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MURIEL BOWSER
MAYOR
June 18, 2026
Honorable Phil Mendelson
Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Pursuant to section 451 of the District of Columbia Home Rule Act (D.C. Official Code§ 1-
204.51) and section 202 of the Procurement Practices Reform Act of 2010 (D.C. Official Code§
2-352.02), enclosed for consideration and approval by the Council of the District of Columbia is
Contract No. DCAM-23-CS-RFP-0014 with Chiaramonte Construction Company in the not-to
exceed amount of$8,990,000 (including an existing letter contract amount of$990,000). The not
to-exceed amount is an early release of funds for the initial phase of the modernization of the
Hillcrest Aquatic Center.
As part of the initial phase of the project, Chiaramonte Construction Company will complete
critical path activities, including permitting, release and procurement of long lead materials,
preparation and submission of required submittals, and early construction activities, while the
District and Chiaramonte Construction Company finalize the full scope and guaranteed maximum
price for the project.
My administration is available to discuss any questions you may have regarding the proposed
contract. In order to facilitate a response to any questions you may have, please contact Delano
Hunter, Director, Department of General Services ("DGS"), or have your staff contact Dr. Jacque
McDonald, Associate Director and Chief Procurement Officer, DGS, at (202) 727-2800.
I look forward to the Council's favorable consideration of this contract.
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
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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
(Proposed Early Start Agreement)
Proposed Contract for Early Start Agreement (“ESA”) to Design-Build Services for Hillcrest
Aquatic Center
(A) Contract Number: DCAM-23-CS-RFP-0014 (the “Contract”)
Proposed Contractor: Chiaramonte Construction Company
(the “Contractor”)
Contractor’s Principals: Frank Chiaramonte
President
Proposed Contract Amount
(ESA): Not-to-Exceed (“NTE”) amount: $8,990,000.00
(includes $990,000.00 Letter Contract amount)
Unit and Method of Compensation: Progress payments on a monthly basis
Term of Contract: January 1 2, 2024 (date of execution of the Letter
Contract by the Department) through September 26 ,
2028 (Administrative Term Date) with a Substantial
Completion Date of December 30, 2027, and Final
Completion Date of March 28, 2028.
Type of Contract: Cost-plus fixed fee with Guaranteed Maximum
Price
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.
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(C) The date on which the letter contract or emergency contract was executed:
A letter contract with Chiaramonte Construction Company (the “Contractor”) was executed by the
Department of General Services (the “Department” or “DGS”) on January 1 2, 2024 (the “Letter
Contract”).
(D) The number of times the letter contract or emergency contract has been extended:
The Letter Contract has been modified eight times. Modifications Nos. 1 through 5 and
Modification No. 7 extended the period of performance for the Letter Contract through June 30,
2026. Modification No. 6 incorporated revisions to the scope of work to reflect newly adopted
legal requirements, including mandatory compliance with Appendix Z of the District of Columbia
Energy Conservation Code. It also increased the contract budget to $17,500,000.00 in accordance
with Basic Change Directive No. 1. Modification No. 8 updated the contract to reflect changes to
key personnel.
(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:
The Hillcrest Aquatic Center modernization project is part of the Department’s ongoing effort to
enhance and expand high‑quality recreational facilities serving residents in Wards 7 and 8. The
existing Hillcrest Recreation Center, renovated in 2015, currently offers a range of indoor and
outdoor community spaces; however, it does not include an indoor aquatic facility capable of
meeting year‑round programming demands. In response to increasing community needs and the
Department of Parks and Recreation’s (“DPR”) long‑term vision for equitable access to recreation
amenities, the Department is undertaking the design and construction of a new, standalone aquatic
center on the Hillcrest campus (the “Project”) . This facility will provide enhanced aquatic,
wellness, and community- support features within a modern, accessible, and energy‑efficient
building.
The Project includes full design and construction services for a new indoor aquatic facility located
adjacent to the existing Hillcrest Recreation Center. The new structure will house a 25‑yard pool
with at least six competition‑capable swimming lanes, an indoor splash park, accessible locker
rooms, family changing rooms, restrooms, lifeguard and first‑aid offices, and dedicated storage
and mechanical spaces. The facility is intended to support year‑round recreation and aquatic
programming for residents of all ages and abilities.
To deliver these goods and services, the Contractor will be responsible for advancing the
architectural and engineering design, obtaining all required permits, coordinating with District of
Columbia (“District”) agencies, and constructing the facility in accordance with DPR, DGS, and
applicable code requirements. In addition to building design and construction, the Contract
includes site improvements, utility installations, interior and exterior furnishings, signage, artwork,
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landscaping, security infrastructure, life -safety systems, and integration of communications and
low‑voltage systems consistent with Office of the Chief Technology Officer (“OCTO”) standards.
Significant program elements incorporated into this Project include:
• A dedicated indoor splash park with interactive water features;
• A competition‑ready six‑lane pool compliant with Americans with Disabilities Act
(“ADA”) accessibility standards;
• Modern family changing rooms, accessible locker rooms, and expanded staff areas;
• Durable, high‑performance materials and coatings suited for aquatic environments;
• New exterior site amenities such as bike racks, seating, fencing, drinking fountains, and
upgraded lighting;
• Commissioned artwork sourced from local District artists;
• Comprehensive tree protection measures and landscape improvements in coordination with
the District’s Urban Forestry Division;
• Installation of all required building automation, mechanical, electrical, and HVAC systems
tailored to aquatic‑facility needs.
The Project must also comply with the District’s sustainability requirements. The facility will be
designed to incorporate LEED Silver principles, and the Contractor will be responsible for
pursuing and achieving LEED Silver Certification. The building must also be solar‑ready,
including installed conduits, structural supports, and coordination for future solar arrays.
The Project has an approved budget of $17, 500,000.00. The proposed NTE amount of
$8,990,000.00 is an early release of funds that is necessary to advance critical‑path activities prior
to the execution of the Guaranteed Maximum Price ( “GMP”) in order to maintain the overall
project schedule and mitigate delays associated with permitting requirements, long‑lead material
procurement, and early site work. This ESA includes costs associated with permitting, release and
procurement of long‑lead materials, preparation and submission of required submittals, and early
construction activities. 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 June 9, 2023, the Department posted RFP No. DCAM -23-CS-RFP-0014 - Design-Build
Services for Hillcrest Aquatic Center to engage a contractor to provide Design -Build services for
the Project on the Department’s website.
There were two (2) Addenda issued to this RFP.
Addendum No. 1 was issued on July 3, 2023.
- Extended the proposal due date to July 14, 2023.
- Provided the list of pre-proposal conference participants.
- Provided the list of site visit participants.
Addendum No. 2 was issued on July 11, 2023.
- Provided Questions and Answers to the RFP.
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- Provided Revised DPR Hillcrest Indoor Aquatic Center Design Inspiration (Attachment
A1 of the RFP)
- Provided New Section 1.1.15 – Parking in section 1.1 of the RFP
- Provided New Section 1.1.15 – Parking in section 2.1 (b) of the RFP
Proposal Submissions:
On the Proposals’ due date, July 14, 2023, three (3) firms (collectively, the "Offerors" and each
individually, an "Offeror") submitted Proposals in a timely manner.
Technical Evaluations Process:
Each Offeror’s technical proposal was independently evaluated by a Technical Evaluation Panel
(“TEP” or “Panel”). A kick-off meeting was held and established a schedule for the evaluation of
proposals and discussed in detail the roles and responsibilities of the TEP. In addition, each TEP
member completed the required Disclosure Agreement and Confidentiality Agreement. Prior to
convening the evaluation meeting, each member of the Panel individually completed an
evaluation of the proposals.
Consensus Meeting:
After the Panel members had completed their individual evaluations of the proposals, the Panel
met on August 31, 2023, to develop the consensus technical score for each Offeror.
Contracting Officer’s Independent Evaluation:
The Department’s Contracting Officer carefully reviewed each of the proposals and independently
rated each Offeror. He further carefully reviewed the evaluation process followed by the Panel,
their 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 or a 12 percent reduction in price.
Determination of a Fair and a 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 IGE and is fair and reasonable and accordingly a mutually
satisfactory Contract was successfully concluded with the Contractor.
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Contract Award:
On January 12, 2024, the Department awarded Letter Contract No. DCAM -23-CS-RFP-0014 to
the Contractor as such award was determined to be most advantageous to the District.
(H) A description of any bid protest related to the award of the contract, including whether the
protest was resolved through litigation, withdrawal of the protest by the protestor, or
voluntary corrective action by the District. 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:
The Contractor holds the following contract with the District:
1. Anacostia Recreation Center;
2. ADA Upgrades PKG1 - 4 DPR Facility;
3. Design-Build Services of Hill East Campus Redevelopment;
4. ADA Upgrade PKG3 - 3DPR Facility;
5. ADA Upgrade PKG2 - 4 DPR Facility;
6. Davis Elementary School HVAC Upgrades;
7. Design-Build Services for Jefferson Turf Field;
8. Design-Build Services for HD Cooke Elementary School Playgrounds Replacement;
9. Design-Build Services for Stoddert Elementary School Addition;
10. Design-Build Services for the Ft Grable Recreation Center;
11. Fencing Upgrade for DPR Multiple Locations;
12. Design-Build Services for the Ketcham Elementary School Modernization;
13. Design-Build Services for the Hillcrest Aquatic Center;
14. Design-Build Services for the Goding Elementary School Waterproofing;
15. Design-Build Services for Johnson HVAC Upgrade;
16. Design-Build Services for DC DOC Windows Replacement;
17. Design-Build Services for Oak Hill Infrastructure Upgrade;
18. WMATA Bike Storage and Locker Installation;
19. DCPL Petworth Library;
20. DCPL Shaw Library;
21. Design-Build Services for Harry Thomas Recreation Center; and
22. Design-Build Services for the Bancrof Annex Renovation
(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:
The Contractor is a Certified Small Business Enterprise (“SBE”) based in Washington, DC. The
Contractor was established in 2004 to provide new construction and renovation services for
commercial, municipal, and government facilities in the District. Over the years, the firm has
expanded to offer general construction, management, and procurement services while also self -
performing a wide range of trades, including drywall, framing, carpentry, concrete, and masonry.
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The Contractor has successfully completed numerous projects for the District, demonstrating its
commitment to teamwork, quality, and customer satisfaction.
(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 business enterprise in accordance with the Act (CBE Number:
LSZX29212122027). Pursuant to D.C. Code § 2-218.46 (d- 1), the Contractor shall submit a
detailed subcontracting plan to DSLBD that meets the requirements of D.C. Code § 2-218.46(d),
before entering into a guaranteed maximum price. Notwithstanding the foregoing, the Contractor
has certified that it will subcontract a portion of the Contract amount to SBE/CBE’s that are
certified by DSLBD, as follows, as required by law:
Contract Dollar Value: $8,990,000.00
Self-Performance Dollar Value: $3,200,440.00
Minimum CBE Subcontracting Requirement
(35% of Total Available for Subcontracting): $2,026,346.00
Actual Subcontracting Amount $2,061,600.00
(L) Performance standards and the expected outcome of the proposed contract:
The Project consists of providing full design and construction services for a new standalone indoor
aquatic center adjacent to the existing Hillcrest Recreation Center. The new facility will include a
six‑lane, 25‑yard competition‑capable pool, an indoor splash park, accessible locker rooms and
family changing rooms, staff support spaces, and associated building systems and site
improvements. The facility will be designed to meet LEED Silver requirements and all applicable
District standards, including sustainability, accessibility, safety, and operational guidelines. The
Contractor shall achieve Substantial Completion no later than December 30 , 2027. The
Contractor’s performance will be monitored by DGS staff and the Department’s designated
Program Manager and shall comply with all terms and conditions of the District’s Standard
Contract Provisions for Construction Contracts and Architectural and Engineering Services
Contracts.
(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 January 12, 2024, 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:
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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):
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, Small, Disadvantaged
Business Enterprise. The Contractor’s Certification Number is LSZX29212122027 with an
expiration date of December 31, 2027.
(S) Other aspects of the proposed contract that the Chief Procurement Officer considers
significant:
None.
(T) A statement indicating whether the proposed contractor is currently debarred from
providing services or goods to the District or federal government, the dates of the debarment,
and the reasons for debarment:
The Contractor is not debarred from providing services to the Government of the District of
Columbia or the Federal Government according to the Office of Contracts and Procurement’s
Excluded Parties List and the Federal Government’s Excluded Parties List.
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(U) Any determination and findings issues relating to the contract’s formation, including any
determination and findings made under D.C. Official Code § 2-352.05 (privatization
contracts):
Not applicable.
(V) Where the contract, and any amendments or modifications, if executed, will be made
available online:
Contract award information is available on the Department’s website. Copies of 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.
(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.
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Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019
Memorandum
To: Delano Hunter
Director, Department of General Services
From: Antoinette Hudson Beckham
Agency Fiscal Officer
Reference: Proposed Contract No. (DCAM-23-CS-RFP-0014) Design-Build Services for
Hillcrest Aquatic Center
Date: May 27, 2026
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 Hillcrest Aquatic Center (DCAM-23-CS-RFP-0014)
(the “Contract”) with Chiaramonte Construction Company (the “Contractor”), in the amount of
$8,990,000.00 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 January 12, 2024, the Letter Contract
was executed by the Department, with an initial Not-to-Exceed (“NTE”) amount of $990,000.00. The
proposed Early Start Agreement (“ESA”) No. 1 in the amount of $8,000,000.00 will increase the NTE
amount to $8,990,000.00 ($990,000.00 + $8,000,000.00). The proposed ESA No. 1 establishes the first
Early Start Agreement for the project based on the revised Schematic Design. ESA No. 1 is necessary
to advance critical‑path activities prior to the execution of the Guaranteed Maximum Price (GMP) in
order to maintain the overall project schedule and mitigate delays associated with permitting
requirements, long‑lead material procurement, and early site work. This ESA includes costs associated
with permitting, release and procurement of long‑lead materials, preparation and submission of
required submittals, and early construction activities. The proposed ESA No. 1 is a tipper and will
increase the contract value to $1 million or more, therefore, Council approval is required.
The Department of General Services (AM0 –Implementing AGY) has $8,990,000.00 in the
Department of Parks and Recreation (DPR - Owner AGY) capital budget authority balance.
The PASS information is below/attached:
Project Number/
Name
Subtask AY Fund
Detail
Imp. AGY Owner
AGY
RK/PO Amount Comments
100206 –
AM0.RG0HCC.HILL
CREST INDOOR
AQUATIC CENTER
04.01 – (HCIQD.
95101.HILLCREST
INDOOR
ACQUATIC
CENTER.CAP
PROJ - PHYSICAL
PLANT (GA0))
N/A
3030300
AM0
HA0 PO702821 $990,000.00
Letter Contract
100206 –
AM0.RG0HCC.HILL
CREST INDOOR
AQUATIC CENTER
04.01 – (HCIQD.
95101.HILLCREST
INDOOR
ACQUATIC
CENTER.CAP
PROJ - PHYSICAL
PLANT (GA0))
N/A
3030300
AM0
HA0 RK327290 $8,000,000.00 Proposed ESA
No. 1
Total $8,990,000.00
_______________________
Antoinette Hudson Beckham
Agency Fiscal Officer
Department of General Service
for AHB
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
TO: Shaley Williams
Senior Assistant General Counsel
SUBJECT: Legal Sufficiency Review
Proposed Contract No. (DCAM-23-CS-RFP-0014) Design-Build
Services for Hillcrest Aquatic Center
Chiaramonte Construction Company
DATE: June 4, 2026
_____________________________________________________________________________
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.
