentice hours by trade shall be performed by District
residents;
c. At least fifty-one percent (51%) of the skilled laborer hours by trade shall be performed by
District residents; and
d. At least seventy percent (70%) of common laborer hours shall be performed by District
residents.
Section 13.9.4 The Design -Builder shall not begin the performance of the Contract until its
Employment Agreement has been accepted by DOES. Once approved, the Employment
Agreement shall not be amended except with the approval of DOES.
Section 13.9.5 The Design-Builder agrees that at least 51% of the new employees hired to perform
the Contract shall be District residents. The Design -Builder shall ensure that at least fifty -one
percent (51%) of the Design -Builder and every sub -consultants and subcontra ctor’s employees
hired after the effective date of the Agreement, or after such subconsultant or subcontractor enters
into a contract with the Design-Builder, to work on the Project shall be residents of the District of
Columbia. This percentage shall be applied in the aggregate, and not trade by trade.
Section 13.9.6 The Contractor’s hiring and reporting requirements under the First Source Act and
any rules promulgated thereunder shall continue for the term of the Contract.
Section 13.9.7 The CO may impose penalties, including monetary fines of 5% of the total amount
of the direct and indirect labor costs of the Contract, for a willful breach of the Employment
Agreement, failure to submit the required hiring compliance reports, or delibera te submission of
84
falsified data.
Section 13.9.8 If the Design-Builder does not receive a good faith waiver, the CO may also impose
an additional penalty equal to 1/8 of 1% of the total amount of the direct and indirect labor costs
of the Contract for each percentage by which the Design -Builder fails to meet its hiring
requirements.
Section 13.9.9 Any contractor which violates, more than once within a 10 -year timeframe, the
hiring or reporting requirements of the First Source Act shall be referred for debarment for not
more than five (5) years.
Section 13.9.10 The Design-Builder may appeal any decision of the CO pursuant to this clause to
the DC Contract Appeals Board located at 441 4th Street, NW, Suite 350N, Washington, DC
20001.
Section 13.9.11 The provisions of the First Source Act do not apply to nonprofit organizations
which employ 50 employees or less.
Section 13.9.12 Construction projects or contracts covered by this Section 4.2.8 of the Contract
shall be subject to the hiring and reporting requirements set forth in this Section until construction
is completed and a final certificate of occupancy has been issued.
Section 13.10 Economic Inclusion Reporting Requirements
Section 13.10.1 Upon execution of the Agreement, the Design-Builder and all its member firms,
if any, and each of its Subcontractors shall submit to the Department a list of current employees
and apprentices that will be assigned to the Agreement, the date they were hired and whether or
not they live in the District of Columbia.
Section 13.10.2 The Design-Builder and its constituent entities shall comply with subchapter X
of Chapter II Title 2, and subchapter II of Chapter 11 of Title 1 of the D.C. Code, and all successor
acts thereto and the rules and regulations promulgated thereunder. The Desi gn-Builder and all
member firms and Subcontractors shall execute a First Source Agreement with the District of
Columbia Department of Employment Services (“DOES”) prior to beginning work at the Project
site.
Section 13.10.3 The Design-Builder shall maintain detailed records relating to the general hiring
of District of Columbia and community residents.
Section 13.10.4 The Design -Builder shall be responsible for: (i) including the provisions of
Section 9.3 in all subcontracts; (ii) collecting the information required in Section 9.3 from its
Subcontractors; and (iii) providing the information collected from its Subcontractors in the reports
required to be submitted by the Design-Builder pursuant to Section 9.3.
Section 13.10.5. Reserved.
Section 13.10.6 Living Wage Act. In addition to the requirements set forth in the First Source
85
Employment Agreement, the Design-Builder shall comply with all applicable provisions of the
Living Wage Act of 2006, Exhibit P, as amended (codified at D.C. Official Code §§ 2 -220.01
et seq.) and its implementing regulations.
Section 13.10.7 Apprenticeship Act . The D.C. Apprenticeship Act of D.C. Law 2 -156, (as
amended, the Act) may apply to these Projects. As applicable, the Design-Builder firms and their
subcontractors selected to perform work on the Projects on a craft-by-craft basis may be required
to comply with the Act. If applicable, all terms and conditions of the D.C. Apprenticeship Council
Rules and Regulations shall be implemented, and the selected Design-Builder firms shall be liable
for any subcontractor non -compliance. Thirty five percent (35%) of all apprentice hours worked
on the Project shall be performed by District residents.
Section 13.11 WAY TO WORK AMENDMENT ACT OF 2006
Section 13.11.1. Except as described in Section 13.14.8 below, the Design-Builder shall comply
with Title I of the Way to Work Amendment Act of 2006, effective June 8, 2006 (D.C. Law 16 -
118, D.C. Official Code §2-220.01 et seq.) (“Living Wage Act of 2006”), for contracts for services
in the amount of $100,000 or more in a 12-month period.
Section 13.11.2 The Design -Builder shall pay its employees and subcontractors who perform
services under the Contract no less than the current living wage.
Section 13.11.3 The Design -Builder shall include in any subcontract for $15,000 or more a
provision requiring the subcontractor to pay its employees who perform services under the
Contract no less than the current living wage rate.
Section 13.11.4 The DOES may adjust the living wage annually and Design-Builder will find the
current living wage rate on its website at www.does.dc.gov.
Section 13.11.5 The Design-Builder shall provide a copy of the Fact Sheet attached within Exhibit
P to each employee and subcontractor who performs services under the Contract. The Design -
Builder shall also post the Notice attached within Exhibit P in a conspicuous place in its place of
business. The Design -Builder shall include in any subcontract for $15,000 or more a provision
requiring the subcontractor to post the Notice in a conspicuous place in its place of business.
Section 13.11.6 The Design-Builder shall maintain its payroll records under the Contract in the
regular course of business for a period of at least three (3) years from the payroll date, and shall
include this requirement in its subcontracts for $15,000 or more under the Contract.
Section 13.11.7 The payment of wages required under the Living Wage Act of 2006 shall be
consistent with and subject to the provisions of D.C. Official Code §32-1301 et seq.
Section 13.11.8 The requirements of the Living Wage Act of 2006 do not apply to:
1. Contracts or other agreements that are subject to higher wage level determinations required
by federal law;
86
2. Existing and future collective bargaining agreements, provided, that the future collective
bargaining agreement results in the employee being paid no less than the established living
wage;
3. Contracts for electricity, telephone, water, sewer or other services provided by a regulated
utility;
4. Contracts for services needed immediately to prevent or respond to a disaster or imminent
threat to public health or safety declared by the Mayor;
5. Contracts or other agreements that provide trainees with additional services including, but
not limited to, case management and job readiness services; provided that the trainees do not
replace employees subject to the Living Wage Act of 2006;
6. An employee under 22 years of age employed during a school vacation period, or enrolled
as a full-time student, as defined by the respective institution, who is in high school or at an
accredited institution of higher education and who works less than 25 h ours per week;
provided that he or she does not replace employees subject to the Living Wage Act of 2006;
7. Tenants or retail establishments that occupy property constructed or improved by receipt of
government assistance from the District of Columbia; provided, that the tenant or retail
establishment did not receive direct government assistance from the District;
8. Employees of nonprofit organizations that employ not more than 50 individuals and qualify
for tax exemption pursuant to section 501(c)(3) of the Internal Revenue Code of 1954,
approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(3);
9. Medicaid provider agreements for direct care services to Medicaid recipients, provided, that
the direct care service is not provided through a home care agency, a community residence
facility, or a group home for mentally retarded persons as those terms are defined in section
2 of the Health-Care and Community Residence Facility, Hospice, and Home Care Licensure
Act of 1983, effective February 24, 1984 (D.C. Law 5-48; D.C. Official Code § 44-501); and
10. Contracts or other agreements between managed care organizations and the Health Care
Safety Net Administration or the Medicaid Assistance Administration to provide health
services.