_______________________
Shaley Williams
Senior Assistant General Counsel
3924 Minnesota Ave, NE, Washington, DC 20019 | Telephone (202) 727-2800 | F a x (202) 727-7283
GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF GENERAL SERVICES
January 1, 2024
By Electronic Mail to frank@cc-builder.com
Frank Chiaramonte
President
Chiaramonte Construction Company
2260 Minnesota Ave SE
Washington, DC 20020
Reference: Request For Proposals No. DCAM-23-CS-RFP-0014 (“RFP”) – Design-Build
Services for Hillcrest Aquatic Center
Subject: Notice to Proceed and Letter Contract
Dear Mr. Chiaramonte,
We refer to the proposal submitted by Chiaramonte Construction Company (the “Contractor” or “Design-
Builder”) in response to the above-referenced RFP. We are pleased to inform you that this work has been
awarded to Chiaramonte Construction Company and if this Letter Contract (“Letter Contract”) is signed
by the Contractor without modification of any kind, it will serv e as a notice to proceed with the work
described below. This notice to proceed is subject to the following terms:
1. Letter Contract. This is a Letter Contract between the Contr actor and the District of Columbia
Government, acting by and through its Department of General Services (“DGS” or the “Department”), and
shall govern our relationship until such time as a final contract is entered into for the work described in the
above-referenced RFP (the “Definitized Contract”); provided, ho wever, that to the extent an issue is not
covered in this Letter Contract, the RFP shall govern. Once the Definitized Contract is executed by an
authorized Contracting Officer, this Letter Contract shall auto matically terminate and merge into the
Definitized Contract.
2. Scope of Work. The Contractor shall provide Design-Build Serv ices for Hillcrest Aquatic Center,
located at 3100 Denver Street SE, Washington, DC 20020, as described in the Contractor’s Proposal dated
July 14, 2023 submitted in response to the subject RFP.
3. Deliverables. In connection with the services provided pursua nt to this Letter Contract, the
Contractor shall provide, at a minimum, the deliverables in acc ordance with the requirements in the RFP
and Form of Contract to the Department’s Program Manager and in the referenced instances to the
Contracting Officer.
In the event that the Contractor fails to timely submit any such deliverable, the Contractor shall pay to the
Department as a disincentive fee Two Thousand and Five Hundred Dollars ($2,500.00) plus Five Hundred
Dollars ($500.00) per day after receiving written notice from t he Contracting Officer of failure to submit
3924 Minnesota Avenue NE, 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727-7283
each deliverable. This remedy is cumulative and does not limit any other right or remedy of the Department
under the contract or applicable District law.
4. Not to Exceed Amount. The limit of this authorization is up to $990,000.00 (“Not to Exceed”
amount or “NTE”) including portions of the design fee, and gene ral conditions cost, 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 not-to-exceed amount includes all costs incurred
by the Contractor in connection with the work authorized hereby.
5. Construction Phase Compensation. The Contractor understands a nd agrees that the Department
makes no representation or warranty that the Contractor shall b e entitled to serve as the builder for the
Project. If, however, the Department and the Contractor agree u pon a GMP and schedule for the Project,
the Contractor agrees that it shall be paid a Design-Build Fee of $1,795,000.00 and that the Lump Sum
General Conditions Cost shall be$998,000.00 based on the schedule and budget set forth in the RFP. The
Contractor further agrees to enter into a design-build agreemen t that is substantially similar to the
Agreement for Design-Build Services issued with the RFP, subjec t only to such adjustments as were
requested by the Contractor in its bid and which are agreed to by the Department.
6. Insurance. At all times while working under this Letter Contra ct, the Contractor shall maintain
insurance as described in the RFP. All such policies shall be e ndorsed to add the District of Columbia,
including, but not limited to, its Department of General Servic es, and the respective agents, employees,
and offices of each as additional insureds.
7. Duration. Once signed by the Contractor, the Letter Contract w ill become effective on the date the
Letter Contract is executed by the Department. This Letter Contract will terminate on the earlier to occur
of the following: (i) the date the Definitized Contract becomes effective; or (ii) May 10, 2024 .D G S
reserves the right to terminate this Letter Contract, in whole or specified part, for convenience in the
manner described in Article 5 and Article 6 of the District of Columbia Department of General Services
Standard Contract Provisions General Provisions for Construction Contracts.
8. Billing. All invoices shall be submitted directly to the Depar tment at the address specified in the
RFP. Purchase Order numbers should be included in all future in voices and accounting records. Properly
prepared invoices with the necessary backup shall be paid within thirty (30) days of receipt. Invoices not
paid by that date shall bear interest in accordance with the Quick Payment Act.
9. Key Personnel. To carry out its duties, the Design-Builder shall provide at least the key personnel
identified in Exhibit C (“Key Personnel”), who shall carry out the functions identified i n Exhibit C .
Among other things, the Key Personnel shall include:
A - Key Personnel of the Design-Builder:
(i) Field Superintendent; (ii) Project Manager; and (iii) Safety/Quality Assurance/Quality Control
Manager
B - Key Personnel of the Architect/Engineer:
(i) the Design Principal-in-Charge; (ii) the Project Designer; ( iii) the Project Architect; (iv) the
Civil Engineer; (v) the Key Mechanical, Electrical and Plumbing (MEP) Engineers; (vi) the
Pool Consultant; (vii) and the Landscape Architect.
3924 Minnesota Avenue NE, 5th Floor Washington DC 20019 | Telephone (202) 727.2800 | Fax (202) 727-7283
It is contemplated that these Key Personnel will work from the design stage, purchasing, and throughout
the bulk of the fieldwork. The Design-Builder’s obligation to p rovide adequate staffing is not limited to
providing the Key Personnel but is determined by the needs of t he Project. If any of the Key Personnel
become unavailable to perform services in connection with the Letter Contract due to death, disability, or
separation from the employment of the Design-Builder or any aff iliate of the Design-Builder, then the
Design-Builder shall promptly notify the Department’s Contracti ng Officer and propose a replacement
acceptable to the Department. The Department shall be entitled to complete information before approving
such replacement. Certain members of the Design-Builder’s Key P ersonnel shall be subject to a
replacement fee for their removal or reassignment by the Design-Builder.
If the Design-Builder replaces one of the key personnel listed in Exhibit C as being subject to a
replacement fee, without the prior written consent of the Depar tment, then the Design-Builder shall pay
the Department $25,000 for each replacement as a replacement fee and not a penalty, to reimburse the
Department for its administrative costs arising from the Design -Builder’s failure to provide the Key
Personnel. The foregoing replacement fee amount shall not bar r ecovery of any other damages, costs, or
expenses other than the Department’s internal administrative costs.
10. ProjectTeam. The Design-Builder shall utilize the Department’ s current project management
software, ProjectTeam, to submit any and all project documentation required to be provided by the Design-
Builder for the Project, including, but not limited to: (i) re quests 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) punchlist; and (viii) other documents as may be designated by the Department.
Electronic storage and transmission of information via ProjectT eam system shall be compliant with the
provisions of DGS document security.
11. Invoice Submittal. The Contractor shall create and submit pay ment requests in an electronic
format through the DC Vendor Portal, https://vendorportal.dc.gov. The Contractor shall submit proper
invoices on a monthly basis. To constitute a proper invoice, th e Contractor shall enter all required
information into the Portal after selecting the applicable purc hase 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 visithttp://vendorportal.dc.gov to
submit an inquiry.
12. Purchase Order Number. This Letter Contract will become effe ctive on the date the Letter Contract
is executed by the Department. The Department’s Contracting & P rocurement 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 Shafi Anwary via shafi.anwary@dc.gov directly to obtain this number.
13. Ownership and Use of Documents. All documents and work product prepared by the Contractor
shall become the property of the Department upon the payment of invoices submitted under the Letter
Contract.
14. Trade Work/Site Control. Unless otherwise directed by the Department, the Contractor shall not
perform any trade work or take control of the site. Any authori zation to proceed with trade work will
include appropriate provisions relating to compliance documents (first source employment agreement,
Department of Small and Local Business Development (DSLBD)), bo nds, insurance, and safety
procedures. At a minimum, however, the Department’s Standard Co ntract Provisions for Construction
1/12/2024
Obaidullah
Ranjbar
Digitally signed by Obaidullah Ranjbar
DN: cn=Obaidullah Ranjbar, o, ou=C&P,
email=Obaidullah.ranjbar@dc.gov, c=US
Date: 2024.01.12 09:01:56 -05'00'
Page 1
DESIGN-BUILD AGREEMENT
FOR
HILLCREST AQUATIC CENTER
BY AND BETWEEN
THE DEPARTMENT OF GENERAL SERVICES
AND
CHIARAMONTE CONSTRUCTION COMPANY
CONTRACT NUMBER: DCAM-23-CS-RFP-0014
PROJECT INFORMATION
Page 2
A. PROJECT SUMMARY
1. Project Name:
Design Build Services for Hillcrest Aquatic
Center
2. Project Address:
3100 Denver Street SE, Washington, DC
20020
3. Agreement Type: Design-Build with Guaranteed Maximum
Price
4. Client Agency: Department of Parks and Recreation
(“DPR”)
5. Design-Builder: Chiaramonte Construction Company
6. Agreement Amounts:
i. Initial NTE:
Early Start Agreement (“ESA”) in the
amount of $8,990,000.00 (includes
$990,000.00 Letter Contract amount) –
Exhibit M1
ii. Project Budget: $17,500,000.00
7. Design-Builder Compensation:
i. Design Fee (including Construction
Administration): $1,494,436.00
ii. Design-Build Fee: $700,000.00
a. Base Design-Build Fee:
(60% of Design-Build Fee) $420,000.00
b. At-Risk Portion of Design-Build Fee
(40%): Exhibit P $280,000.00
iii. Lump Sum General Conditions Cost: $1,165,500.00
iv. Allowances:
Owner Directed Allowance ($1,000,000.00)
Building Permit Allowance ($75,000.00)
Unsuitable Soils Allowance ($50,000.00)
v. Preconstruction Fee (15% of the
Base Design-Build Fee) $105,000.00
vi. Contingency: To be determined at GMP
8. Liquidated Damages: $2,500.00 plus $250.00/day
9. Disincentive Fee for Failure to Timely
Submit Deliverables: $2,500.00 plus $250.00/day
10. GMP Basis Project Documents
Submission Date: August 2026
Page 3
11. Substantial Completion Date: December 30, 2027
12. Final Completion Date: March 28, 2028
13. Administrative Term Expiration Date: September 26, 2028
14. Letter Contract (if applicable):
Period of Performance:
January 12, 2024, through the execution of
this Contract
NTE Amount: $990,000.00
15. GMP Basis Project Documents: Permit Set of Construction
Documents
16. Key Personnel Replacement: $25,000.00 per replacement
17. Assumptions and Clarifications: (Exhibit M2)
Page 4
DESIGN-BUILD AGREEMENT
HILLCREST AQUATIC CENTER
DCAM-23-CS-RFP-0014
THIS AGREEMENT (“Agreement” or “Contract”) is made by and betwe en the
DISTRICT OF COLUMBIA GOVERNMENT (the “District”), acting by and through its
DEPARTMENT OF GENERAL SERVICES (the “Department” or “DGS” or “Owner”), and
CHIARAMONTE CONSTRUCTION COMPANY a company duly organized under the
laws of the District of Columbia, and with a place of business at 2260 Minnesota Avenue SE,
Washington, DC 20020 (the “Desi gn-Builder” or “Contractor” and collectively with the
Department, the “Parties”).
RECITALS
WHEREAS, the Department issued a Request for Proposals (the “RFP”) dated June 14,
2023, to engage a design-builder to prepare a design for and to construct and complete the work
at the Hillcrest Aquatic Center, located at 3100 Denver Street SE, Washington, DC 20020 (the
“Project”); and
WHEREAS, the Department intends to impl ement the Project through a des ign-build
approach. The scope of work for the Project will be divided into two phases: (i) the design and
preconstruction phase; and (ii) the construction phase; and
WHEREAS, the Department requires that t he Project be completed no late r than
December 30, 2027 (the “Substantial Completion Date”); and
WHEREAS, the Design-Builder submitted a proposal entitled “Proposal fo r Design-
Build Services for the Hillcrest Aquatic Center – DCAM-23-CS-RF P-0014,” dated July 14,
2023, to provide design-build services for the Project; and
WHEREAS, the Department retained the De sign-Builder to provide design- build
services for the Project, which is to include design, preconstr uction, and construction services
for the Hillcrest Aquatic Center; and
WHEREAS, the Design-Builder will provide the architectural and enginee ring
(“Architectural/Engineering” or “A/E”), construction, and related services necessary to complete
the Project, subject to the terms and conditions set forth in this Agreement; and
WHEREAS, the Department has retained the services of a Contracting Off icer’s
Technical Representative (“COTR”), and a program manager (the “Program Manager” or “PM”)
to advise it concerning the Project; and
WHEREAS, the Department has established a budget and the Design-Builder will
conduct its work in accordance with an underlying budget for the Project, which includes but is
not limited to all design fees, hard and soft construction cost s, fees, general conditions of the
Design-Builder, and allowances, until achieving Final Completio n (such budget, the “Project
Budget”); and
WHEREAS, the Department and the Design-Builder entered into a letter co ntract dated
January 12, 2024, (the “Letter Contract”) pursuant to which the Design-Builder was authorized
to proceed with certain design and preconstruction services in furtherance of the Project.
Page 5
NOW, THEREFORE , the Department and Design-Builder, for the consideration set
forth herein, mutually agree as follows.
Page 6
DEFINITIONS
Section 1.1. Administrative Term.
The Agreement shall have an administrative term (the “Administr ative Term”) that runs from
the effective date of the notice to proceed to the Administrative Term Date set forth in the Project
Information Section above. In ad dition, within this time the De sign-Builder shall execute and
submit a Final Release of Liens and Claims in a form and format required by a Contracting
Officer (“CO” or “Contracting Officer), inclusive of providing the Department with a complete
set of any product manuals (“O&M”) and training videos, if appl icable. The Administrative
Term is established for the sole purpose of permitting the Depa rtment’s Office of the Chief
F i n a n c i a l O f f i c e r ( “ C F O ” ) t o p r o c e s s p a y m e n t s i n t h e e v e n t a n y payments become
due. Notwithstanding the foregoing, nothing herein shall be construed to extend the Substantial
Completion Date, extend the Final Completion Date, or limit the Department’s ability to assess
liquidated damages thereon.
Section 1.2. Agreement.
The terms “Agreement” or “Contract” shall mean this entire, int egrated agreement between the
Department and the Design-Builder with respect to the Project, consisting of this document and
the Exhibits thereto, including but not limited to the Standard Contract Provisions (Construction
Contracts and Architectural/Engine ering Services Contracts), th e construction documents
released for the Design-Builder’s use and any change orders, co ntract modifications or change
directives that have been executed by the Department.
Section 1.3. Client Agency.
The governmental or quasi-governmental entity, represented by t he Department, requesting the
Project.
Section 1.4. Construction Documents.
The final Drawings and Specifications, as prepared, sealed by the Design-Builder’s architect in
accordance with the law, and issued by the Design-Builder for t he purpose of obtaining bids
from potential trade subcontractors and material suppliers for use in constructing the Project.
Section 1.5. Construction Phase Services.
The services provided throughout the construction phase during which the Design-Builder shall
carry out the bulk of the construction and manage the completio n of the design for the Project,
including construction administration services.
Section 1.6. Cost of General Conditions.
The Cost of General Conditions shall mean the lump sum amount the Design-Builder is entitled
to recover for general conditions and is further described in Section 9.2 of this Agreement.
Section 1.7. Contract Documents.
The term “Contract Project Docum ent(s)” refers to one or more c omponents of the Project
documents that comprise the Agreement between the Department an d the Design-Builder,
including any modifications or ch anges thereof, the drawings an d specifications, and any
addenda to the RFP issued thereto.
Section 1.8. Design and Preconstruction Phase Services.
The services to be provided unde r Article 3 constitute the desi gn & preconstruction phase
services to be performed by the Design-Builder.
Section 1.9. Drawings.
The drawings are the graphic and pictorial portions of the Contract Project Documents, wherever
located and wherever issued, showing the design, locations, and dimensions of the Work,
Page 7
generally including plans, elevations, sections, details, schedule, and diagrams.
Section 1.10. Final Completion.
The point at which Substantial Completion has been achieved, al l punchlist items noted at
Substantial Completion have been c ompleted and all Project docu ments the Design-Builder is
required to deliver to the Depa rtment as a condition to receivi ng final payment have been
delivered.
Section 1.11. Final Completion Date.
The date established in the Agreement by which the Design-Build e r s h a l l a c h i e v e F i n a l
Completion. The Final Completion Date may be modified only by C hange 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 an d Subcontractors and material
suppliers, complete all punchlist items to the Department’s approval and sign-off, and cause all
representations, warranties, and guarantees to be honored and o t h e r w i s e f u l f i l l a l l o f t h e
requirements set forth in the Agreement.
Section 1.13. Guaranteed Maximum Price or GMP.
The maximum amount, including, but not limited to, the design-b uild fee and the Cost of the
Work, that will be paid to the Design-Builder to Fully Complete the Project as set forth in Article
4. The Guaranteed Maximum Price (“GMP”) may be modified only by Change Order, Contract
Modification, or Change Directive in accordance with the Agreem e n t . T h e G M P s h a l l b e
established in the GMP Amendment.
Section 1.14. Hazardous Material.
Hazardous Material includes but i s not limited to, any toxic su bstance 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 t h e e n v i r o nm e n t. S u c h la w s
include, without limitation, the C omprehensive Environmental Re sponse, Compensation and
Liability Act, the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air
Act, and laws relating to emissi on, spills, leaks, discharges, releases, or threatened releases of
toxic material. The term Hazar dous Materials shall also includ e petroleum and petroleum by-
products.
Section 1.15. Notice to Proceed.
A written notice to proceed, signed by the Department’s Contrac ting Officer, directing the
Design-Builder to proceed with the Project or any portion of the Project (“Notice to Proceed” or
“NTP”).
Section 1.16. Project Schedule.
The schedule for the Project (“Project Schedule”) is agreed upo n by the Department and the
Design-Builder. Such schedule shall include a baseline schedule as updated periodically by the
Design-Builder, approved by the Department. The Project Schedule shall not be changed except
by a Contract Modification, Change Order or Change Directive issued by the Department’s CO
or Contracting Officer. The Project Schedule shall be in a form and contain such detail as may
be agreed upon by the Parties.
Section 1.17. Self-Performed Work.
The parties hereby agree that “Se lf-Performed Work” means and s hall encompass trade work
performed by employees of: (1) the Design-Builder; (2) any enti ty that is a partner or member
Page 8
of the entity comprising the Design-Builder; (3) any entity tha t 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 subcontracto rs 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 sha ll include the Design &
Preconstruction Phase Services and the Construction Phase Servi ces necessary to deliver the
Project.
Section 1.19. Specifications.
The Specifications are that portion of the Contract Project doc uments 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 Contra cts and Architectural/Engineerin g Services Contracts), as
amended, is attached hereto as Exhibit J1 and Exhibit J2 and incorporated herein.
Section 1.21. Subcontractor.
Any person, natural or legal, to whom the Design-Builder delega tes the performance of any
portion of the Work required by the Agreement. The term “Subco ntractor,” used without a
qualifier, shall mean a subcontra ctor in direct contractual pri vity with the Design-Builder.
“Subcontractors at all tiers” shall mean not only those Subcontractors in direct contractual privity
with the Design-Builder and not t he Department, but also those performing Work pursuant to
sub-subcontracts, and so on. “Sub contractors” shall include bo th those who are retained to
perform labor only and those who are retained both to perform l abor and to supply material or
equipment. “Subcontractors” sha ll also include design professi onals who are not the Design-
Builder’s employees and to whom t he Design-Builder delegates an y part of its responsibilities
under the Agreement, except those references to “trade Subcontr actors” shall exclude design
professionals.
Section 1.22. Substantial Completion.
Substantial Completion shall mean that all of the following have occurred: (1) The Pro ject’s
construction and installation wor k have been completed with onl y minor punchlist items
remaining to be completed; (2) T he Project has obtained a Depar tment 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 per mits or approvals have been
obtained; (3) All Operation and Ma intenance Manuals have been f inalized, submitted, and
approved, and shall be submitted to the Department six months prior to Substantial Completion;
(4) Required trainings per Turnover Manual have been scheduled within thirty (30) days of the
Substantial Completion Date. The Design-Builder shall provide f inal videotaped recordings
within thirty (30) days of the Substantial Completion Date; (5) Draft Warranties have been
submitted and approved; (6) The Project has obtained DC Department of Health (DOH) approval
of the pool facility; (7) The facility and site have been deep cleaned and cleared of any
construction debris; (8) The Project is ready for the Department and DPR to use it for its intended
purpose; (9) All equipment, supp lies, materials and items to be installed have been installed in
accordance with the manufacturer’s specifications and industry standards and have undergone
and passed the requisite testing and inspections; and (10) Commissioning is complete and a final
punch list is documented with com pletion dates. “Minor punchlis t items” are defined for this
Page 9
purpose as items that, in the aggregate, can be completed withi n thirty (30) days without
interfering with the Department or Client Agency’s normal use of the Project.
Section 1.23. Substantial Completion Date.
The date established herein by which the Design-Builder shall achieve Substantial Completion.
The Substantial Completion Date m ay 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 the performance of the services necessary,
at any and all phases of the Agreement, to Fully Complete the Project.
Page 10
GENERAL PROVISIONS
Section 2.1. Letter Contract
The Parties acknowledge that certain of the investigation, design, and preconstruction activities
described in Article 3 of this Agreement were performed pursuant to the Letter Contract between
the Parties dated January 12, 2024. Pursuant to the terms of the Letter Contract, upon execution
of this Agreement by the Department (the “Agreement Effective Date”), the Letter Contract shall
automatically be incorporated into and shall merge into and be superseded by this Agreement.
The Parties agree that any servic es provided or work performed pursuant to the merged Letter
Contract, and prior to the Agree ment effective Date, shall be g overned by the terms and
conditions of this Agreement.
Section 2.2. Term and Termination
The period of performance under this Agreement shall commence from the date of execution of
the Contract by the Department, unless the Department executes a Letter Contract, in which case
the period shall commence from the execution of the Letter Cont ract, and shall terminate upon
the expiration of the Administrative Term or upon termination b y the Department pursuant to
Articles 5 and 6 of the Standard Contract Provisions (Construct ion Contracts) and Article 8 of
the Standard Contract Provisions (Architectural & Engineering Services Contracts).
Section 2.3. Relationship of Parties.
The Design-Builder accepts the r elationship of trust and confid ence established with the
Department by this Agreement, an d covenants with the Department to furnish the Design-
Builder’s reasonable skill and ju dgment and to cooperate with t he 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 Depart ment. The Department shall ende avor to promote harmony and
cooperation among the Department, Design-Builder, Program Manag er, and other persons or
entities employed by the Department for the Project. In perform ing its duties under this
A g r e e m e n t , t h e D e s i g n - B u i l d e r s h a l l a t a l l t i m e s u s e t h e s t a n d ard 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 “compete nt” 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 da ta obtained throughout the
performance of the Project whether related to the Agreement, th e Work in all of its aspects, the
Department, and the Department’s employees confidential, during and following the term of the
Agreement and shall not use the information in connection with any other matters; nor shall it
disclose any such information to any other person, firm or corp oration, unless disclosure is
required pursuant to a court order, subpoena or other regulator y authority. The Design-Builder
shall not be divulged of confidential information without the individual’s and the Department’s
written consent and only in accordance with District’s or Feder a l l a w s , c o d e s , a n d
regulations. The Design-Builder and any Subcontractors who utilize, access, or store personally
identifiable information as part of the performance of this Agr eement are required to safeguard
this information and immediately notify the Department of any breach or suspected breach in the
security of such information. The Design-Builder and all Subcon tractors shall allow the
Department to participate in bot h the investigation of incident s 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.
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Section 2.5. Project Description.
The Design-Builder shall provide Design-Build Services required for Hillcrest Aquatic Center,
located at 3100 Denver Street SE, Washington, DC 20020 (the “Project”). The Project shall be
complete, operating and ready for use on or before the Substant ial Completion Date and within
the Project’s budget as specified in the RFP Documents.
Generally, the Design-Builder’s r esponsibilities shall include, but will not be limited to, the
following:
a) To confirm the design and constr uction of the Project in accord ance with the
RFP Documents.
b) To provide all design services and construction management services necessary
to implement the goals of the Project including, but not limited to, the following:
civil, architectural, electrical, structural, and mechanical de sign services as
required for the Project; constr uction management services incl usive of
budgeting, value engineering (“Va lue Engineering”), scheduling, P r o j e c t
administration, management, and coordination of subcontractors.
c) To conduct subsurface investigation work if and as required for the Project.
d) To furnish and provide all mater ials, management, personnel, eq uipment,
hazardous material abatement, supervision, labor, and other ser vices necessary
to complete the Project.
e) To provide the necessary design consultants, and documentation for all
permitting, zoning, historic pr eservation, and US Commission of F i n e A r t s
approvals; and
f) To provide move coordination and logistics support for the Project if required to
achieve the Project scope.
Based on the approved plans and specifications, the Design-Builder shall construct the Project.
During the Construction Phase, the Design-Builder shall be requ ired 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 re sponsible for paying for and
obtaining all necessary permits and to pay all necessary fees for utility connections and the like.
Artwork: Furnish and install commissione d artwork as required by DGS/DP R. Selected
artist/artwork shall be local to the District of Columbia.
Furnishings - Site: Furnish and install benches, fencing, signage, trashcans, bik e racks, hand
sanitizing stations, and drinking fountains as applicable and as directed by DGS/DPR.
Furnishings - Interior: Furnish and install furniture, fixtures, and equipment for interior spaces
as applicable and as directed by DGS/DPR.
Exterior Landscaping:
a) Furnish and install new ground c over plantings such as shrubs a nd native plantings at
locations to be determined by DGS and DPR.
b) Conduct invasive cleanup, stump removal/root grinding as necessary.
c) Coordinate tree requirements for this site with District Depart ment of Transportation -
Urban Forestry Division (“UFD”).
d) Provide arborist service for tree protection. The arborist shal l evaluate the condition of
the existing trees prior to de sign, and throughout the Project, including during
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construction. Extensive coordina tion with the UFD will be requi red, to maintain the
health of the existing trees.
e) A minimum of three (3) meetings w ith UFD (including on-site mee tings) shall be
planned. Tree protection, as directed by UFD, in coordination with the arborist, shall be
employed throughout the Project.
Indoor Pool:
a) Furnish and install an indoor pool that is compliant with Americans with Disabilities Act
(“ADA”) accessibility standards.
b) Pool shall be provided with a beach entry.
c) Lifeguard chairs should be provided as required by code.
d) Indoor pool shall include an indoo r splash park with splash ele ments similar to what’s
shown in the design inspiration in Attachment A1.
e) Indoor pool shall have a minimum of six (6) swimming lanes that are 25 yards in length.
f) Facility shall include a first aid office and lifeguard office.
g) The Design-Builder shall utilize a pool sand filter system in the pool equipment/chemical
room.
h) Pool deck shall include linear drains to capture pool water on the surface.
i) Pool shall be designed and installed in compliance with DC Health regulations.
j) HVAC system serving the pool shall include a Rooftop Air Handling Unit.
k) The Contractor to provide a BAS system that is compatible with the DGS monitoring
system.
l) Indoor pool HVAC system shall be d esigned and installed to comp ly with all
requirements from the applicable codes, including but not limit ed to
IECC/ASHRAE/ANSI/IESNA codes.
m) Indoor pool HVAC system shall be designed to sustain proper hea ting, cooling and
moisture levels.
n) Pool HVAC system shall have an o perable system that’s easily ac cessible to DPR staff
upon Turnover of the project.
o) Pool storage/chemical room sha ll have a double door accessible entry for routine
chemical deliveries. Entry must be adjacent to a service road for easy vehicular access.
p) All structural steel within the pool area shall be protected by high-performance coatings.
q) All steel decks shall be galvanized and receive shop applied primer.
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r) All partitions within the pool e nvironment shall receive high-p erformance coatings,
including areas above ceilings.
s) If applicable, the Design-Builder shall obtain Chapter 2 and Chapter 3 air quality permits
from the Department of Energy and Environment (“DOEE”) prior to the installation of
a boiler, stationary generator, or any other source of emissions subject to those rules.
Outdoor Lighting: Provide outdoor lighting for outdoor spaces, including pedestrian paths and
vehicular paths as required.
Indoor Requirements:
a) Facility shall include locker ro oms, family changing rooms, bat hrooms, pool
storage/chemical room, lifeguard office room, mechanical room, electrical room, and
lobby.
b) Facility shall include a readily accessible section to house life jackets.
Utilities: Utility installation, including electric, gas, and storm-wate r management as required
by the District Department of Energy & Environment.
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, Pool Name signage.
Interior Signage: Provide all labor and materials to furnish and install standar d wayfinding
signs. The Design-Builder shall need to consider all DGS and DPR Building Standards, standard
graphics, and language for interior wayfinding signage.
Security System: Provide design-build services to coordinate with DGS Protecti ve Services
Division and OCTO to incorporate site security, low voltage and communications requirements.
The Design-Builder shall consider OCTO requirements.
Americans with Disabilities Act:
The Design-Builder shall provide appropriate means for those wi th disabilities to access the
site.
The Design-Builder shall meet 2010 Americans with Disabilities Act (“ADA”) standards and
the requirements of the Office of Disability Rights. The work m ust comply with current
accessibility guidelines and criteria; American Disabilities Ac t/American 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.
Section 2.5.1 Project Sustainability Requirements
The Project is required to meet all local and national codes, i ncluding but not limited to DC
Energy Conservation, DC Green C onstruction Code, the Green Buil ding Act, etc. The Project
will also be required to meet the recent amendment to the Green Building Act, the Greener
Government Building Amendment of 2022, which went into effect o n March 10, 2023. In
addition to the required codes, the project is required to meet the following:
Section 2.5.1.1 LEED Construction Code requirements: The Project shall be designed
in such a way to incorporate, at a minimum, LEED Silver princip les. Evaluation will be
required to determine if the le vel of construction qualifies fo r LEED certification. The
Design-Builder will be responsible for applying for and achieving LEED Silver Certification.