Section 13.11.9 The Mayor may exempt a contractor from the requirements of the Living Wage
Act of 2006, subject to the approval of the Council, in accordance with the provisions of Section
109 of the Living Wage Act of 2006.
87
Article 14 LIQUIDATED DAMAGES
Section 14.1 Delay in Submission of Deliverables
Subject to the terms set forth in Section 3.1.1.7 Disincentive Fee for Failure to Timely
Provide Deliverables, if the Design-Builder fails to provide any of the deliverables set forth in
Exhibit C, the Design- Builder shall pay to the Department liquidated damages in the amount set
forth in the Project Information Section of this Agreement for each such deliverable that is not
timely submitted.
Section 14.2 Reserved.
Section 14.3 Delay in Substantial Completion.
If the Design-Builder fails to achieve Substantial Completion of the Project by the
Substantial Completion Date, the Parties acknowledge and agree that the actual damage to the
Department for the delay will be impossible to determine, and in lieu thereof, the Design-Builder
shall pay to the Department, as fixed, agreed and liquidated delay damages in the amount set forth in
the Project Information Section of this Agreement per day for each calendar day of delay for failure
to meet the applicable Substantial Completion Date.
The Design-Builder and the Department agree that the liquidated damages set forth in this
Article do not constitute, and shall not be deemed, a penalty but represent a reasonable
approximation of the damages to the Department associated with a delay in the Project. These
damages shall not apply if the delay is the result of force majeure and the Design-Builder otherwise
complies with the provisions set forth in the Standard Contract Provisions. In the event the Design
Builder fails to meet the Substantial Completion Date for more than sixty days, the Design-Builder
consents to a Termination for Default.
Section 14.4 Early Completion.
In the event the Design-Builder achieves Substantial Completion of the Project prior to the
Substantial Completion Date, the Design-Builder shall maintain the completed Project, at its own
expense, until such time that the Department agrees to occupy and use the Project for its intended
use.
88
Article 15 MISCELLANEOUS PROVISIONS
Section 15.1 Ownership and Use of Documents.
The Drawings, Specifications and other documents prepared by the Design-Builder’s
Architect/Engineer and copies thereof furnished to the Design-Builder, are for use solely with respect
to this Project. They are not to be used by the Design Builder, Subcontractors, Sub-subcontractors or
suppliers on other projects, or for additions to this Project outside the scope of the Work, without the
specific written consent of the Department, and the Architect/Engineer. The referenced Drawing,
Specifications and other documents shall become the property of the Department. The District will be
the sole owner of all project drawings, specifications, and other Project Documents, and the Design -
Builder shall provide the District with a complete set of “as -built” within sixty (60) days of final
completion.
Section 15.1.1 Upon receipt of final payment for completed design services, the Design-Builder
hereby irrevocably assigns and transfers to the Department all intellectual property rights, including
copyrights and all other proprietary rights, in and to the Instruments of Service related to the Project.
The Design -Builder shall promptly execute and deliver any documents, including a confirmatory
Intellectual Property Assignment, necessary to perfect the Department’s ownership of such rights;
provided, however, that the Design-Builder’s failure to provide such confirmatory documentation does
not negate the Department’s full ownership of the Instruments of Service.
Section 15.1.2 Instruments of Service shall include all Project documents, drawings, plans,
specifications, models, renderings, surveys, reports, electronic data, and any other tangible or intangible
work product prepared by the Design-Builder or its consultants for the Project.
Section 15.1.3 The Design -Builder shall provide evidence of the transfer of intellectual
property rights, including a fully executed Intellectual Property Assignment, to the Department as a
condition of final payment.
Section 15.2 Assignment.
The Department and Design-Builder respectively bind themselves, their partners,
members, joint venturers, constituent entities, successors, assigns and legal representative to the
other party hereto and to partners, members, joint venturers, constituent entities, successors,
assigns and legal representatives of such other party in respect to covenants, agreements and
obligations contained in the Agreement. Neither party to the Agreement shall assign the Agreement
or its rights and obligations under the Agreement, without written consent of the other party. If either
party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Agreement.
Section 15.3 Buy American Act Provision.
The Design-Builder shall comply with the provisions of the Buy American Act (41 U.S.C. §§ 8301 –
8305), including, but not limited to, the purchase of steel. To the extent that the language in this section
contradicts the language under Article 24 of The Dep artment Standard Contract Provisions for
Construction Contracts and Article 15 (C) of the Department Standard Contract Provisions for
89
Architectural and Engineering Services Contracts (Exhibit J1 and J2) regarding compliance with the
Buy American Act, the language in this section should supersede.
Section 15.3.1 In accordance with the Buy American Act (41 U.S.C. §§ 8301 –8305), 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 Design -
Builder agree s that only domestic construction material will be used by the Design -Builder,
subcontractors, material men and suppliers in the performance of the Agreement, except for non -
domestic material listed in the Agreement.
“Components” as used in this Section, means those articles, materials and supplies incorporated
directly into the end products.
“Domestic end product”, as used in this section, means, (1) an unmanufactured end product mined
or produced in the United States, or (2) an end product manufactured in the United States, if the
cost of its components mined, produced, or manufactured in the United States, exceeds 65 percent
of the cost of all its components. 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.
Components of foreign origin of the same class or kind as the products shall be treated as domestic.
Scrap generated, collected, and prepared for processing in the Unites States is considered domestic.
“End Products”, as used in this Section, means those articles, materials, and supplies to be acquired
for public use under this Contract.
The Design-Builder shall deliver only domestic end products, except those:
1. For use outside the United States;
2. That the District determines are not mined, produced, or manufactured in the United States
in sufficient and reasonably available commercial quantities of a satisfactory quality;
3. For which the District determines that domestic preference would be inconsistent with the
public interest; or
4. For which the District determines the cost to be unreasonable.
Section 15.3.2 Domestic Construction Material. “Construction material” means any article,
material, or supply brought to the construction site for incorporation in the building or work. An
unmanufactured construction material is a “domestic construction material” if it has been mined
or produced in the United States. A manufactured construction material is a “domestic construction
material” if it has been manufactured in the United States and if the cost of its components which
have been mined, produced, or manufactured in the United States exceeds 65 percent of the cost
of all its components. “Component” means any article, material, or supply directly incorporated
in construction material. If the construction material consists wholly or predominantly of iro n or
steel, the iron or steel was produced in the United States; 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 steel constitutes less than 5 percent
of the cost of all the components used in such construction material.
90
Section 15.3.3 Domestic Component. A component shall be considered to have been “mined,
produced, or manufactured in the United States” regardless of its source, in fact, if the article,
material, or supply in which it is incorporated was manufactured in the United States and the
component is of a class or kind determined by the Government to be not mined, produced or
manufactured in the United States in sufficient and reasonably available commercial quantities
and of satisfactory quality.
Section 15.3.4 Foreign Construction Material. “Foreign construction material” means a
construction material other than a domestic construction material.
Section 15.4 Davis-Bacon Act Wage Determination and Title 29 CFR 5.5 Davis Bacon
Provision.
The Design-Builder agrees that the construction work performed under this Agreement
shall be subject to the Davis-Bacon Act (40 U.S.C.A §§ 3141-3148), Exhibit G1 and Title 29
Code of Federal Regulations (“CFR”) part 5.5 Davis Bacon Provision Exhibit G2. The wage
rates applicable to this Project are attached as Exhibit G1 and G2. The Design-Builder further
agrees that it and all of its subcontractors shall comply with the regulations implementing the
Davis-Bacon Act and Title 29 CFR and such regulations are hereby incorporated by reference.