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Section 2.5.1.2 U.S. Green Building Council LEED® Silver: DGS has committed to a
minimum target of U.S. Green Bui lding Council LEED® Silver Cert ification 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.
Section 2.5.1.3 Solar-Readiness Requirements: The Design-Builder shall make the
Project solar-ready by running el ectrical conduit for future so lar locations on roofs and/or
facades and building steel canopies to support solar in the fut ure in consultation with the
Department’s solar owner representative. Solar panel and invert er material and labor costs
shall remain outside of the Design-Builder’s scope.
Section 2.6. Contracting Officer’s Technical Representative and Program Manager
The Department has engaged a C ontracting Officer’s Technical Re presentative (“COTR”) and
Program Manager to provide certain program management functions. Such COTR and Program
Manager shall, at all times, be acting solely for the benefit o f the Department, not the Design-
Builder. The Design-Builder here by acknowledges and agrees that only a duly authorized and
designated Contracting Officer shall have the authority to direct the Contractor to start the Project
or to issue change orders, cont ract modifications, or change di rectives on the Department’s
behalf. The COTR and Program Manager shall not have the authority to modify any of the rights
and obligations of the Department or the Contractor pursuant to the proposed Contract, or to
issue change orders, contract m odifications, or change directiv es. As of the date that this
Agreement is executed, the Department’s duly authorized Contracting Officer(s) is/are set forth
in Exhibit H.
Section 2.7. General Description of Design-Builder’s Duties.
Generally, the Design-Builder shall perform the services in a professional workmanlike manner.
The Design-Builder shall supply and furnish at the location where the Work is to be performed
all design service, labor, materials, equipment, tools, services, and supervision, and shall bear all
items of expense, necessary to complete and satisfactorily perform this Agreement, except such
items that the Department, in this Agreement, specifically agre es to supply or furnish to or for
the use of Design-Builder. Any la bor, materials, equipment, too ls, services, or supervision not
specifically described in this Agreement, but which may be fairly implied as required thereby or
necessary to properly complete the Work, shall be deemed within the scope of work (“Scope of
the Work” or “SOW”) and shall be provided by the Design-Builder at Design-Builder’s sole
expense.
The Design-Builder will be required to work with the Department and the Project stakeholders
through a collaborative design process to advance the programma tic to a fully realized Project
in accordance with the available Project budget. The Design-Bui lder will be required to: (1)
engage in extensive pre-design and preconstruction efforts to ensure that the design is developed
in a manner consistent with the Department’s goals for the Proj ect (e.g., programmatic,
budgetary, schedule and quality); (2) to develop a comprehensiv e Project phasing; (3) to solicit
competitive trade bids for the c onstruction work and to develop an acceptable GMP and
corresponding scope and schedule for the work; and (4) to implement the requisite construction
and other work necessary no late r than the Substantial Completi on Date. The Design-Builder
will be required to provide move coordination and logistics sup port. The Design-Builder shall
be responsible for all items of cost except for those items set forth in Section 9.7 of this
Agreement.
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Section 2.8. Warranties and Representations
a) 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 su ch disclosures,
representations, warranties, and certifications are true and correct.
b) If any disclosure, representation, warranty or certification th e Design-Builder has made
or makes pursuant to the RFP or the Agreement, including, witho ut limitation,
representations concerning the D esign-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.
c) 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, Su bcontractors, Sub-Subcontractors, material suppliers, laborers,
and agents and employees of the Subcontractors, Sub-Subcontract ors, material suppliers, and
laborers performing or supplying Work in connection with the Project.
Section 2.10 Building Information Modeling. Building Information Modeling (“BIM”) is
required to be used throughout the lifecycle of the Project, in cluding all Project phases from
Project planning and concept de sign through construction, as-bu ilt, and into facilities
management. The BIM requirements are provided as Exhibit S. It is expected by the Department
that all team members are to be committed to the use of BIM in the Project, share their ideas of
BIM expertise with the team, provide BIM data as requested by o ther team members, look for
cost savings and schedule improvements during the entire Project duration, and endeavor to leave
as a legacy a fully updated, as-built, facility management ready building information model.
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DESIGN-BUILDER'S DESIGN & PRECONSTRUCTION SERVICES
Section 3.1 Preconstruction Services.
During the Design & Preconstructio n Phase, the Design-Builder s hall provide such design and
preconstruction services as are necessary to properly advance t he Project. 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 Client Agency, the Department and its Program Manager; (ii ) obtain bids from trade
subcontractors to perform the wor k described in the Design Deve lopment Documents and
provide bid tabulations to the De partment; (iii) engage in any Value Engineering and scoping
exercises necessary to return the cost of the work to the Proje ct Budget; (iv) engage in
preconstruction activities, inclu ding identifying any long-lead items; (v) develop a GMP
proposal for the Project; and (vi) enter into a GMP for the Pro ject. Throughout the Design &
Preconstruction Phase, the Design-Builder shall schedule and at tend regular meetings with the
Department, the Program Manager a nd the Architect. A list of p reconstruction deliverables is
set forth in Exhibit C.
Section 3.1.1. Init ial Deliverables. The Design-Builder’s initial task will be to perform a
feasibility study with a design narrative to a complete schematic design, develop a phasing plan
and budget for the Project. As pa rt of this effort, the Design- Builder shall prepare and provide
the following initial deliverables:
Section 3.1.1.1 Baseline Schedule. Within twenty-one (21) days after the Preconstruction
NTP is issued, the Design-Builder shall prepare and submit a Ba seline 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 incorpo rate such adjustments to
the Baseline Schedule as may be reasonably requested by the Dep artment. The Baseline
Schedule shall be prepared in a c ritical path method (“CPM”) in a sufficient level of detail
to permit the Department and the Design-Builder and any other a ffected parties to properly
plan the Project. The Baseline S chedule shall show: (i) key des ign milestones and bid
packages; (ii) release dates for long lead items; (iii) release dates for key subcontractors; and
(iv) Substantial and Final Completion Dates. The Baseline Schedule shall include durations
and logic ties for those buildin g systems that the Design-Build er is recommending for
replacement. The Baseline Schedul e must also be submitted in Pr imavera 6 native format
and shall be updated by the Design-Builder, at a minimum, on a bi-weekly basis.
The Project schedule is attached hereto as Exhibit B.
Section 3.1.1.2 Concept Design. The first phase of the Project will include the preparation
of a concept design and program development. No later than thre e (3) weeks after the
Preconstruction NTP is issued, the Design-Builder shall prepare and submit a proposed
concept design for the Project. The concept design shall conta in at least the level of detail
contemplated in standard industr y practice and shall contain su ch detail as is typically
required for a concept design under standard industry practice. The Department shall have
the right to disapprove the concept design submittal for any reason. Following review of the
concept design submission by DPR and the Department, the Design -Builder shall make
revisions to the concept design submission as necessary to inco rporate comments, feedback
and other direction provided by DPR and the Department. The De sign-Builder’s pricing
shall a ssume tha t su ch revisions w ill be r equir e d, a nd suc h revisions shall not entitle the
Design-Builder to additional comp ensation. The concept design s ervices shall include but
are not limited to the following:
a. Conduct meetings with DGS repr esentatives to confirm program a n d v e r i f y
facility requirements.
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b. Conduct community focus meeting to develop programming and s olicit input.
c. Conduct life safety/building c ode analysis to verify compliance of design with all
current applicable codes recently adopted and/or adopted by Was hington, DC,
including the latest District of Columbia Building Code, the la test District of
Columbia Green Construction Code, the latest District of Columb ia Energy
Conservation Code, the latest Dis trict of Columbia Fire Code, t he latest District
of Columbia Mechanical Code, and the latest District of Columbi a Plumbing
Code.
d. Participate in Value Engineering workshops, as required, wit h the DGS
representatives.
e. Prepare and submit Environmen tal Impact Screening Form (“EISF”).
f. Survey existing site to conf irm locations and types of hazar dous materials to be
abated or mitigated.
g. Conduct a complete survey of the site as required to success fully complete
renovation. At a minimum, the survey shall include existing condition of the site
and documentation of existing condition. The Design-Builder shall be responsible
for the collection, assessment, and verification of existing conditions.
h. Confer with the Department’s IT representatives/consultants to verify
technological requirements for the Project.
i. Renovation and new constructi on should be designed to qualify for LEED Silver
certification.
Section 3.1.1.3 Prelimin ary Budget Estimate. Concurrently with the delivery of the
concept design, the Design-Builder shall submit a detailed cost e s t i m a t e o f t h e p r o p o s e d
design (such estimate, the “Preliminary Budget Estimate”). The Preliminary Budget Estimate
shall be prepared on a “system” b asis that identifies the key b uilding systems or functions
and allocates an estimated cost for each such system. The Desig n-Build Fee, lump-sum
general conditions cost, and contingencies shall be broken out in separate line items. The
primary purpose of the Preliminary Budget Estimate is to aid th e Department and DPR in
understanding the costs associated with key elements of the Pro ject to better prioritize and
manage the use of the funding allocated to this Project.
Section 3.1.1.4 Baseline Budget and Program. The Department shall provide the Design-
Builder with a baseline budget and program and comments on the concept design. Such
approval shall be provided (or signed by) the Department’s Depu ty Director for Capital
Construction (the “Deputy Director”). In the event the Design-Builder does not receive such
approval within fourteen (14) days after submitting the Preliminary Budget Estimate, it shall
so advise the 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 ris k and will be responsible for any redesign costs associated
with budget revisions.
Section 3.1.1.5 Construction Management Plan. The Design-Builder shall submit a draft
of its construction management and Project phasing plan (“Construction Management Plan”)
within fourteen (14) days after the Preconstruction NTP is issued to include, but is not limited
to, noise control, hours for construction and deliveries, truck routes, trash and debris removal
plan, traffic and parking contro l, communications procedures, e mergency procedures,
quality control procedures, dust control, public street cleaning and repair, planned occupancy
o f p u b l i c w a y s , e r o s i o n c o n t r o l , tree protection plan, vibratio n monitoring, existing and
adjacent building surveys plan, temporary fire protection measu res, Project signage, pest
control, construction staging plan, and construction logistics plan.
Section 3.1.1.6 Additional Preconstruction Services. In addition to those items enumerated
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above, the Design-Builder shall provide such preconstruction se rvices as are necessary to
properly advance the Project. These services shall include, but are not limited to, scheduling,
estimating, shop-drawings, the ordering of long-lead materials, condition assessments,
conservator studies, ar cheological studies, recommended testing , additional geotechnical
testing, and monitoring of historic assets.
Section 3.1.1.7 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 preconstruc tion support services to minimize the potential for cost
overruns, schedule delays, or the need for extensive Value Engineering/re-design late in the
Project and that the deliverables required under this Section 3.1 are key to identify the value
of such services. In the event the Design-Builder fails to deli ver any of the deliverables
required in Section 3.1 (and unless such failure is the result of any event of Force Majeure),
the Design-Builder shall be subje ct to a disincentive fee in th e amount of Seven Thousand
Five Hundred Dollars ($2,500.00) plus Five Hundred Dollars ($250) per day after receiving
written notice from the Contracting Officer of failure to submit such deliverables.
Section 3.1.2 (Reserved)
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 s hall use commercially reasonabl e best efforts to ensure that:
(i) the design evolves in a manner that is consistent with the Department’s budget and
programmatic requirements, as the same were defined and established by the Department at the
end of the concept design; (ii) the design work is properly coo rdinated; and (iii) the required
design deliverables are produced o n or before the dates contemp lated 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 c oncept design and is
consistent with the Department’s schedule, budget, and programmatic requirements. The
schematic design shall contain at least the level of detail con templated in industry best
practices for a schematic design. The design submittal shall sp ecifically identify any
deviations from the approved conc ept design and shall explain t he rationale, cost, and
time implications associated with such deviation. The Department shall have the right to
disapprove the schematic design submittal for any reason.
Following a review of the schematic design submission by 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-Build er to additional
compensation.
In general, the Design-Builder shall be required to undertake the following tasks during
this phase:
a) Further develop conceptual p lans and incorporate design changes.
b) Conduct community meetings to solicit input and keep constit uents informed
throughout the developme nt of the Project.
c) Prepare necessary presentati on materials (renderings and mod els) to
communicate design intent and obtain approval of design direction.
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d) Continue development of phasi ng plan based on the approved C D, to
accommodate the Project’s needs.
e) Submit an early estimate for the new construction with a mag nitude of error of
Not-to-Exceed +/- 10% of the Project hard cost budget.
f) If it is necessary for Project early inquiry with Public Utility Companies PEPCO
and Washington Gas as well as Verizon should be conducted.
g) Conduct Department of Energy a nd Environment (“DOEE”), Depar tment of
Buildings (“DOB”), District Depar tment of Transportation (“DDOT ”), and DC
Water Preliminary Design Review meetings.
h) Renovation and new constructi on should be designed to qualify for LEED Silver
certification.
Section 3.2.2 Schematic Budget Update. Concurrent with submission of the schematic
design, the Design-Builder shall submit a budget update. The bu dget update shall be
submitted in the same format a s the preliminary budget estimate and shall show
variations from the preliminary budget estimate. The Design-Builder shall include a cost
estimate and value engineering analysis, and a detailed recomme ndation for Project
savings (even if the Project is not over budget). To the extent the budget update shows
an overrun from the approved budget, the Design-Builder shall submit value engineering
(not scope reductions, but true value engineering that allows the design to meet all Project
requirements within budget) sugge stions that would return the P roject to budget. Only
the Department shall have the au thority 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 Des ign-Builder shall
prepare a memorandum identifying key construction concerns rela t e d t o t h e P r o j e c t .
Such memorandum shall: (i) assess the constructability issues r elated 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 p roducts; 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 D esign-Builder to commence Early S t a r t W o r k ,
including but not limited to hazardous material abatement, inte rior demolition,
geothermal, below grade work, utility work, or other early acti vities, 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 i n 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 Do cuments that is a
logical development of the appro ved schematic design and is con sistent with the
Department’s schedule, budget, a nd programmatic requirements. T he Design
Development Documents shall contain at least the level of detail contemplated in industry
best practices for Design Develo pment Documents. The design sub mittal shall
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specifically identify any deviations from the approved schematic design and shall explain
the rationale and cost implicati ons associated with such deviat ion. The Design-Builder
shall include a cost estimate and Value Engineering Analysis, a nd Detailed
Recommendation for Project savings (even if the Project is not over budget). The Design-
Builder shall provide maintenance and repair cost services, whi ch include conducting a
40-year life cycle cost analysis, which includes a detailed lis t of replacement costs,
maintenance costs, an estimate of repair costs, anticipated energy costs, and a list of other
relevant life cycle costs. The D esign-Builder shall further ref ine and expand upon the
Maintenance and Operations Plan that was s ubmitted in the schematic submission. The
Department shall have the right to disapprove the Design Develo pment Documents
submittal for any reason.