At such time as the Design -Builder is preparing its GMP, the Design -Builder shall include the
current Davis-Bacon wage rates in its GMP.
Section 15.5 The Quick Payment Clause
Section 15.5.1 Interest Penalties to Contractors
Section 15.5.1.1 The District will pay interest penalties on amounts due to the Design -
Builder under the Quick Payment Act, D.C. Official Code §2 -221.01 et seq., as amended,
for the period beginning on the day after the required payment date and ending on the date
on which payment of the amount is made. Interest shall be calculated at the rate of 1% per
month. No interest penalty shall be paid if payment for the completed delivery of the item
of property or service is made on or before the required payment date. The required
payment date shall be:
a. The date on which payment is due under the terms of the Contract;
b. Not later than 7 calendar days, excluding legal holidays, after the date of delivery of
meat or meat food products;
c. Not later than 10 calendar days, excluding legal holidays, after the date of delivery of
a perishable agricultural commodity; or
d. 30 calendar days, excluding legal holidays, after receipt of a proper invoice for the
amount of the payment due, if a specific date on which payment is due is not established
by contract;
91
Section 15.5.1.2 Any amount of an interest penalty which remains unpaid at the end of any
30-day period shall be added to the principal amount of the debt and thereafter interest
penalties shall accrue on the added amount.
Section 15.5.1.3 No interest penalty shall be due to the Design -Builder if payment for the
completed delivery of goods or services is made on or after:
a. 3rd day after the required payment date for meat or a meat food product;
b. 5th day after the required payment date for an agricultural commodity; or
c. 15th day after any other required payment date in the case of any other item.
Section 15.5.2 Payments to Subcontractors
Section 15.5.2.1 The Design-Builder must take one of the following actions within seven (7)
days of receipt of any amount paid to the Design-Builder by the District for work performed by
any subcontractor under this contract:
a. Pay the subcontractor for the proportionate share of the total payment received from the
District that is attributable to the subcontractor for work performed under the Contract;
or
b. Notify the Contracting Officer and the subcontractor, in writing, of the Design-Builder’s
intention to withhold all or part of the subcontractor’s payment and state the reason for
the nonpayment.
Section 15.5.2.2 The Design-Builder must pay any subcontractor or supplier interest penalties
on amounts due to the subcontractor or supplier beginning on the day after the payment is due
and ending on the date on which the payment is made. Interest shall be calculated at the rate of
1.5% per month. No interest penalty shall be paid on the following if payment for the completed
delivery of the item of property or service is made on or before:
a. The 3rd day after the required payment date for meat or a meat product;
b. The 5th day after the required payment date for an agricultural commodity; or
c. The 15th day after the required payment date for any other item.
Section 15.5.2.3 Any amount of an interest penalty that remains unpaid by the Design-Builder
at the end of any 30 -day period shall be added to the principal amount of the debt to the
subcontractor and thereafter interest penalties shall accrue on the added amount.
Section 15.5.2.4 A dispute between the Design -Builder and subcontractor relating to the
amounts or entitlement of a subcontractor to a payment or a late payment interest penalty under
the Quick Payment Act does not constitute a dispute to which the District of Columbia is a
party. The District may not be interpleaded in any judicial or administrative proceeding
involving such a dispute.
Section 15.5.3 Subcontractor Quick Payment Clause Flow-Down Requirements
92
Section 15.5.3.1 The Design-Builder shall include in each subcontract under this Contract a
provision requiring the subcontractor to include in its contract with any lower-tier subcontractor
or supplier the payment and interest clauses required under paragraphs (1) and (2) of D.C.
Official Code §2-221.02(d).
Section 15.5.4 Requirements for Change Order Payments
Section 15.5.4.1 The Department and the Design -Builder are prohibited from requiring the a
Prime Contractor or a subcontractor to undertake any work that is determined to be beyond the
original scope of the Prime Contractor's or a subcontractor's contract or subcontract, i ncluding
work under a District-issued change order, when the additional work increases the contract price
beyond the not-to-exceed price or negotiated maximum price of the underlying contract, unless
the Contracting Officer:
a. Agrees with the Prime Contractor and, if applicable, the subcontractor on a price for the
additional work;
b. Obtains a certification from the Chief Financial Officer that there are sufficient funds to
compensate the Prime Contractor and, if applicable, the subcontractor for the additional
work;
c. Has made a written, binding commitment with the Prime Contractor to pay for the
additional work within 30 days after the Prime Contractor submits a proper invoice for
the additional work to the CO; and
d. Gives written notice of the funding certification from the Chief Financial Officer to the
Prime Contractor;
Section 15.5.4.2 The Design -Builder is required to include in its subcontracts a clause that
requires the Prime Contractor to:
a. Within 5 business days of receipt of the notice required under subparagraph (A)(iv) of
this paragraph, provide the subcontractor with notice of the approved amount to be paid
to the subcontractor based on the portion of the additional Work to be completed by the
subcontractor;
b. Pay the subcontractor any undisputed amount to which the subcontractor is entitled for
any additional work within 10 days of receipt of payment for the additional Work from
the District; and
c. If the Prime Contractor withholds payment from a subcontractor, notify the
subcontractor in writing and state the reason why payment is being withheld and provide
a copy of the notice to the CO.
Section 15.5.4.3 The Department, Design -Builder, Design-Builder Architects, or a
subcontractor are prohibited from declaring another party to the contract to be in default or
assessing, claiming, or pursuing damages for delays in the completion of the construction due
to the inability of the parties to agree on a price for the additional work.
93
Section 15.5.4.4 Authorized Changes By The Contracting Officer
a. The CO is the only person authorized to approve changes in any of the requirements of
this Contract.
b. The Design-Builder shall not comply with any order, directive, or request that changes
or modifies the requirements of this Contract unless issued in writing and signed by the
CO.
c. In the event the Design -Builder effects any change at the instruction or request of any
person other than the CO, the change will be considered to have been made without
authority and no adjustment will be made in the Contract price to cover any cost increase
incurred as a result thereof.
Section 15.6 Contract Work Hours And Safety Standards Act Provision.
The Design-Builder agrees that the applicable work performed under this Agreement
shall be subject to the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333).
Section 15.7 False Claims Act.
Design-Builder shall be governed by all laws and regulations prohibiting false or
fraudulent statements and claims made to DC government, including the prescriptions set forth in
District of Columbia Code §22-2514 and §§2-381.01 et seq. In the event that it is discovered that the
Design-Builder has made a false, fraudulent or unsupported statement or claim to the Department,
the Department may terminate this Agreement without liability.
Section 15.8 Interpretation of Contract and Order of Precedence.
All of the documents comprising the Agreement should be read as complementary, so
that what is called for by one is called for by all. Ambiguities shall be construed in favor of a broader
scope of Work for the Design-Builder, as the intent of the Agreement is, with specific identified
exceptions, to require the Design-Builder to assume entire responsibility for construction of the
Project. If there is any inconsistency among the documents comprising the Agreement, the order of
precedence 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 Standard Contract Provisions (Construction Services), as amended,
and any missing term in this Agreement shall be addressed in accordance with the Standard
Contract Provisions; and
3. The Construction Documents released or approved by the Department.
Section 15.9 Independent Contractor.