The specific services required during this phase are:
a) Select and draft outline specifications for materials, syste ms, and equipment.
b) Develop detailed and dimensione d plans, wall sections, build ing sections, and
schedules.
c) Complete code complianc e analysis and drawing.
d) Confirm space-by-space equipment layouts with representative s from DGS.
e) Conduct follow-up meetings w ith agencies as required.
f) Coordinate furniture, fixture s, and equipment requirements (“FF&E”).
g) Present the design to the Co mmission of Fine Arts (“CFA”), Historic Preservation
Office (“HPO”), Office of Planning (“OP”), and other regulatory a g e n c i e s a s
required.
h) The Design-Builder is respons ible for coordinating with sub- consultants for
storm water management and other specialized work, as necessary.
i) Renovation and new constructi on should be designed to qualify for LEED Silver
certification.
Section 3.2.5 Permits. The Design-Builder shall be r esponsible 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-Buil der shall update the
Department with the status of ea ch permit that is required for the Project. The Design-
Builder shall engage such permit expediters as the Design-Build er deems necessary or
appropriate in light of the Proj ect’s schedule. The Design-Buil der shall participate in
DOB’s Velocity accelerated plan reviews and permit approval pro gram as part of the
permit allowance included in this Contract. The Design-Builder shall provide the resources
necessary to support these requirements.
Section 3.2.6 Entitlements . The Design-Builder shall prepare such materials and make
such presentations as are necessa ry to obtain the required land use and entitlement
approvals. Approvals may be required from (i) the Office of Zoning, (ii) Office of Planning
(“OP”), and (iii) the Commission of Fine Arts (“CFA”). Given the nature of the work, it is
not envisioned that such approvals will require extensive hearings or submissions.
Section 3.2.7 Mid-Point Construction Document Review. Based on the approved Design
Development Documents and any ap proved Value Engineering, the D esign-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 rea ches a point where it is
approximately Fifty percent (50%) complete, the Design-Builder shall prepare and submit
a progress printing to the Department for its review and comment.
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Section 3.2.8 Construction Document Review & Coordination.
The Design-Builder shall complete each of the Construction Docu ments packages in a
manner that addresses the concerns raised by the Department dur ing the review
contemplated in Section 3.2.7 for such package. The Design-Buil der shall issue one or
more set of permit documents to the Department for its review and approval (“Permit Set”).
The Permit Set shall represent the further progression of the a pproved DDs together with
any value engineering strategies approved by the Department. Th e Permit Set shall be
Construction Documents progressed to approximately 90% completi on of those required
in a traditional Design/Build delivery method. With regard to e ach such set, the Design-
Builder shall highlight (or bubble) any aspect of the design th at represents a material
deviation from the approved Desi gn Development Documents and sh all address in a
narrative format the impact, if a ny, such departure shall have on the Project’s aesthetics,
functionality or performance. The Department shall have the rig ht to disapprove the
Construction Documents for any r eason. If the Department disapp roves the Construction
Documents, the Design-Builder will not be entitled to any addit ional compensation. If,
however, the Department disapproves a Construction Document that is a logical extension
of the approved Design Development Documents, the Design-Builde r will be entitled to
an adjustment to the GMP and/or t he Agreement schedule unless s uch 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 re vised design that complies
with the GMP drawings and specifications (“Drawings and Specifi cations”) and without
any entitlement to an increase in the GMP or an adjustment of the Agreement schedule. In
the event the Department does not approve a document within fou rteen (14) days after
issuance, such document shall be deemed approved unless the Dep artment advises that
such document is still under revi ew. In the event the Departmen t’s review takes longer
than fourteen (14) days, such additional review shall be deemed a change event.
During the Permit Set phase, the Design-Builder shall complete the following tasks:
a. Continue to prepare detailed and coordinated drawings and specifications.
b. Prepare application and submit documents for building permits.
c. Work with the Department’s third-party plan reviewer to review the documents for
permit document submission.
d. Upload all documents to the DOB’s permit document review website in accordance
with their instructions.
e. Prepare and submit early-releas e excavation, foundations, concr ete and steel
packages, if
f. Prepare and submit DC Water permit application packages (all pe rmit types that
may be required) and DOEE Storm Water Management and Green Area Ratio
packages for review and approval.
g. Prepare DDOT public space modifications package for submission to and approval
by DDOT Public Space Committee, participate in Committee meetin gs as
necessary.
h. Prepare all traffic control plans required to obtain relevant DDOT permit approvals
at all stages of the Project, as required.
i. Renovation and new construction s hould be designed to qualify f or LEED Silver
certification.
In addition, the Design-Builder shall be required to (a) define , clarify, or complete the
concepts and information containe d i n t h e P e r m i t S e t ; ( b ) c o r r ect design errors or
omissions, ambiguities, and inconsistencies in the Permit Set ( whether found prior to or
during the course of construction); and (c) correct any failure of the Architect to follow
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written instructions of the Depa rtment during any phase of desi gn services or the
construction of the Project provided they are compatible with industry standards.
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 for the Project. The Design-Builder shall
monitor the permit process and shall incorporate any changes or adjustments required by
the Code Official. The Design-Builder shall also issue any such changes to the Department
for its review and approval. In this submittal, the Architect 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 de parture shall have on the
Project’s aesthetics, functionality or performance. Subsequent to obtaining the necessary
building permits, the Design-Buil der shall prepare one 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 an d approval. In this
submittal, the Design-Builder sha ll highlight (or bubble) any a spect of the design that
represents a material deviation from the permit set documents a nd shall address in a
narrative format the impact, if a ny, 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 o therwise 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 D esign-Builder shall
coordinate and work with the Project Manager and third-party pl an reviewer during the
building permit process.
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Article 4 - FORMATION OF GMP PROPOSAL
Section 4.1. General.
During the Design & Preconstruction Phase, the Design-Builder shall cause the Design-Builder’s
Architect to prepare the GMP Basi s Project Documents. Based upo n the GMP Basis Project
Documents, the Design-Builder shall propose a GMP (referred to as the “GMP Proposal”) which
shall be submitted in accordance with this Article. The Design- Builder acknowledges and
understands that the GMP Basis Project Documents will be incomplete at the time it submits its
GMP Proposal. Although complete c onstruction Project Documents will not be available and
many details will not be shown on GMP Basis Project Documents o r 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 o f the Project. If the Design-
Builder’s GMP Proposal is acceptab le to the Department, it shal l be memorialized in the form
of an amendment to this Agreemen t (such amendment, the “GMP Ame ndment”). Such
amendment shall be in the form of Exhibit L attached hereto.
A s p a r t o f t h e G M P A m e n d m e n t , t h e D e s i g n - B u i l d e r s h a l l c e r t i f y t h a t t h e G M P e s t a b l i s h e d
thereby: (i) contains sufficient amounts to perform all Work necessary for the Final Completion
of the Project; and (ii) contains sufficient amounts to provide and construct any items or facilities
that are not contained in the GMP Basis Project Documents, but which are necessary for a fully
functioning facility that meets the programmatic requirements e stablished 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 B asis Project Documents, but
which are a logical development of the design intent reflected in the GMP Basis Project
Documents, for an amount not to exceed the GMP.
Section 4.2 Review of GMP Basis Project Documents.
The Department has selected the Design-Builder, in large part, because of its special expertise
in constructing similar projects. Before submitting its GMP, the Design-Builder shall review the
GMP Basis Project Documents for accuracy, constructability, and completeness and shall bring
such deficiencies to the attention of the Department and shall cause its Architect to address any
such deficiencies. To the extent that any such deficiencies in the GMP Basis Project Documents
could have been identified by suc h 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 includ e a contingency, which shall b e a sum established by the
Department and the Design-Builde r to cover, among other things costs necessary to address
scope expansion that is a logical development of the design, issues arising from or as a result of
deficiencies in the GMP Basis Project Documents and other costs which are properly
reimbursable as Cost of the Work but not the basis for a Change Order, such as costs that were
not reasonably foreseeable as of t he effective date of this Agr eement, including such items as
emergencies, unforeseeable changes in market conditions for mat erials or labor, or subsurface,
soils or site conditions that were neither known nor reasonably discoverable as of the effective
date of the Agreement (the “Contingency”). During the Construction Phase, the Design-Builder
shall keep the Program Manager and the Contracting Officer info rmed as to the status of the
Contingency and shall, at a minimum: (i) advise the Program Man ager and Contracting Officer
when draws reach 3% upon the contingency in a timely manager; a nd (ii) provide the Program
Manager and Contracting Officer w ith running status of the Cont ingency balance at least once
every two (2) weeks.
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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. At the time of the completion of the schematic design, the Design-Builder shall provide
to the Department for its review and approval a written submiss ion on the proposed bidding
procedures. Such procedures sha ll include: (i) a list of propo sed trade packages; (ii) a list of
trade subcontractors that will be invited to bid on each such p ackage; and (iii) a narrative
description of the process. At least three (3) potential subcontractors shall be identified for each
trade package. A copy of this deliverable must be submitted to both the Program Manager and
the Contracting Officer. In the event the Department does not approve the proposed bidding
procedures within fifteen (15) days after its receipt, such pro cedures shall be deemed approved
unless the Department advises that such is still under review.
Section 4.4.2 Manage Bidding Process. Following the Department’s approval of the Design
Development Documents, the Desi gn-Builder shall manage the trad e bidding process in
accordance with the approved bi dding procedures and shall use c ommercially reasonable best
efforts to solicit at least three (3) qualified and bona fide bids for each trade package that has an
expected value in excess of One Hundred Thousand Dollars ($100, 000). Trade packages shall
not be parceled, split or divided to avoid the $100,000 threshold. In addition to the information
normally required in such bids, the Design-Builder shall also r equire subcontractors to provide
an estimate of the percentage of labor hours performed in compl eting the subcontracted work
that will be performed by District residents. The Design-Build er shall carefully document its
procedures for making available bid packages to potential bidde rs, the contents of each bid
package, discussions with bidders at any pre-bid meetings, bidd ers’ 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 req uirements set forth in the
Agreement, including, without lim itation, affirmative action re quirements and subcontracting
requirements.
Section 4.4.3 Bid Tab. The Design-Builder shall provid e the Department with an analy sis of
the bids received and as a copy of each such bid. To the extent that the Design-Builder’s award
recommendation is based on scopi ng adjustments, the Design-Builder shall clearly identify the
scoping adjustment and the need for such adjustments. 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 e xtent that the Design-Builder’s
award recommendation is based on scoping adjustments, the Desig n-Builder shall clearly
identify the scoping adjustment and the need for such adjustmen ts. 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 Departmen t’s representatives to discuss
any Value Engineering and changes in the scope necessary to ens ure that the Department’s
Page 25
schedule and programmatic require ments are met and that the bud get is not exceeded. The
Design-Builder shall cause the Design-Builder’s Architect to implement and price any approved
Value Engineering strategies.
Section 4.6 Basis of Guaranteed Maximum Price.
Based on the trade bids, the De sign-Builder shall submit a GMP proposal to the Department.
The GMP Proposal shall include the following elements:
a) A list of drawings, specifications, addenda, general, supplementary, and other conditions
on which the GMP is based.
b) A list of unit prices and allowance items and a statement of their basis; provided, however,
that only such allowances as are agreed to by the Department shall be included.
c) Assumptions and clarifications made in preparing the GMP Proposal, noting in particular
any exclusions. The assumptions and clarifications shall take p recedence over the
drawings and specifications. The Design-Builder shall prepare a separate memorandum
that highlights any differences between the then-approved drawings and the modifications
made in the assumptions and clarifications ( Exhibit M1 ). Such memorandum shall
specifically address any changes in the Project aesthetics, functionality, or performance.
d) The proposed GMP, including a statement of the detailed cost estimate organized by trade
categories, allowances, contingency, and other items and the fees that comprise the GMP.
e) An update to the Project’s sche dule to which the Design-Builder will agree to be bound.
This update shall be prepared in the same level of detail and i n the same manner as the
Baseline Schedule, and without any change to the Substantial and Final Completion Dates
unless approved by the Department’s Contracting Officer.
f) A subcontracting plan setting fort h the names and estimated dol lar volume of the work
t h a t w i l l b e p e r f o r m e d b y L o c a l , S m a l l , a n d D i s a d v a n t a g e d B u s i ness Enterprises
(“LSBDEs”), as certified by the Department of Small and Local B usiness Development
(“DSLBD”), upon which the GMP is based.
g) A summary of Capital Cost vs Operating Cost Eligibility.
h) A list of additive alternates or deductive alternates with defined executable dates, if any.
i) GMP and any Council Package cost estimate summary shall be brok en down into three
categories as applicable: New Construction, Renovation, and Sitework.
j) A list of all active contracts that the vendor holds with the District.
k) Campaign Finance Reform Act, Contractor Self-Certification Form.
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 discov ers 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. In the event the Department an d the Design-Builder are unable
to agree upon the GMP or the schedule for the Project, the Depa rtment shall have the right to
terminate the Agreement and assume any trade subcontracts held by the Design-Builder. In such
an event, the Design-Builder shall only be entitled to Fifty percent (50%) of the Preconstruction
Fee.
Page 26
Section 4.9 GMP Amendment.
In the event that an acceptable GMP Proposal is not developed a nd a GMP Amendment is not
executed, the Agreement will be terminated. In the event the Ag reement is terminated pursuant
to this Section, the Department shall be free to use any of the Project documents and information
developed through the date of termination to retain a new contractor to complete the Project. In
such an event, the Design-Builder shall only be entitled to Fif t y p e r c e n t ( 5 0 % ) o f t h e
Preconstruction Fee.
Section 4.10 Assignment Upon Failure to Reach GMP.
In the event that the Department and the Design-Builder are una ble to agree upon a GMP, the
Department shall have the right to terminate this Agreement, and if requested by the Department,
the Design-Builder shall assign any trade subcontracts and its agreement with the Design-
Builder’s Architect to the Department upon such terms and conditions and at the time requested
by the Department. In such an event, the Design-Builder shall forfeit fifty percent (50%) of the
Preconstruction Fee.
Section 4.11 Certification.
As part of the GMP Proposal submitted in accordance with this A rticle, the Design-Builder
agrees to specifically acknowledg e and declare that the Contrac t Project Documents are
sufficiently complete to have enabled the Design-Builder to det ermine 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 w ith 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.
Section 4.12.1 Abatement, Select ive Demolition and Early Construction. Once the
concept design has been approved, the Department may release th e Design-Builder to
commence hazardous material abatement and interior demolition, or other early
activities, as applicable. It is envisioned that this work may be released in advance of
the GMP.
Section 4.12.2 Long Lead Materials. The Department will release funding for long-
lead items once the Design Devel opment Documents have been appr oved. 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 Reserved
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Article 5 - CONSTRUCTION PHASE
Section 5.1 General.
The Construction Phase shall not commence until the Department issues a Notice to Proceed for
Construction Phase Services. The Design-Builder shall, through its Subcontractors or, with the
written consent of the Departmen t, 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 t his Agreement. Without
limitation, the Design-Builder shall provide all of the labor, materials, tools, equipment,
temporary services, and facilities necessary to complete the Pr oject 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 unuse d, unless otherwise specified, a n d s h a l l b e f r e e o f
manufacturing or other defects.
The construction phase services shall include, but are not necessarily limited to:
a) Manage all aspects of the demolition and new construction of the Project.
b) Manage weekly progress meetings. Site visits are included in base fee.
c) Review and process shop drawing submissions, RFI’s, etc.
d) Prepare meeting notes and records of decisions/changes made.
e) Conduct pre-closeout inspections.
f) Review closeout documents for com pleteness, such as As-Built Dr awings based on the
Design-Builder’s red line drawing s and/or coordinated set devel oped during the
subcontractor coordination process. As-Built Drawings should be transmitted to DGS in
hard copy, PDF, and CAD formats.
g) Upload all documents, plans, meeting minutes in the DGS Project Team system for
review and approval for all pre -construction, construction and post construction
activities.
Based on the approved Drawings and Specifica tions, the Design-B uilder 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 approved by the Department
and shall provide all labor, materials, insurance, bonds and eq uipment necessary to fully
complete the Project in accordance with the drawings, specifica tions, 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 5.1.2 Compliance with Other Requirements. In performing the Work, the
Design- Builder and its subcontractors shall comply with all of the applicable
provisions of the Standard Contr act Provisions and the requirem ents set forth into
this Contract.
Section 5.1.3 Supervision. Throughout the Work, the cons truction office shall be
managed by personnel competent to oversee the Work at all times w h i l e
Page 28
construction is underway. Such p ersonnel shall maintain full-ti me, on-site
construction supervision and provide daily inspections, quality control, monitoring,
coordination of various trades, record drawings, and a daily work log.
Section 5.1.4 Weekly Progress Meetings. Throughout the Work, the Design-
Builder shall conduct weekly progress meetings following the De sign-Builder’s
generated agenda with the Depart ment’s PM and key trade subcont ractors. The
Design-Builder shall draft and circulate the meeting minutes on a weekly basis.
Section 5.1.5 Move-in Assistance. The Design-Builder shall assist DPR in
relocating FF&E, as applicable. The GMP shall include an allowance and Scope of
Work for these activities.
Section 5.1.6 Delay Liquidated Damages. In addition to the liquidated damages
provided for in Section 2.2.1.8 relating to deliverables, if the Scope of Work is not
substantially complete by the Substantial Completion Date, the Design-Builder shall
be subject to liquidated damages in an amount of Two Thousand F ive Hundred
Dollars ($2,500) plus Two Hundred and Fifty Dollars ($250) per day. These
damages shall not apply if the delay is the result of Force Maj eure and the Design-
Builder otherwise complies with t he provisions set forth in the Standard Contract
Provisions.
Section 5.1.7 Salvage Value 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 D epartment’s
permission to proceed.
Section 5.1.8 Protection of Existing Elements. The Design-Builder shall protect
all existing features, public utilities, and other existing str uctures during
construction. The Design- Builde r shall protect existing site i mprovements, trees,
and shrubs from damage during construction. Protection extends to the root systems
of existing vegetation. The Design- Builder shall not store mat erials or equipment,
or drive machinery, within the drip line of existing trees and shrubs.
Section 5.2 Unrenovated Portions of the Structure.
In constructing the Project, the Design-Builder shall ensure that unrenovated portions of existing
structures, if any, including, but not limited to, the mechanical, plumbing, electrical systems, and
other building systems, are not adversely affected. All unrenov ated portions of the structures
should function, at a minimum, at the level of functionality that existed immediately prior to the
construction of the Project. If any unrenovated portion of the Project functions at a lower level
of functionality as a result of the Design-Builder’s Work, the Design-Builder shall be back-
charged the costs incurred by the Department in addressing the decreased functionality.
Section 5.3 Subcontracting and Administration
Section 5.3.1 It is contemplated that all or substantially all of the construction of the Project will
be carried out by trade subcontractors and that those trade subcontracts will be awarded through
the competitive bid process contemplated in Section 4.4. The Design-Builder shall enter into a
written agreement with each subcontractor. The trade subcontrac tors will be underwritten
contract with the Design-Builder. All subcontracts and agreements for the supply of equipment
or materials awarded for the Project shall be fixed-price contr acts unless othe rwise expressly
Page 29
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 b e awarded on such other basis
subject to the Department’s consent as to the bidding procedure s and economic structure with
regard to those packages. The Design-Builder and its affiliate s may not carry out trade work
with its own forces without the D epartment’s written permission , which permission may be
withheld or conditioned by the Department in its sole and absolute judgment.
Section 5.3.2 In addition to the open book repo rting requirements set forth in Section 5.10, the
Design-Builder shall provide to the Department a copy of all qu otes or proposals submitted by
potential subcontractors.
Section 5.3.3 The Design-Builder shall deve lop a purchasing strategy to addr ess the expedited
schedule and conditions of this Project and shall include appro priate provisions in the
subcontracts to minimize the cost impact associated with such c onditions. Such strategies may
include but are not limited to: (i) obtaining from subcontracto rs unit price quotes for typical
coordination items; (ii) setting aside allowances for coordinat ion work; and (iii) such other
techniques as may be employed by the Design-Builder.
Section 5.3.4 The Design-Builder shall carefully document its procedures for making available
bid packages to potential bidders, the contents of each bid pac kage, 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 indepe ndently confirm the Design-
Builder’s adherence to all requirements set forth in the Agreement including, without limitation,
affirmative action requirements and subcontracting requirements.
Section 5.3.5 The Department may, in its sole discretion, reject any or all bids and proposals
received for any bid package, and may require the Design-Builder to obtain new or revised bids
or proposals.
Section 5.3.6 The Department may, in its sole discretion, direct the Design- Builder to accept a
bid from a qualified bidder other than the bidder to whom the Design-Builder recommends award
of a subcontract or supply agreement. If the Department choose s this option, it shall issue a
Change Order to the Design-Builde r for any difference between t he cost of the subcontractor
supply agreement awarded and the bid price of the Subcontractor or supplier recommended by
the Design-Builder, but without any adjustment to the Design-Build Fee.
Section 5.3.7 The Department must approve a ll subcontractors and suppliers. The Department
may elect to review the form of any subcontractor agreement with a material supplier to ensure
that such contract incorporates the contractual provisions required by this Agreement.
Section 5.3.8 The Design-Builder must contract for the provision of all serv ices and materials
for the Project (other than Self-P erformed Work which must be a uthorized in advance and in
writing by the Department) via w ritten subcontracts or, for con tracts requiring the provision of
materials or equipment only, and not labor, via written supply agreements. All subcontracts and
supply agreements shall include the following provisions:
Section 5.3.8.1 that, to the extent of the work or supply within the agreement’ s scope,
the Subcontractor or supplier is bound to the Design-Builder fo r the performance of all
obligations which the Design-Builder owes the Department under the Agreement;
Page 30
Section 5.3.8.2 that the Subcontractor or supplier is not in privity with the D epartment
and shall not seek compensation directly from the Department on any third-party
beneficiary, quantum meruit, or unjust enrichment claim, or otherwise, except as may be
permitted by any applicable mechanic’s lien law;
Section 5.3.8.3 that the Department is a third-party beneficiary of the subcont ractor
supply agreement, entitled to enforce any rights thereunder for its benefit;
Section 5.3.8.4 that the subcontractor or supplier consents to the assignment o f its
agreement to the Department, at the Department’s sole option, i f the Design-Builder is
terminated for default;
Section 5.3.8.5 that the subcontractor or supplier shall comply immediately wit h a
written order from the Department to the Design-Builder to suspend or stop work;
Section 5.3.8.6 that the subcontractor or supplier shall maintain records of all Work it is
requested or authorized to do on a time and material or cost-plus basis, or with respect to
claims that it has asserted on a time and materials or cost-plu s basis, during the Project
and for a period of time specifi ed in the General Conditions an d requiring the
subcontractor or supplier to make those records available for r eview or audit by the
Department during that time;
Section 5.3.8.7 that the subcontractor shall obtain and maintain, throughout th e Project,
workers’ compensation insurance in accordance with the laws of the District of Columbia
(this provision is not applicable to supply agreements);
Section 5.3.8.8 that, if the Department terminates the Agreement for convenienc e, the
Design-Builder may similarly te rminate the subc ontractor supply agreement for
convenience, and that the subcontractor or supplier shall, in such a case, be entitled only
t o t h e c o s t s s e t f o r t h i n A r t i c l e 6 o f t h e S t a n d a r d C o n t r a c t P rovisions (Construction
Contracts);
Section 5.3.8.9 that the Department shall have the right to enter into a contra ct with the
subcontractor or supplier for the same price as its subcontract or supply agreement
priceless amounts already paid i f the Design-Builder files a vo luntary petition in
bankruptcy or has an involuntary petition in bankruptcy filed against it;
Section 5.3.8.10 that the subcontractor or supplier shall not be entitled to pay ment for
defective or non-conforming work , materials, or equipment, and shall be obligated
promptly to repair or replace non -conforming work, materials, o r equipment at its own
cost;
Section 5.3.8.11 a provision requiring that subcont ractors and suppliers promptl y pay
subcontractors and suppliers at lower tiers, imposing upon the subcontractors and
suppliers a duty to pay interest on late payments, and barring reimbursement for interest
paid to lower-tier subcontractors or suppliers due to a subcontractor’s or supplier’s failure
to pay them in a timely fashion;
Section 5.3.8.12 a provision requiring that all subcontractors at all tiers comply with the
provisions of Article 13 (Econom ic Inclusion Goals); provided, however, that the
Design-Builder may, in its reas onable discretion impose a diffe rent 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
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best efforts to achieve the LSDBE subcontracting goal on an agg r e g a t e b a s i s f o r t h e
Project;
Section 5.3.8.13 a provision which allows the Design-Builder to withhold payment from
the subcontractor if the subcontractor does not meet the requirements of the subcontract;
Section 5.3.8.14 lien and claim release and waiv er provisions substantially ide ntical to
those in this Agreement.
Section 5.3.9 Within seven (7) calendar days of receiving any payment from t he Department
that includes amounts attributable to Work performed or materia ls or equipment supplied by a
Subcontractor or supplier, the Design-Builder shall either pay the subcontractor or supplier for
its proportionate share of the am ount paid to the Design-Builde r for the subcontractor’s or
supplier’s Work or materials or equipment or notify the Departm ent 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 ar e 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 pa yee unless the Department agrees
otherwise in writing. Any interest paid to subcontractors or suppliers because the Design-Builder
has failed to pay them in a time ly fashion shall not be reimbur sable as part of the Cost of the
Work.
Section 5.3.10 The Design-Builder shall not enter into any profit sharing, reb ate, or similar
arrangement with any subcontractor or supplier at any tier with respect to the Project or the Work
to be carried out for the Project.
Section 5.3.11 The Design-Builder shall not substitute or replace any subcontr actor or supplier
approved by the Department without the Department's Contracting Officer and DSLBD’s prior
written consent.
Section 5.3.12 The Department has the right to contact subcontractors or suppliers at all tiers, or
material or equipment suppliers directly to confirm amounts due and owing to them or amounts
paid to them for Work on the Project, and to ascertain from the subcontractors or suppliers at all
tiers their projections of the cost to complete their work or to supply their material or equipment,
or the existence of any claims or disputes. In doing so the De partment shall not issue any
directions to subcontractors or suppliers at any tier.
Section 5.3.13 If it comes to the Department’s attention that a subcontractor or supplier has not
been paid in a timely fashion (other than for disputed amounts) , and if the Design-Builder fails
to cure the problem within five (5) calendar days after the Department gives it written notice of
the failure to pay, the Department may make payments to the sub contractor or supplier and
Design-Builder by joint check. If the payment was already made to the contractor, the joint check
be for future payments (if any).
Section 5.3.14 The Design-Builder shall be required to provide an evaluation o f each of its
subcontractors’ performance by completing and submitting to the Department the Subcontractor
Performance Evaluation Form set forth as Exhibit O, as follows:
a. Within ninety (90) days of initiating the Construction Phase; and
b. Within thirty (30) days after the Final Completion of the Project.
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Section 5.3.15 The Design-Builder shall be requi red to provide to the Contract ing Officer a
certificate of insurance for each subcontractor before such subcontractor begins work.
Section 5.4 Weekly Progress Meetings & Schedule Updates.
The Design-Builder shall schedule and conduct, at a minimum, we ekly progress meetings
following the Design-Builder’s generated agenda at which the Department, the Design-Builder’s
Architect, the Program Manager, the Design-Builder, and appropriate subcontractors can discuss
the status of the Work. The Desi gn-Builder shall prepare and pr omptly distribute meeting
minutes. In addition, the Desig n-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 Proje ct will be achieved. Via a nar rative 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-Bu ilder’s judgment, must be done to avoid or reduce that delay.
The Design-Builder shall point out , in its narrative, changes t hat 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, an d 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 narra tive, together with the reasons for
the variance and its impact on Pr oject completion. All Schedule updates shall be in a native
format reasonably acceptable to the Department (e.g., Primavera ). The Department may make
reasonable requests during the Project for changes to the format or for further explanation of the
information provided. Submission of updates showing that Substa ntial Completion or Final
Completion of the Project will be achieved later than the appli cable scheduled completion date
shall not constitute requests for an extension of time and shal l not operate to change the
scheduled completion date(s). T he Department’s receipt of, and lack of objection to, any
scheduled update showing Substant ial Completion or Final Comple tion later than the dates
agreed upon in the Project Schedule shall not be regarded as th e Department’s agreement that
the Design-Builder may have an extension of time, or as a waive r 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 comple ted by the agreed-upon date
in the Project Schedule. Changes to the scheduled completion da tes 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 un til Final Completion of the
Project. Such written report shall include the following elements:
Section 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 c orrect defective or deficient work or recover delays; (ii) an
updated cost report; (iii) a mont hly review of cash flow; (iv) a quality control report; and (v)
progress photos. Each monthly upd ate shall contain a narrative description of the Project
progress and a critical path method schedule in Primavera format, including any plans to correct
defective or deficient work or for time lost due to delays.
Section 5.5.2 Cost Update. The monthly update shall reflect, by GMP line item, the origi nal
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 pro jected cost to complete. A clear
Page 33
distinction must be made between approved Change Orders and tho se merely requested or
anticipated. The report shall e xplain all variances including “ buy-outs” or final actual costs
including those below their respective GMP line item. In additi on, the report must disclose any
instances in which the Design-Builder has transferred amounts from one line item to another, or
from the Contingency to any other line item. Neither submission nor the Department’s failure to
reject an update reflecting that the projected cost to complete the Project exceeds the GMP will
operate to increase the GMP or waive the Department’s right to enforce the GMP. If the report
reflects budget overruns, it must also include a recovery plan.
Section 5.5.3 Economic Inclusion Report. The monthly report shall include a detailed summary
of the Design-Builder’s efforts and results with respect to the economic inclusion goals set forth
in this Agreement. Such report shall be in a format acceptable to the Department and shall
include, at a minimum: (i) the Design-Builder’s overall perform ance with respect to the goals;
(ii) a listing of subcontracts a nd agreements with material sup pliers during the month and the
percentage of those subcontracts and agreements with material s uppliers 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 s ubcontracts; and (iv) a
description of the major subcontracting and supply opportunities that will be solicited during the
next three (3) months and the actions being taken to meet the subcontracting goals.
Section 5.5.4 Cash Flow Update. If there have been any changes to the anticipated cash flow
for the Project, such changes shall be disclosed and explained in the monthly report. If there are
no such changes, the report shall so state.
Section 5.5.5 Quality Assurance Report. The monthly report shall include a detailed summary
of the steps that are being employed to ensure quality construction and workmanship. Each report
shall specifically address issues that were raised by the Department and/or its Program Manager
during the prior month and outline the steps that are being taken to address such issues.