The Design-Builder and the Design-Builder’s employees: (1) shall perform the services
specified herein as independent contractors, not as employees or agent of the District, or joint venture
94
or partner with the District; (2) shall be responsible for their own management and administration of
the work required and bear sole responsibility for complying with any and all technical, schedule,
financial requirements or constraints attendant to the performance of this Agreement; (3) shall be free
from supervision or control by any government employee with respect to the manner or method of
performance of the service specified; but (4) shall, pursuant to the government’s right and obligation
to inspect, accept or reject work, comply with such general direction of the CO, or the duly authorized
representative of the CO as is necessary to ensure accomplishment of the Agreement objectives. The
Design-Builder shall have exclusive authority to manage, direct, and control the work, and shall be
responsible for all means, methods, techniques, sequences, and procedures, as well as for Project
safety.
Section 15.10 No Third-Party Beneficiary Rights.
Nothing in this Agreement shall be construed as creating third-party beneficiary rights
in any person or entity, except as otherwise expressly provided in this Agreement.
Section 15.11 Media Releases.
Neither the Design-Builder, its employees, agents or Subcontractors or material suppliers
shall make any press release or similar media release related to the Project unless such press release
have been discussed with the Department prior to its issuance.
Section 15.12 Construction.
This Agreement shall be construed fairly as to all Parties and not in favor of or against
any party, regardless of which party prepared the Agreement.
Section 15.13 Notices.
All notices or communications required or permitted under the Agreement shall be in
writing and shall be hand delivered or sent by telecopier or by recognized overnight carrier to the
intended recipient at the address stated below, or to such other address as the recipient may have
designated in writing. Any such notice or communication shall be deemed delivered as follows: if
hand delivered, on the day so delivered, if sent by telecopier, on confirmation of successful
transmission, and if sent by recognized overnight carrier, the next business day.
If to the Department:
Xavier Beltran
Interim Chief Procurement Officer
Department of General Services
3924 Minnesota Ave, NE, 6th Floor
Washington, DC 20019
If to the Design-Builder:
Gabe Oliver
Partner & Senior Vice
GCS, Inc. dba GCS-SIGAL
95
1140 3rd St NE Suite 320
Washington, DC 20002
This Section shall be read as imposing minimum requirements for distribution of required contractual
notices, and not as displacing distribution requirements with respect to design documents, construction
submittals, periodic reports, and other documents.
Section 15.14 Reserved.
Section 15.15 Survival.
All agreements warranties, and representations of the Design-Builder contained in the
Agreement or in any certificate or Project document furnished pursuant to the Agreement shall
survive termination or expiration of the Agreement.
Section 15.16 No Waiver.
If the Department waives any power, right, or remedy arising from the Agreement or
any applicable law, the waiver shall not be deemed to be a waiver of the power, right, or remedy
on the later recurrence of any similar events. No act, delay, or course of conduct by the Department
shall be deemed to constitute the Department's waiver, which may be effected only by an express
written waiver signed by the Department.
Section 15.17 Remedies Cumulative.
Unless specifically provided to the contrary in the Agreement, all remedies set forth in
the Agreement are cumulative and not exclusive of any other remedy the Department may have,
including, without limitation, at law or in equity. The Department's rights and remedies will be
exercised at its sole discretion, and shall not be regarded as conferring any obligation on the
Department's to exercise those rights or remedies for the benefit of the Design-Builder or any other
person or entity.
Section 15.18 Headings/Captions.
The headings or captions used in this Agreement or its table of contents are for
convenience only and shall not be used in interpreting the Agreement.
Section 15.19 Entire Agreement; Modification.
The Agreement supersedes all contemporaneous or prior negotiations, representations,
course of dealing, or agreements, either written or oral. No modifications to the Agreement shall
be effective against the Department unless made in writing signed by both the Department and the
Design-Builder, unless otherwise expressly provided to the contrary in the Agreement.
Notwithstanding the foregoing, nothing herein shall be construed to limit the Department’s ability
to unilaterally modify the Agreement.
Section 15.20 Severability.
In the event any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, and in lieu of each such
96
invalid, illegal or unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such invalid, illegal or unenforceable provision as may
be possible and be valid, legal and enforceable; each part of this Agreement is intended to be
severable.
Section 15.21 Anti-Deficiency Act.
The obligations and responsibilities of the Department under the terms of the Agreement,
or any subsequent agreement entered into pursuant to this Agreement or referenced herein (to which
the Department is a party), are and shall remain subject to the prov isions of: (i) the federal Anti -
Deficiency Act, 31 U.S.C. §§ 1341, 1342, 1349 -1351, 1511-1519 (2004) (the “Federal ADA”), and
D.C. Official Code §§ 1-206.03(e) and 47-105 (2001); (ii) the District of Columbia Anti-Deficiency
Act, D.C. Official Code §§ 47 -355.01 – 355.08 (2004 Supp.)(the “D.C. ADA” and (i) and (ii)
collectively, as amended from time to time, the “Anti- Deficiency Acts”); and (iii) Section 446 of the
District of Columbia Home Rule Act, D.C. Official Code § 1 -204.46 (2001). Pursuant to the Ant i-
Deficiency Acts, nothing in this Agreement shall create an obligation of the Department in
anticipation of an appropriation by Congress for such purpose, and the Department’s legal liability
for payments and other charges under this Agreement shall not a rise or obtain in advance of the
lawful availability of appropriated funds for the applicable fiscal year as approved by Congress. IN
ACCORDANCE WITH § 446 OF THE HOME RULE ACT, D.C. CODE § 1 -204.46, NO
DISTRICT OF COLUMBIA OFFICIAL IS AUTHORIZED TO OBLIGATE OR EXPEND
ANY AMOUNT UNDER THE AGREEMENT OR CONTRACT DOCUMENTS UNLESS
SUCH AMOUNT HAS BEEN APPROVED, IS LAWFULLY AVAILABLE, AND
APPROPRIATED BY ACT OF CONGRESS.
Section 15.21.1 The Department agrees to exercise all lawful authority available to it to
satisfy the financial obligations of the Department that may arise under this Agreement. During the
term of this Agreement, the Mayor of the District of Columbia or other appropriate official shall, for
each fiscal period, include in the budget application submitted to the Council of the District of
Columbia the amount necessary to fund the Department’s known potential financial obligations
under this Agreement for such fiscal period . In the event that a request for such appropriations is
excluded from the budget approved by the Council and submitted to Congress by the President for
the applicable fiscal year or if no appropriation is made by Congress to pay any amounts due under
this Agreement for any period after the fiscal year for which appropriations have been made, and in
the event appropriated funds for such purposes are not otherwise lawfully available, the Department
will not be liable to make any payment under this Agreement upon the expiration of any then-existing
appropriation, the Department shall promptly notify the Contractor and this Agreement shall
immediately terminate upon the expiration of any then-existing appropriation.
Section 15.21.2 Notwithstanding the foregoing, no officer, employee, director, member
or other natural person or agent of the District or Department shall have any personal liability in
connection with the breach of the provisions of this Section or in the event of non -payment by the
Department under this Agreement.
Section 15.21.3 This Agreement shall not constitute an indebtedness of the District and/or
the Department nor shall it constitute an obligation for which the Department is obligated to levy or
pledge any form of taxation or for which the District has levied or pledged any form of taxation. No
97
District of Columbia Official or employee is authorized to obligate or expend any amount under this
Agreement unless such amount has been appropriated by Act of Congress and is lawfully available.
Section 15.22 Time.
Time, if stated in a number of days, will be calendar days and thus include Saturdays,
Sundays, and holidays, unless otherwise stated herein.
Section 15.23 Intentionally Removed.
Section 15.24 Americans With Disabilities Act of 1990 (“ADA”).