Section 5.5.6 Progress Photos. The monthly report shall include updated progress photos that
shall detail changes in the Work during the month. The Design-B uilder 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 encoun tered and other similar
r e l e v a n t d a t a a s t h e D e p a r t m e n t may reasonably require. The log shall be available to the
Department, the Design-Builder’s Architect, and the Program Manager, and on a monthly basis,
a copy of the log shall be submitted to the Department.
Section 5.6 Cost Control System.
The Design-Builder shall use a system of cost control for the W ork in a format consistent with
the GMP Drawings & Specification s and approved by the Departmen t, which shall include,
without limitation, regular monitoring of actual costs for activities in progress and estimates for
uncompleted tasks and proposed changes. The Design-Builder shall identify variances between
actual and estimated costs and re port the variances to the Depa rtment, the Design-Builder’s
Architect, and the Program Manager at regular intervals.
Section 5.7 Key Personnel.
Section 5.7.1 To carry out its duties, the Design-Builder shall provide at least the key personnel
identified in Exhibit F to this Agreement (“Key Personnel”), who shall carry out the functions
identified in Exhibit F. Among other things, the Key Personnel shall include:
A - Key Personnel of the Design-Builder:
The following individuals shall be considered key personnel (“K ey Personnel”) of
Design Builder:
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i. Field Superintendent;
ii. The Project Manager; and
iii. Safety/Quality Assurance/Quality Control Manager.
B - Key Personnel of the Design-Builder’s Architect/Engineer
The following individuals shall be considered the Key Personnel of the Design-
Builder’s Architect/Engineer:
i. Design Principal in Charge;
ii. Project Designer;
iii. Project Architect;
iv. Civil Engineer;
v. Key Mechanical, Electrical, and Plumbing (MEP) Engineer; and
vi. Landscape Architect.
It is contemplated that these Key Personnel will work from the design stage, purchasing, and
throughout the bulk of the fieldwo rk. The Design-Builder’s obli gation to provide adequate
staffing is not limited to provi ding the Key Personnel but is d etermined by the needs of the
Project. The Design-Builder shall not replace any of the Key Personnel without the Department’s
prior written approval. If any of the Key Personnel become unav ailable to perform services in
connection with the Agr eement due to death, disability, or sepa ration from the employment of
the Design-Builder or any affiliate of the Design-Builder, then the Design-Builder shall promptly
notify the Department’s Contrac ting Officer and propose a repla cement acceptable to the
Department. The Department shall be entitled to complete inform ation before approving such
replacement, including, but not limited to, a current resume of t h e p r o p o s e d r e p l a c e m e n t t o
include qualifications and experience.
Section 5.7.2 Certain members of the Design-Bu ilder’s Key Personnel shall be s u b j e c t t o a
replacement fee for their removal or reassignment by the Design-Builder. Those members of the
Design-Builder’s Key Personnel subject to a replacement fee shall be identified in Exhibit F as
subject to the replacement fee provisions. In the event there i s no delineation in Exhibit F of
those members of the Design-Builder’s Key Personnel subject to the replacement fee provisions
of this Agreement, then all of the Key Personnel shall be subje ct to the replacement fee
provisions of this Agreement.
Section 5.7.2.1 Removal or R eplacement of Key Personnel. A l l m e m b e r s o f t h e
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 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 r eplacement fee amount
shall not bar recovery of any other damages, costs, or expenses o t h e r t h a n t h e
Department’s internal administrative costs. In addition, the De partment shall have the
right, to be exercised in its sol e discretion, to remove, to re place 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 r eplace or to reduce the
scope of services of the Design- Builder, the Department shall h ave the right to enforce
Page 35
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 co mplete the services
required under the Agreement in c onjunction with the new member s of the Design-
Builder’s team approved by the Department.
Section 5.7.2.2 Subject to the terms of this Section 5.7 , in each instance where the
Design-Builder removes or reassi gns one of the key personnel li sted 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 reimb urse the Department for
its administrative costs arisi ng from the Design-Builder’s fail ure to provide the Key
Personnel. The foregoing replacem ent fee amount shall not bar r ecovery of any other
damages, costs or expenses other than the Department’s internal administrative costs.
Section 5.7.2.3 In addition, the Department shall have the right, to be exercis ed in its
sole discretion, to remove, re place, or to reduce the scope of services of the Design-
Builder in the event that a memb er of the Key Personnel has bee n removed or replaced
by the Design-Builder without the prior written consent of the Department’s Contracting
Officer. In the event, that the Department exercises the right to remove, replace or to
reduce the scope of services of the Design-Builder, the Departm ent 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 member s shall complete the
services required under this Agreement in conjunction with the new members of the
Design-Builder’s team approved by the Department’s Contracting Officer.
Section 5.8 Qualified Personnel/Cooperation.
The Design-Builder shall employ on the Project only those employees and Subcontractors who
will work together in harmony a nd who will cooperate with one a nother on the Project. The
Design-Builder shall enforce str ict discipline, good order, and harmony among its employees
and its Subcontractors and shall remove from the site any perso n who is unfit for the work or
fails to conduct herself or himself in a proper and cooperative manner. If the Department requests
the removal of any person as unfit or as having behaved inappro priately, the Design-Builder
shall promptly comply.
Section 5.9 Warranty.
The Design-Builder warrants to th e Department that materials an d equipment furnished under
the Project Documents will be of good quality and new unless ot herwise required or permitted
by the Contract documents, that for the one (1) year period following the Substantial Completion
Date, the Work will be free from defects not inherent in the qu ality required or permitted, and
that the Work will conform to the requirements of the Contract documents. The Design-Builder’s
warranty excludes remedies for dam age or defect caused by abuse , modifications not executed
by the Design-Builder, improper or insufficient maintenance, im proper 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 eleven th 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 w i t h t h e D e p a r t m e n t ,
allowing the Department or its consultants access to the Design -Builder’s Subcontractors and
Page 36
material suppliers, invoices, pur chase orders, Change Order est imates, records for Self-
Performed Work, and other relev ant Project documentation and so urces of information
concerning the Work or costs. The Department shall not use its access to the Subcontractors to
give instructions or directions t o them. All instructions or di rections shall be given only to the
Design-Builder.
Section 5.11 Claims for Additional Time.
Section 5.11.1 Time is of the essence of this Agreement. The Project must be Substantially
Complete no later than the Substantial Completion Date set forth within the Project Information
Section above.
Section 5.11.2 The Design-Builder will perform the Work so that it shall achi eve Substantial
Completion by the Substantial Completion Date. Unless the failu re to achieve Substantial
Completion by the Substantial Completion Date is a result of an Excusable Delay, as defined in
Section 5.11.3, the delay shall be deemed Non-Excusable and the Design-Builde r shall not be
entitled to an extension of time. Without limiting the generali ty of the foregoing, delays for the
following reasons shall be regarded as Non-Excusable and shall not entitle the Design-Builder
to an extension of time:
Section 5.11.2.1 Delays due to job site labor disputes, work stoppages, or suspensions of
work;
Section 5.11.2.2 Delays due to adverse weather, unless the Design-Builder estab lishes
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 pr eceding the effective date
of the Agreement. For purposes of this clause, whether shall only be deemed “adverse”
if the weather in question was more severe than that encountered at the Project site over
the last ten (10) years for the month in question. Such determinations shall be made based
on the number of rain/snow days or the cumulative precipitation total for the month in
question. Notwithstanding the foregoing, named storms shall con clusively be deemed
“adverse”;
Section 5.11.2.3 Delays due to the failure of the Design-Builder or Subcontract ors or
material suppliers at any tier to perform in a timely or proper fashion, without regard to
concepts of negligence or fault; or
Section 5.11.2.4 Delays due to Site Conditions whether known or unknown as of t he
effective date of the Agreement, foreseeable or unforeseeable a t 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 P rovisions (Construction
Contracts) or Hazardous Materials Remediation shall be deemed an Excusable Delay.
Section 5.11.3 The Design-Builder shall be entitled to an adjustment in the S ubstantial
Completion Date due to an Excusable Delay. The term “Excusable Delay” shall mean:
Section 5.11.3.1 Delays due to adverse weather ot her than those that are classif ied as a
Non-Excusable delay in accordance with Section 5.11.2.2 of this Agreement;
Section 5.11.3.2 Delays due to acts of God, war, unavoidable casualties, civil unrest, and
other similar causes of delay that are beyond the control of the Design-Builder; provided,
however, that in no event shall a Non-Excusable Delay or the ac tion or inaction of the
Page 37
Design-Builder, or any of its employees, agents, Subcontractors or material suppliers be
deemed an Excusable Delay; or
Section 5.11.3.3 Delays caused by differing Site Conditions as permitted by Article 4,
Section A of the Standard Contract Provi sions (Construction Contracts) o r Hazardous
Materials Remediation as contemplated in Section 5.11.2.4 of this Agreement;
Section 5.11.3.4 Delays due to suspensions of work; or
Section 5.11.3.5 Delays caused by the Client Agency or separate contractors of the Client
Agency to the extent such delays are not concurrent with delays caused by the Design-
Builder or any of its employees, agents, subcontractors or material suppliers.
In addition to the foregoing, a delay shall be deemed to be an Excusable Delay only to
the extent that such delay: (i) warrants an extension in the Su bstantial or Final
Completion Date; (ii) has not been caused by the Design-Builder or any of its employees,
agents, Subcontractors or material suppliers; (iii) is on Project’s critical path; and (iv) is
in addition to any time contingency periods set forth in the critical path.
Section 5.11.4 If the Design-Builder wishes to ma ke a claim for an adjustment i n t h e t i m e
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 th e probable effect of delay on the
progress of the Work. In the case of continuing delay, only one claim is necessary.
Section 5.11.5 In no event shall the Design-Builder be entitled to an increase in the GMP or 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 di rect 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, includin g, but not limited to, an increase
in the Design-Build Fee, on any amount to which the Design-Buil der may be entitled pursuant
to the preceding sentence.
Section 5.12 Site Safety and Clean-Up.
Section 5.12.1 General Responsibility. The Design-Builder shall 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 i n Article 16, Section F of the
Standard Contract Provisions for construction contracts.
Section 5.12.2 Safety Plan. Prior to the start of construction activities, the Design-Builder shall
prepare a safety plan for the Construction Phase conforming to OSHA 29 CFR 1926 (such plan,
the “Safety Plan”). This Safety Plan developed by the Design-Builder shall describe the proposed
separation and the specific nature of the safety measures to be taken including fences and barriers
that will be used and the site security details. This Safety Pl an will be submitted to the
Department and DPR for their review and approval prior to the commencement of construction.
Once the Safety Plan has been a pproved, the Design-Builder shal l comply with the plan at all
times during construction. The Design-Builder shall be required to revise the Safety Plan as may
be requested by the Department o r DPR at any time. 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 dela y constitute an excusable dela y. Additionally, the Design-
Page 38
Builder shall comply with the requirements of Article 27, Section A of the Standard Contract
Provisions for Construction Contracts, Exhibit J1.
Section 5.12.3 Safety Barriers/Fences. As part of its responsibility for Project safety, the
Design-Builder shall install such fences and barriers as may be necessary to separate the
construction areas of the site from those areas that are then being used by the Client Agency for
recreation center purposes. The Design-Builder shall describe i n the Safety Plan the proposed
separation and the specific nature of the fences and barriers that will be used.
Section 5.12.4 Site Security. The Design-Builder shall be responsible for site security and shall
be required to provide such watchmen as are necessary to protec t the site from unwanted
intrusion. Site Security shall be included in the Design-Builder’s General Conditions Cost.
Section 5.12.5 Exculpation. The right of the Department and Client Agency to comment on the
Safety Plan and the nature and location of the required fences and barriers shall in no way absolve
the Design-Builder from the obligation to maintain a safe site.
Section 5.12.6 Site Cleanliness. During the Agreement performance and/or as directed by the
Department’s Program Manager, as the installation is completed, the Design-Builder shall ensure
that the site is clear of all extraneous materials, rubbish, or debris.
Section 5.13 Workhours, Site Off ice, and Coordination with Clie nt Agency and
Community
Section 5.13.1 Workhours and Noise Ordinances. The Design-Builder shall comply with the
applicable work hours and noise ordinance and neither it nor it s subcontractors shall undertake
work on the Project site other than at the times and sound level permitted by the work hours and
noise ordinances, including but not limited to any restrictions established by local permitting
authorities.
Section 5.13.2 Site Office. Throughout the Project, the Design-Builder shall provide and
maintain a fully-equipped construction office for the Project s ite. The Design-Builder shall, at
all times, provide and maintain a fully equipped construction o ffice for DGS staff assigned to
the Project. The costs for these Site Office(s) shall be includ ed as part of the Design-Builder’s
general conditions cost. The site office shall include at a min imum, working space for two (2)
DGS staff members, a restroom, internet access, electricity, and climate control.
Section 5.13.3 Parking. The Design-Builder shall organize its work in such a manner so as to
minimize the impact of its operations on the surrounding commun ity. 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 pa rking plan for those individua ls working on the site that is
reasonably acceptable to the Department.
Section 5.13.4 Wheel Washing Stations. The Design-Builder shall provide wheel washing
stations on-site so as to preven t the accumulation of dirt and other refuse on the streets
surrounding the Project site.
Section 5.13.5 Outreach Plan. The Design-Builder shall keep the Department informed of the
construction activities and thei r potential impact on the commu nity 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.
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Section 5.13.6 Supervision. Throughout the Work, the construction office shall be managed by
personnel competent to oversee the Work at all times while cons truction is underway. Such
personnel shall maintain full-t ime, on-site construction superv ision and provide daily
inspections, quality control, m onitoring, coordination of vario us trades, record drawings, and
daily work log.
Section 5.14 Close-out & FF&E.
Section 5.14.1 A detailed list of FF&E requireme nts will be developed during t he design and
Preconstruction Phase and attached hereto as Exhibit N.
Section 5.14.2 Punchlist. Promptly before Substantial Completion, the Design-Builder sh all
cause the Design-Builder’s Architect to develop a punchlist. Once the punchlist is prepared, the
Design-Builder shall inspect the work along with representative s from the Department. The
punch list shall be revised to reflect additional work items th at are discovered during such
inspection. The Design-Builder shall correct all punchlist ite ms no later than ninety (90) days
after Substantial Completion is achieved.
Section 5.14.3 Training. The Design-Builder shall provide training to DGS and DPR staff on
all of the building systems, as applicable. 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 the Final Completion Date. All training shall be electronically recorded and turned over
to the Department for future use.
Section 5.14.4 Warranties & Manuals. Subsequent to Substantial Completion and no later
than fifteen (15) days following Substantial Completion, the De sign-Builder shall prepare and
submit the following documentation: (i) a complete set of produ ct manuals (O&M), training
videos, warranties, etc.; (ii) attic stock; (iii) an equipment schedule; (iv) a proposed schedule of
maintenance for the renovated building; (v) environmental, health and safety documents for the
renovated building; and (vi) all a pplicable inspection certific ates/permits (boiler, elevator,
emergency evacuation plans, health inspection, etc.) for the re novated building. No later than
thirty (30) days following Substantial Completion, the Design-Builder shall prepare and submit:
(i.) a complete set of its Project files; and (ii.) a set of record drawings.