During the performance of this Contract, the Design -Builder and any of its Subcontractors shall
comply with the ADA. The ADA makes it unlawful to discriminate in employment against a
qualified individual with a disability. See 42 U.S.C. §12101 et seq
Section 15.25 CAMPAIGN FINANCE REFORM ACT
Prior to the execution of this Contract, the Design -Builder shall complete and submit to the
Department a completed Campaign Finance Reform Act Self-Certification Form, Exhibit S, pursuant
to D.C. Official Code § 1-1161.01.
Section 15.26 Contracts in Excess of One Million Dollars.
Any contract in excess of $l,000,000 shall not be binding or give rise to any claim or demand
against the District until approved by the Council of the District of Columbia and signed by the
Contracting Officer.
Section 15.27 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 offered or given by the
Design-Builder, or any agent or representative of the Design -Builder, to any official, employee or
agent of the Department or the District with a view toward securing the Agreement or any other
contract or securing favorable treatment with respect to the awarding or amending, or the making of
any determinations with respect to the performance of the Agreement, the Department may, by written
notice to the Design -Builder, terminate the right of the Design -Builder to proceed under the
Agreement and may pursue such other rights and remedies provided by law and under the Agreement.
Section 15.27.1 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 Design -Builder as it could pursue in the event of a
breach of the Agreement by the Design-Builder; and
b. as a penalty in addition to any other damages to which it may be entitled by law, to exemplary
damages in an amount (as determined by the Department) which shall be not less than ten times
the costs incurred by the Design-Builder in providing any such gratuities.
98
Section 15.27.2 No member of, nor delegate to Congress, Mayor or City Council Member, nor the
Department nor employee of the District or employee of the Department shall be admitted to any share
or part of the Agreement or to any benefit that may arise therefrom, and all agreements entered into by
the CO of the Department in which he or she be personally interested as well as all agreements made
by the Department in which the Mayor or City Council Member or employee of the District shall be
personally interested shall be v oid and no payments shall be made on any such contracts by the
Department; but this provision shall not be construed or extend to the agreement if the share of or
benefit to the member of, or delegate to Congress, Mayor or City Council Member, or employee of the
District is de minimis.
Section 15.2 8 Ethical Standards for the Department's Employees And Former
Employees.
The Department expects the Design -Builder to observe the highest ethical standards and to
comply with all applicable laws, rules, and regulations governing ethical conduct or conflicts of
interest. Neither the Design-Builder, nor any person associated with the Design-Builder, shall provide
(or seek reimbursement for) any gift, gratuity, favor, entertainment, loan, or other thing of value to
any employee of the District or the Department not in conformity with applicable law, rules or
regulations. The Design -Builder shall not engage the services of any person or persons in the
employment of the Department or the District for any work required, contemplated, or performed
under the Agreement. The Design -Builder may not assign to any former employee or District
employee or agent who has joined the Design -Builder’s firm any matter on which the former
employee, while employed by the Department, had material or substantial involvement in the matter.
The Design-Builder may request a waiver to permit the assignment of such matters to former personnel
on a case -by-case basis. The Design -Builder shall include in every subcontract a provision
substantially similar to this section so that such provisions shall be binding upon each Design-Builder
or vendor.
Section 15.29 Non-Discrimination in Employment Provisions.
Section 15.29.1 District of Columbia Human Rights Act
a. The Design-Builder shall not discriminate in any manner against any employee or applicant for
employment that would constitute a violation of the District of Columbia Human Rights Act,
effective December 13, 1977, as amended (D.C. Law 2-38; D.C. Official Code § 2-1401.01 et
seq.) (“Act”, as used in this clause). The Design -Builder shall include a similar clause in all
subcontracts, except subcontracts for standard commercial supplies or raw materials. In
addition, the Design-Builder agrees, and any subcontractor shall agree, to post in conspicuous
places, available to employees and applicants for employment, a notice setting forth the
provisions of this non-discrimination clause as provided in Section 251 of the Act.
b. Pursuant to Mayor’s Order 85 -85, (6/10/85), Mayor’s Order 2002 -175 (10/23/02), Mayor’s
Order 2011-155 (9/9/11) and the rules of the Office of Human Rights, Chapter 11 of Title 4 of
the D.C. Municipal Regulations, the following clauses apply to the Contract:
1. The Design -Builder shall not discriminate against any employee or applicant for
employment because of race, color, religion, national origin, sex, age, marital status,
personal appearance, sexual orientation, family responsibilities, matriculation, political
affiliation, or physical handicap.
99
2. The Design -Builder agrees to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to their
race, color, religion, national origin, sex, age, marital status, personal appearance,
sexual orientation, family responsibilities, matriculation, political affiliation, or
physical handicap. The affirmative action shall include, but not be limited to, the
following:
i. Employment, upgrading, or transfer;
ii. Recruitment or recruitment advertising;
iii. Demotion, layoff, or termination;
iv. Rates of pay, or other forms of compensation; and
v. Selection for training and apprenticeship.
3. Unless otherwise permitted by law and directed by the Department, the Design-Builder
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the Department setting forth the provisions
paragraphs 1 and 2 of Section 15.2 9.1(b) of this Agreement, concerning non -
discrimination and affirmative action.
4. The Design-Builder shall, in all solicitations or advertisements for employees placed by
or on behalf of the Design -Builder, state that all qualified applicants will receive
consideration for employment pursuant to the non-discrimination requirements set forth
in Section 15.29.3.
5. The Design-Builder agrees to send to each labor union or representative of workers with
which it has a collective bargaining agreement, or other contract or understanding, a
notice to be provided by the Department, advising each labor union or workers'
representative of the Design -Builder’s commitments under this Section 15.29.1, and
shall post copies of the notice in conspicuous places available to employees and
applicants for employment.
6. The Design-Builder agrees to permit access by the Department to all books, records and
accounts pertaining to its employment practices for purposes of investigation to
ascertain compliance with this Section 15.2 9.1, and to require under terms of any
Subcontractor agreement each Subcontractor to permit access of the Subcontractors,
books, records, and accounts for such purposes.
7. The Design-Builder shall include in every subcontract this Section 15.29.1 so that such
provisions shall be binding upon each subcontractor or vendor.
8. The Design-Builder shall take such action with respect to any subcontract as the CO
may direct as a means of enforcing these provisions, including sanctions for
noncompliance; provided, however, that in the event the Design -Builder becomes
involved in, or is threatened with, litigation with a Subcontractor or vendor as a result
of such direction by the Department, the Design -Builder may request the District to
enter into such litigation to protect the interest of the District.
Section 15.29.2 Pregnant Workers Fairness
100
a. The Design-Builder shall comply with the Protecting Pregnant Workers Fairness Act of 2016,
D.C. Official Code § 32-1231.01 et seq. (PPWF Act).
b. The Design-Builder shall not:
1. Refuse to make reasonable accommodations to the known limitations related to
pregnancy, childbirth, related medical conditions, or breastfeeding for an employee,
unless the Design -Builder can demonstrate that the accommodation would impose an
undue hardship;
2. Take an adverse action against an employee who requests or uses a reasonable
accommodation in regard to the employee's conditions or privileges of employment,
including failing to reinstate the employee when the need for reasonable
accommodations ceases to the employee's original job or to an equivalent position with
equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employee, or a job applicant, if the denial is based
on the need of the employer to make reasonable accommodations to the known
limitations related to pregnancy, childbirth, related medical conditions, or
breastfeeding;
4. Require an employee affected by pregnancy, childbirth, related medical conditions, or
breastfeeding to accept an accommodation that the employee chooses not to accept if
the employee does not have a known limitation related to pregnancy, childbirth, related
medical conditions, or breastfeeding or the accommodation is not necessary for the
employee to perform her duties;
5. Require an employee to take leave if a reasonable accommodation can be provided; or
6. Take adverse action against an employee who has been absent from work as a result of
a pregnancy-related condition, including a pre-birth complication.
c. The Design-Builder shall post and maintain in a conspicuous place a notice of rights in both
English and Spanish and provide written notice of an employee's right to a needed reasonable
accommodation related to pregnancy, childbirth, related medical con ditions, or breastfeeding
pursuant to the PPWF Act to:
1. New employees at the commencement of employment;
2. Existing employees; and
3. An employee who notifies the employer of her pregnancy, or other condition covered
by the PPWF Act, within 10 days of the notification.
d. The Design-Builder shall provide an accurate written translation of the notice of rights to any
non-English or non-Spanish speaking employee.
e. Violations of the PPWF Act shall be subject to civil penalties as described in the PPWF Act.
101
Section 15.29.3 UNEMPLOYED ANTI-DISCRIMINATION
a. The Design-Builder shall comply with the Unemployed Anti-Discrimination Act of 2012, D.C.
Official Code § 32 -1361 et seq. (“Anti- Discrimination Act”).
b. The Design-Builder shall not:
1. Fail or refuse to consider for employment, or fail or refuse to hire, an individual as an
employee because of the individual's status as unemployed; or
2. Publish, in print, on the Internet, or in any other medium, an advertisement or
announcement for any vacancy in a job for employment that includes:
i. Any provision stating or indicating that an individual's status as unemployed
disqualifies the individual for the job; or
ii. Any provision stating or indicating that an employment agency will not consider
or hire an individual for employment based on that individual's status as
unemployed.
c. Violations of the Unemployed Anti -Discrimination Act shall be subject to civil penalties as
described in the Anti- Discrimination Act.
Section 15.30 ASSIGNMENT OF CONTRACT PAYMENTS
a. Subject to Section 15.30, in accordance with Title 27 DCMR Section 3250, the Design-Builder
may assign due or to become due as a result of the performance of this Design -Builder to a
bank, trust company, or other financing institution funds.
b. Any assignment shall cover all unpaid amounts payable under this Agreement and shall not be
made to more than one party.
c. Notwithstanding an assignment of Contract payments, the Design-Builder, not the assignee, is
required to prepare invoices. Where such an assignment has been made, the original copy of
the invoice must refer to the assignment and must show that payment of the invoice is to be
made directly to the assignee as follows:
“Pursuant to the instrument of assignment dated ___________, make payment of this invoice to (name
and address of assignee).”
Section 15.31 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 available for inspection and copying any record produced or collected
pursuant to a District contract with a private contractor to perform a public function, to the same extent
as if the record were maintained by the agency on whose behalf the contract is made. If the Design -
Builder receives a request for such information, the Design-Builder shall immediately send the request
to the PM de signated in Section 1.3 of this Agreement, who will provide the request to the FOIA
Officer for the agency with programmatic responsibility in accordance with the D.C. Freedom of
102
Information Act. If the agency with programmatic responsibility receives a request for a record
maintained by the Design-Builder pursuant to the Contract, the PM will forward a copy to the Design-
Builder. In either event, the Design-Builder is required by law to provide all responsive records to the
PM within the timeframe designated by the PM. The FOIA Officer for the agency with programmatic
responsibility will determine the releasability of the records. The District will reimburse the Design-
Builder for the costs of searching and copying the records in accordance with D.C. Official Code §2-
532 and Chapter 4 of Title 1 of the D.C. Municipal Regulations.
Section 15. 32. Equal Employment Opportunity (“EEO”)
Each Offeror shall submit an EEO policy form substantially in the form of Exhibit E.
Section 15.33 DGS Turn Over/Close Out Manual
Deliverables shall include those outlined in Exhibit T.
Section 15.34 NONPROFIT FAIR COMPENSATION ACT OF 2020, D.C. Code § 2-
222.01 et seq
Section 15.34.1 Nonprofit organizations, as defined in the Act, shall include in their rates the indirect
costs incurred in the provision of goods or performance of services under this contract pursuant to the
nonprofit organization's unexpired Negotiated Indirect Cost Rate Agreement (NICRA). If a nonprofit
organization does not have an unexpired NICRA, the nonprofit organization m ay elect to instead
include in its rates its indirect costs:
1. As calculated using a de minimis rate of 10% of all direct costs under this contract;
2. By negotiating a new percentage indirect cost rate with the awarding agency;
3. As calculated with the same percentage indirect cost rate as the nonprofit organization
negotiated with any District agency within the past 2 years; however, a nonprofit organization
may request to renegotiate indirect costs rates in accordance with Section 15.34.2; 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 Unifor m Guidance, and
certified in writing by the certified public accountant.
Section 15.34.2 If this contract is funded by a federal agency, indirect costs shall be consistent with
the requirements for pass-through entities in 2 C.F.R. § 200.331, or any successor regulations.
Section 15.34.3 The Contractor shall pay its subcontractors which are nonprofit organizations the same
indirect cost rates as the nonprofit organization subcontractors would have received as a prime
contractor.
Section 15.35 Release of Final Liens And Claims
Each Application for Payment shall be accompanied by written waivers of the right to file a
mechanic’s lien and all other claims, in a form substantially similar to Attachment K for the Design-
Builder and all Subcontractors and material suppliers at all tiers who have supplied labor or material
or both for which payment is requested, subject only to the receipt of payment. If the Department so
requests, the Design -Builder shall also submit unconditional waivers of liens for itself and all
Subcontractors and material suppliers at all tiers with respect to Work or materials or equipment for
which payment has been previously made, and additional forms of waiver acknowledging receipt of
103
final payment under the Agreement and providing final release of such liens.
104
Article 16 TERMINATION OR SUSPENSION
Section 16.1 All terminations or suspensions arising out of or under this Agreement shall be
in accordance with the terms of the Standard Contract Provisions (Construction Contracts and
Architectural/Engineering Services Contracts).
Section 16.2 Failure to Agree Upon GMP.
The Department shall have the right to terminate this Agreement in the event that the
Department and the Design-Builder are unable to agree upon a GMP for the Project and the
Department shall have the right, but not the obligation, to assume any of the Design-Builder’s trade
subcontracts upon such terms and conditions as requested by the Department. The Department’s
decision to terminate under this Section shall be made in the Department’s sole and absolute
judgment and shall not be subject to review by any reviewing body, including, but not limited to,
arbitrators appointed under this Agreement or any court of competent jurisdiction.
Section 16.3 Termination for Default.
The Department may terminate the Agreement for default if the Design-Builder fails
to perform any of its duties or obligations under the Agreement. In particular, but without
limitation, the Department may terminate the Agreement if:
1. The Design-Builder fails to perform the Work diligently, in accordance with the
Project Schedule or to make such progress in the Work as the Department
reasonably believes is necessary to complete the Project within the time required
by the Agreement; or
2. The Design-Builder fails to perform the Work in a good and workmanlike manner
or to correct defects in the Work promptly upon notice by the Department; or
3.
The Department reasonably determines that the Design-Builder has abandoned the
Work, or has failed to pay laborers, mechanics, materialmen, Subcontractors or
suppliers when payment is due; or
4. The Design- Builder becomes insolvent, makes an assignment for the benefit of
creditors, files a voluntary petition under any chapter of the Bankruptcy Code or
has an involuntary petition filed against it under any chapter of the Bankruptcy
Code, or the Design Builder has a receiver appointed, or files for dissolution or
otherwise is dissolved; or
5. The Design-Builder fails to pay its debts in a timely manner or becomes insolvent,
the Department reasonably determines that the Design-Builder does not have the
financial ability to carry out its obligations under the Agreement and the Design
Builder fails to give the Department prompt and reasonable assurances of its ability
to perform.
Section 16.3.1 The Department shall provide the Design-Builder with
written notice of its intent to terminate the Agreement, under this Section
105
16.2, seven (7) calendar days before actually putting the termination into
effect. If the Design-Builder has begun its corrective action and has made
progress satisfactory to the Department within the seven days, the Department
may so notify the Design-Builder and the termination will not take effect.
Otherwise, the termination shall take effect after seven days without further
notice or opportunity to cure.
Section 16.3.2 If the Department terminates the Agreement for default, the
Department will have the right to take over the Work, to accept assignment
of some or all Subcontracts or agreements with material suppliers, to take
possession of the Project, to take and use all tools, equipment and supplies
then being used in connection with the Work, and to finish the Project by
whatever method it deems expedient, including accepting assignment of all
outstanding Subcontracts and Supply Agreements.
Section 16.4 Termination for Convenience.
The Department may, upon seven (7) calendar days written notice to the Design-
Builder, terminate the Contract in whole or specified part, for its convenience, for any reason
whether the Design-Builder is in breach of contract or not. 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 16.5 Continued Responsibility After Termination.
If the Design-Builder is terminated, for default, for Convenience or otherwise, the
Design-Builder shall remain responsible for defects or non-conformities in all Work performed
to the date of the termination.
106
Article 17 OTHER CONDITIONS AND SERVICES
This Agreement and the rights and obligations of the Department and Design-Builder herein
are subject to the approval of the Council for the District of Columbia.
107
Article 18 CHANGES IN THE WORK
Section 18.1 Changes Authorized.
In accordance with the Standard Contract Provisions (Construction Contract), the
Department may, without invalidating the Agreement, and without notice to or approval of any
surety, order changes in the Work, including additions, deletions or modifications. Any such
change must be conveyed by the Department to the Design Builder via written Change Directive
or Change Order.
Section 18.2 Executed Change Directive/Change Order Required.
Only a written Change Directive or Change Order, executed by the Department, may
make changes to the Agreement. In particular, but without limitation, a written Change Directive
or Change Order executed by the Department is the only means by which changes may be made
to the Substantial or Final Completion Dates, the Design-Build Fee, or the Guaranteed Maximum
Price.
Section 18.3 Department-Initiated Changes
1. If the Department wishes to make a change in the Work or to accelerate the Work,
it will execute and issue to the Design-Builder a written Change Directive, either
directing the Design-Builder to proceed at once with the changed Work or directing
it to not to proceed, but to inform the Department, in writing, of the amount, if any,
by which the Design-Builder believes that Substantial or Final Completion Dates
and/or the Guaranteed Maximum Price should be adjusted to take the Change Order
or Change Directive into account.
2. Within ten (10) days of receiving a Change Directive, the Design-Builder shall
provide the Department with a written statement of all changes in the Agreement,
including, without limitation, any changes to the Substantial or Final Completion
Dates or the Guaranteed Maximum Price to which it believes it is entitled as a result
of the Change Directive. If additional time is sought, a schedule analysis supporting
the requested extension should be included. The schedule analysis should include
a written narrative explanation. If a change in the Guaranteed Maximum Price is
sought (or if the Department has requested a deduct change), the statement should
include a breakdown, by line item, of the estimated cost changes attributable to
the proposed change. The Department may request, and the Design-Builder
shall provide, further cost breakdowns, clarifications, documentation or back-
up if the Department reasonably believes such additional information is
needed to understand and evaluate the request. The additional information
required may include cost and pricing data in accordance with the Department’s
regulations. Any requested adjustment to the Guaranteed Maximum Price shall
be limited to increased Cost of the Work due to the Change Directive. The Design-
Builder is not entitled to any markup on any kind of Change Orders except
as authorized in Section 18.8, and if so authorized, any mark-up shall be in
accordance with Section 18.11.
108
3. If the Department has not yet directed the Design-Builder to proceed with the
change described by a Change Directive, the Department may rescind it. If the
Department wishes to proceed, or has already directed the Design-Builder
to proceed, the Design-Builder shall immediately proceed with the changed
Work and, the Department and the Design-Builder shall use their good faith best
efforts to reach an agreement upon the modifications to the Substantial or
Final Completion Dates, and/or the Guaranteed Maximum Price that are justified
by the Change Directive. If the Department and the Design-Builder reach
agreement, the agreement shall be set forth in a Change Order and the Design-
Builder shall also execute it, at which point it will become binding on both Parties
4. If the parties fail to reach an agreement within sixty (60) days after the Department
receives the Design-Builder’s detailed statement pursuant to Section 18.3.2, and
such other documentation as the Department may request, the Design-Builder may
assert a claim in accordance with the Agreement. In such a case, and subject to
adjustment via the claims and disputes process, the Department shall unilaterally
grant the Design-Builder such adjustments, if any, to the Substantial or Final
Completion Dates, the Guaranteed Maximum Price, and/or the Preconstruction
or Design-Build Fee as the Department has judged to be appropriate.
Section 18.4 Notice of Change Event.
The Design-Builder must give the Department written notice of any Change Event
within ten (10) calendar days of the date on which the Design Builder knew, or reasonably should
have known, of the Change Event. To the extent available, the notice must state the nature of the
Change Event and describe, generally, all changes in the Agreement to which the Design-Builder
believes it is entitled. Such notice is an express condition precedent to any claim or request for
adjustment to the Substantial or Final Completion Dates, or the Guaranteed Maximum Price arising
from the Change Event and, if the notice is not given within the required time, the Design-Builder
will have waived the right to any adjustment to the Substantial or Final Completion Dates, or the
Guaranteed Maximum Price arising from the Change Event.
Section 18.5 Detailed Change Request.
Within twenty (20) days after giving notice of a Change Event, the Design-Builder shall
submit a written Change Request to the Department describing, in reasonable detail, all
adjustments it seeks to the Substantial or Final Completion Dates or the Guaranteed Maximum
Price as a result of the Change Event. The Change Request shall include the same information as
described in Section 18.3 with respect to any Agreement changes the Design-Builder seeks due to
the Change Event, and the amount of any requested adjustment to the Guaranteed Maximum Price
shall be limited in accordance with that Section 18.3.
Section 18.6 Changes to GMP.
Subject to the condition precedent that the Design Builder have complied with the
notice and documentation provisions of this Article, and subject to the limitations stated in this
Agreement, the Design-Builder is entitled to an adjustment to the Guaranteed Maximum Price in
the following cases:
109
1. If the Department issues a Change Directive or Change Order that directs the Design
Builder to proceed with work which is beyond the scope of Work included within
this Agreement; or
2. The Design-Builder encounters Differing Site Conditions or Hazardous Materials
not identified in the Preconstruction Phase.
Section 18.7 Deductive Change Orders.
The Department reserves the right to issue deductive Change Orders (reducing the
Guaranteed Maximum Price or modifying the Substantial or Final Completion Dates to an earlier
date) when changes are effected, by Change Directive or otherwise, which will decrease the cost
of completing the Work or the time within which it can be completed.
Section 18.8 No Adjustments to Fee.
The Design-Builder understands and agrees that the Design-Build Fee shall not be
increased or decreased as a result of any Change Orders or Change Directive. In furtherance of this
understanding, the Design-Builder agrees that it shall not be entitled to an increase in the Lump Sum
General Conditions Cost, or the Design-Build Fee by virtue of changes authorized by the
Department unless such changes fall outside the general scope of work contemplated by this
Agreement. The term general scope of work shall mean a state-of-the-art recreation center facility
that is consistent with the Department’s program of requirements and incorporates sustainable
design initiatives. Without limiting the generality of the foregoing, it is understood and agreed that
the Design-Builder shall not be entitled to any additional fees or general conditions unless: (i) the
Department makes additions to the scope provided for in this Agreement that cause the GMP,
either individually or in the aggregate, to increase by more than ten percent (10%); or (ii) the
Department makes additions to the scope provided for herein which (other than for punchlist or
warranty work) require the Design-Builder’s services for the Project to extend beyond 30 days
after Substantial Completion.
Section 18.9 Executed Change Orders Final.
The Design-Builder agrees that any Change Order executed by the Department and
Design-Builder constitutes its full and final adjustment for all costs, delays, disruptions,
inefficiencies, accelerations, schedule impacts, or other consequences arising from the change in
question, whether a Change Directive, or a Change Event, or from any claimed cumulative effect
of changes made to the date of the Change Order, and that no further adjustments in compensation
or time shall be sought or made with respect to the Change Directive or the Change Event giving
rise to the Change Order. Although the Parties anticipate that most Change Orders will not require
an adjustment to the Cost of General Conditions, if the Work described in a Change Order requires
an increase or decrease in the Lump Sum General Conditions (i.e. because such a Change requires
additional field staff or other equipment that would be classified as General Conditions Costs),
the Change Order shall contain an increase to the Design-Build Fee 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 Conditions Cost.
Section 18.10 Failure to Agree.
110
If the Design-Builder claims entitlement to a change in the Agreement, and the
Department does not agree that any action or event has occurred to justify any change in time or
compensation, or if the Parties fail to agree upon the appropriate amount of the adjustment in time
or compensation, the Department will unilaterally make such changes, if any, to the Agreement,
as it determines are appropriate pursuant to the Agreement. The Design Builder shall proceed with
the Work and the Department's directives, without interruption or delay, and shall make a claim as
provided in Article 18 herein. Failure to proceed due to a dispute over a change request shall
constitute a material breach of the Contract and entitle the Department to all available remedies for
such breach, including, without limitation, termination for default.
Section 18.11 Mark-Up on Trade Work.
The maximum mark up for Change Order work shall be as follows:
1. For Work performed by a Subcontractor with its own forces, the Subcontractor shall be
entitled to a mark-up of not more than fifteen percent (15%) (covering home office overhead,
the cost of insurance and bonds, field supervision, general conditions and profit) on the Direct
Costs of the Work. For Work that the Department permits the Design -Builder to self -
perform, the Design -Builder shall also be e ntitled to a mark -up of not more than fifteen
percent (15%) of the Direct Cost of the Work. With regard to an y such Work that is self -
performed by the Design -Builder, the markup contemplated in this Section 18.11.1 shall be
the Design -Builder’s exclusive compensation and it shall not be entitled to the markup
contemplated in Section 18.11.3;
2. Intervening tier Subcontractor shall be entitled to a mark -up of five percent (5%) (Covering
home office overhead, the cost of insurance and bonds, field supervision, general conditions
and profit) on Work Performed by lower-tier Subcontractor;
3. To the extent permitted by Section 18.8, the Design-Builder shall be entitled to an increase
in its Design-Build Fee at a maximum rate of 2% on work performed by Subcontractor. Such
markup shall cover the same cost elements that were included in the Design-Build Fee;
4. Direct Cost of the Work shall include, but not be limited to: (Direct Cost of the Work does
not, however, include home office overhead, field supervision, general conditions or profit of
either the subcontractor or the Design -Builder. No personnel above t he level of a working
foreman shall be considered a Direct Cost of the Work).
(a) Labor. Payment will be made for direct labor cost plus indirect labor cost such as
insurance, taxes, fringe benefits and welfare provided such costs are considered
reasonable. Indirect costs shall be itemized and verified by receipted invoices. If
verification is not possible, up to five percent (5%) of direct labor costs may be
allowed.
(b) Rented Equipment . Payment for required equipment rented from an outside
company that is neither an affiliate of, nor a subsidiary of, the Design-Builder will be
based on receipted invoices which shall not exceed rates given in the current edition
111
of the Rental Rate Blue Book for Construction Equipment. published by Data Quest.
If actual rental rates exceed manual rates, written justification shall be furnished to
the Contracting Officer for consideration. No additional allowance will be made for
overhead and profit. The Design -Builder shall submit written certification to the
Contracting Officer that any required rented equipment is neither owned by nor rented
from the Design-Builder or an affiliate of or subsidiary of the Design-Builder.
(c) Design-Builder’s Equipment . Payment for required equipment owned by the
Design-Builder or an affiliate of the Design-Builder will be based solely on an hourly
rate derived by dividing the current appropriate monthly rate by 176 hours. No
payment will be made under any circumstances for repair costs, freight and
transportation charges, fuel, lubricants, insurance, any other costs and expenses, or
overhead and profit. Payment for such equipment made idle by delays attributable to
the Government will be based on one -half the derived hourly rate under this
subsection.
(d) Materials. Incorporated and unincorporated materials as permitted under Section
9.1.
112
Article 19 CLAIMS & DISPUTE RESOLUTION
All claims or disputes arising out of this Agreement shall be governed by the terms of the
Standard Contract Provisions (Construction Contracts and Architectural and Engineering
Services).
Article20 - EXHIBITS
ExhibitAl Contractor'sScheduleofValues
ExhibitA2 StandardsandPracticesforCommEnvironmentsExhibitA3 ListofCapitalIneligibleItemsExhibitAd FCA& SpaceUtilizationSurvey
ExhibitAS SpecificationsforRecreationCenterFacilitiesExhibitA6 DPRStandardSignageExhibitA7_Contractor’sAssumptionsandClarificationsExhibitB_ PreliminaryProjectSchedule
ExhibitC Design& PreconstructionandConstructionPhaseDeliverableListExhibitDD PreliminarySubcontractingPlan
Exhibit EqualEmploymentOpportunityStatement
ExhibitFF— KeyPersonnelExhibitG1 DavisBaconActWageDeterminationExhibitG2 29CFR5.5DavisBaconProvisionExhibitH— Design-Builder’sDesignatedRepresentativesExhibit Department’sDesignatedRepresentatives
ExhibitJ1 StandardContractProvisions,GeneralProvisions(ConstructionContracts)
ExhibitJ2__StandardContractProvisions(Architecture/Engineering)ExhibitK FormofLienWaiversExhibit FormofGMPAmendmentExhibitM_—Close-OutDeliverableExhibitN SubcontractorPerformanceEvaluationFormExhibit At-RiskPortionofDesign-BuildFee
ExhibitP_—_LivingWageActandFactSheetExhibitQ__FirstSourceEmploymentAgreementandRevisedEmploymentPlanExhibitR BuildingInformationModeling(BIM)
Exhibit CampaignFinanceReformSelf-CertificationFormExhibitT DGSProjectTurnoverManual
IN WITNESS WHEREOF, the Partieshave executedthisAgreement (DCAM-24-CS-
RFP-0014) throughtheirdulyauthorizedrepresentativesasofthe lastdatewrittenbelow.
DEPARTMENT OF GENERAL GCS,INC.DBA GCS-SIGAJ
SERVICES,anagencywithintheexecutive
branchoftheGovernmentoftheDistrictofColumbia
By:
Name: GabrielOliverName:
Title: Title;Partner& SeniorVicePresident
Date: Date:72/9 3/ 22S
113
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
EXHIBITS A - T
EXHIBITS A-T ARE ACCESSIBLE VIA THE LINK BELOW:
CONTRACT EXHIBITS - DCAM-24-CS-RFP-0014