The Design-Builder shall prepare an “as-built” plan of the site including all the modifications
performed during construction, wi thin 30 days of completion. Th e Design-Builder shall also
submit warranty information on all design requirements within 30 days of completion.
Section 5.14.5 Eleven Month Walk. The Design-Builder shall use commercially reasonable
efforts to schedule a joint inspection of the Project during th e eleventh month after Substantial
Completion is achieved. During such inspection, the Design-Builder and a representative of the
Department shall walk the Project to identify any necessary warranty work.
Section 5.14.6 Support for Init ial Heating & Cooling Season. The Design-Builder and its
mechanical subcontractor shall provide support to DPR and the Department during system start-
up and in initial operation for the first heating and cooling season after Substantial Completion
is achieved.
Section 5.14.7 The Design-Builder shall assist Client Agency in relocating FF& E and other
items as necessary within the re novated building, as well as fo r 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 allowa nce is in addition to cleaning services that would otherwise be
required by the Design-Builder, including, but not limited to, the obligation to deliver a broom-
clean building at the end of construction.
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Section 5.15 Salvaged and Stored Items. The Design-Builder shall be responsible for salvaging
and storing all items as identif ied by the Department, and to t he benefit of the Department, in
accordance with all applicable District laws and regulations, after notifying the Department and
receiving the Department’s permission to proceed.
Section 5.16 Protection of Existing Elements.
The Design-Builder shall protect all existing features, public utilities, and other existing
structures during construction. The Design-Builder shall protec t existing, site improvements,
trees, and shrubs from damage dur ing construction. Protection e xtends to the root systems of
existing vegetation. The Design- Builder shall not store materia ls or equipment, or drive
machinery, within the drip line of existing trees and shrubs.
Section 5.17 Sediment and Erosion Control.
The Design-Builder shall be responsible for installing sediment and erosion control measures in
accordance with DOEE guidelines, i nclusive of, but not limited to: (i) silt fencing; (ii) inlet
protection; (iii) stabilized construction entrances; and (iv) o ther control measures. The Design-
Builder shall be responsible for scheduling and coordination of DOEE Kick-Off Meeting.
Section 5.18 Quality Control.
Section 5.18.1 General Obligation. The Design-Builder shall be responsible for all activities
necessary to manage, control, and document work to ensure compl iance with Contract
Documents. The Design-Builder’s r esponsibility includes ensurin g adequate quality control
services are provided by the Design-Builder’s employees and its subcontractors at all levels. The
work activities shall include safety, submittal management, document reviews, reporting, and all
other functions related to quality construction.
Section 5.18.2 Quality Control Plan. Within forty five (45) days after the design development
documents are approved, the Design-Builder shall develop a quality control plan for the Project
(the “Quality Control Plan”). A d raft of the Quality Control Pl an shall be 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 by the
GMP Basis Documents, and in general, shall include a table of c ontents, quality control team
organization, duties/responsibil ities of quality control person nel, submittal procedures,
inspection procedures, deficiency correction procedures, docume ntation process, and a list of
any other specific actions or procedures that will be required for key elements of the Work.
Section 5.18.3 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 disc uss outstanding deficiencies, testing/inspections, and upcoming
Work. The monthly report shall include a detailed summary of the steps that are being employed
to provide quality construction and workmanship. The monthly re port should specifically
address issues raised during the month and outline the steps th at are being used to address such
issues.
Section 5.19 Acceleration.
Subject to the terms of this Section, the Department shall have the right to direct the Design-
Builder to accelerate the Work if, in the reasonable judgment of the Department: (i) the Design-
Builder fails to supply a sufficiency of workers or to deliver the materials or equipment with
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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 p receding 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 s chedule recovery plan (“Recovery P l a n ” ) t h a t i s r e a s o n a b l y
designed to address the concerns raised in such notice within three (3) days after receipt of such
notice. If the Department and th e Design-Builder are unable to agree on the terms of the
Recovery Plan within five (5) days after the issuance of the no tice (i.e. within forty eight (48)
hours after the receipt of the proposed Recovery Plan), the Dep artment shall have the right to
direct such acceleration as the Department, in its reasonable j udgment, deems
necessary. Provided Department complies with the notice provisions of this Section, the cost of
any acceleration directed under this Section shall not justify an adjustment to the GMP or the
Substantial Completion Date.
Given the nature of the Project and the fact that there is a fi xed date upon which the Client
Agency plans to occupy the building, the Design-Builder hereby: (i) acknowledges that this
provision is a material induceme nt upon which the Department ha s relied in entering into this
Agreement; and (ii) represents and warrants that it will include sufficient funding in the GMP in
order to comply with the requirements of this Section.
Section 5.20 Corrective Action Plan.
Subject to the terms of this Section, the Department shall have the right to direct the Design-
Builder to revise the provisions of the Quality Control Plan if, in the reasonable judgment of the
Department, the craftsmanship of the Work being installed fails to comply with generally
applicable industry standards, re quirements set forth in the sp ecifications that are reasonably
related to the quality of craftsmanship quality, or any provisions set forth in this Agreement (each
a “Quality Control Event”). In the event that the Department or its Program Manager determines
that a Quality Control Event has occurred, the Department shall provide the Design-Builder with
written notice of the occurrence of such Quality Control Event and the Design-Builder shall be
required to provide the Departmen t with a corrective action pla n 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 t he Design-Builder are unable to
agree on the terms of the Correc tive 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 ma y 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. P rovided the Department
complies with the notice provisions of this Section, the cost of any such corrective action directed
under this Section shall not justify an adjustment to the GMP or the Substantial Completion Date.
Section 5.21
a. Use of Department’s Electronic Project Management Information S ystem
(ProjectTeam). The Design-Builder shall utilize the Department’s current proje ct
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) meeti ng minutes; (iv)
invoices/applications for payment (full package including all f orms required by DGS);
(v) certified payrolls (in addition to upload via LCP Tracker); (vi) drawings and
specifications; (vii) GMP and any Submissions that require appr oval by DC Council;
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(viii) punchlist; and (ix) other Project documents as may be de signated by the
Department.
i. 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 informatio n into the Portal after
selecting the applicable purchas e order number which is listed on the Design-Builder’s
profile.
Section 5.22 Conformance with Laws.
It shall be the responsibility of the Design-Builder to perform under the Contract in conformance
with the Department’s Procuremen t Regulations and all statutes, laws, codes, ordinances,
regulations, rules, requirements, orders, and policies of governmental bodies. This is including,
but is not limited to all local a nd nationally recognized construction codes, the Green Building
Act, local ordinances pertaining to construction, and laws asso ciated with project labor
agreements currently active, and which may become codified during the Project.
Section 5.23 Licensing, Accreditation, and Registration
The Design-Builder and all of its subcontractors and subconsult ants (regardless of tier) shall
comply with all applicable District of Columbia, state, and fed eral licensing, accreditation, and
registration requirements and standards necessary for the perfo rmance of the Agreement.
Without limiting the generality o f the foregoing, all drawings shall be signed and sealed by a
professional architect or engineer licensed in the District of Columbia.
Section 5.24 Construction Phase Deliverables.
The deliverables set forth in Exhibit C are required during the Construction Phase.
Section 5.25 Close-Out Deliverables.
The deliverables set forth in Exhibit N are required during the Project’s Close-Out and prior to
Final Payment, as set forth in Section 10.12.
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Article 6 - DESIGNATED REPRESENTATIVES
Section 6.1 Department’s Designated Representative.
The Department designates the individual(s) identified in Exhibit H as its representative with
express authority to bind the Department with respect to all matters requiring the Department’s
approval or authorization. Subject to the limitations on their authority specified in Exhibit H,
these representative(s) shall have the exclusive authority to m ake 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 a nd assure that the Design-Build er does not receive conflicting
instructions regarding the Work, the Design-Builder shall promp tly notify the Department’s
representative upon receiving any instructions or other communi cation in connection with the
Design-Builder’s Work from any employee of the Department or ot her 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 I as its representative with
express authority to bind the Des ign-Builder with respect to al l matters requiring the Design-
Builder’s approval or authorization. In addition, the Departme nt retains the right to approve
candidates to serve as on-site personnel in accordance with eac h candidate’s experience with
similar projects and local marketplace conditions. Once approv ed, individuals cannot be
changed without the Department’s prior approval. During the en tire term of the Agreement, it
is agreed that the Design-Builder’s designated representative w ill 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 adhere d to by design-builders that bui ld first-class state-of-the-art
buildings and projects that are similar to the Project in large urban areas.
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6 Article 7 - COMPENSATION AND PAYMENTS FOR DESIGN &
PRECONSTRUCTION PHASE SERVICES
Section 7.1 Compensation
Section 7.1.1 The Department shall compensate and make payments to the Desig n-Builder for
design services in accordance with this Article 7 and Article 10. For design services, including
construction administration services provided during the constr uction phase, the Design-
Builder’s compensation shall not exceed the amount set forth in the Project Information Section
of this Agreement (the “Preconstruction Fee”). The Preconstruct ion 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 7.1.2 The Department shall compensate and make payments to the Design -Builder for
design services in accordance with this Article 7 and Article 10. For design services, the Design-
Builder’s compensation shall not exceed the amount set forth in the Project Information Section
of this Agreement (the “Design Fee”).
Section 7.2 Payments
Section 7.2.1 Payments for Design & Preconstruction Phase Services shall be made monthly
over the anticipated duration of the Design & Preconstruction Phase following presentation and
acceptance of the Design-Builder’s invoice and shall be in proportion to services performed. In
no event, however, will the aggreg ate of the Design-Builder’s m onthly invoices for Design &
Preconstruction Phase Services exceed the Preconstruction Fee.
Section 7.2.2 Payments are due and payable in accordance with Article 9 of t his Agreement.
Amounts unpaid after the date of which payments are due shall bear interest in accordance with
the Quick Payment Act.
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7 Article 8 - COMPENSATION FOR CONSTRUCTION PHASE SERVICES
Section 8.1 Compensation.
The Department shall c ompensate and make payments to the Design -Builder for Construction
Phase Services in accordance with this Article 8 and Article 10 . For the Construction Phase
Services, the Design-Builder’s total compensation shall be as set forth in the Project Information
Section of this Agreement (the “Design-Build Fee”). The Design- Builder acknowledges and
agrees that the percentage of th e total amount of the Design-Bu ild Fee set forth in the Project
Information Section of this Agr eement is at risk (the “At-Risk Portion”), and the Design-
Builder shall only be entitled to the At-Risk Portion as set fo rth below. Unless and until the
Design-Builder’s entitlement to an y subset of the At-Risk Porti on is determined by the
Department, the Design-Builder shall only be entitled to bill f or the portion of the Design-
Build Fee that is not at risk (the “Base Design-Build Fee”). Th e Design-Build Fee shall be
billed in accordance with Article 10, to be paid in equal monthly installments over the anticipated
duration of the Construction Phase. To the extent that the duration of the Agreement is extended,
the then remaining amounts of the Design-Build Fee will be re-a llocated such that the then-
existing portion of the Design-Build Fee shall be evenly spread over the then remaining duration
of the Construction Phase.
Section 8.1.1 Award Fee Pool. The At-Risk Portion shall be used to establish and fund an award
fee pool (“the Award Fee Pool”). Within sixty (60) days after approval and fully execution of this
Agreement, the Department shal l appoint a committee that will d etermine entitlement to those
portions of the Award Fee Pool so designated below (such committee, the “Award Fee Evaluation
Committee”). The Award Fee Evalu ation Committee will consist of : (i) DGS Capital
Construction Division; (ii) DPR Chief of Facilities or their de signee; (iii) DGS CCD
representative; and (iv) DPR Facilities representative.
Section 8.1.2 The Design-Builder may earn the At-Risk Portion of the Design- B u i l d F e e i n
accordance with Exhibit P.
Section 8.2 Lump Sum General Conditions Cost.
The Design-Builder shall not be entitled to recover more than the amount set forth in the Project
Information Section of this Agreement for the Cost of General C onditions (such amount, the
“Lump Sum General Conditions Cos t”). If, as a result of any Cha nge Order(s) or Change
Directive(s): (i) the Project du rations extends 30 days or more beyond the Substantial
C o m p l e t i o n D a t e ; a n d ( i i ) t h e D e sign-Builder can demonstrate to the satisfaction of the
Department that such additional Costs of General Conditions are reasonable and not due to any
fault of the Design-Builder, its Subcontractors, material men, consultants or anyone making
claims thereunder, the Design-Buil der may request a Change Orde r to adjust the Lump Sum
General Conditions Cost. To the extent the Design-Builder incurs Costs of General Conditions
in excess of the Lump Sum General Conditions Cost, the Design-Builder shall not be entitled to
reimbursement for such amounts unless the Department authorizes, in writing, an increase to the
Lump Sum General Conditions Cost. Nonetheless, in such an even t, if the Design-Builder
exceeds the Lump Sum General Conditions Cost, the Design-Builde r shall continue to be
required to adequately staff the Project.
Section 8.3 Initial Not-to-Exceed Amount.
Unless and until the GMP Amendment is executed and approved by the Council for the District
of Columbia, this Agreement shall have an initial not-to-exceed amount as set forth in the Project
Information Section of this Agreement (the “Initial NTE”). 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. Pr ior to expending or committing
Page 46
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 a s to whether the work will
qualify as a “capital” expense under the Department’s financial guidelines to the extent capital
money is to be expended. In making such a request, the Design-Builder shall submit an itemized
breakdown of the work that the Design-Builder seeks to release using funds from the Initial NTE
as well as the associated costs of such work.
Section 8.4 Project Budget.
The Department has established the Project Budget as set forth in the Information Section of this
Agreement. When the GMP is estab lished, such GMP shall not exceed the Project Budget, and
such GMP shall include any and all amounts which may be due to the Design-Builder pursuant
to this Agreement. In no event shall the Design-Builder be entitled to recover more than the GMP
unless the Design-Builder is authorized to exceed the GMP by th e Department in advance and
in writing. The Design-Builder shall inform the Department’s Contracting Officer at least fifteen
(15) calendar days in advance, i f the Design-Builder encounters any foreseen or unforeseen
project-related events, which might reasonably affect: (i) exis ting Project Budget; or (ii) DC
council-authorized appropriations.
Section 8.5 No Adjustments to Fee.
It is the Department’s intent to engage the Design-Builder to d evelop a GMP that meets the
programmatic requirements set forth in Exhibit A by the Client Agency and the Project Budget
as set forth herein (i.e. designed to budget), to allow for Substantial Completion of th e Work to
be achieved no later than the Substantial Completion Date. The Design-Builder shall be entitled
to an adjustment to the Design-Bu ild 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 ad ditions 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, an d in accordance with Section
18.8, the Design-Builder shall be entitled to an increase in the De sign-Build Fee to the extent,
and only to the extent, that: (i) the Department has added a ne w programmatic element to the
Project; or (ii) the Department made additions to the GMP scope which (other than punchlist or
warranty work) require the Desi gn-Builder’s services at the Pro ject to extend 30 days or more
beyond the Substantial Completion Date.
Section 8.6 Reserved
Section 8.7 Direct Cost of Work
“Direct Cost of the Work” shall mean labor, material, and other costs reasonably and necessarily
incurred in the proper performance of the Work as approved by the Department and shall include,
but not be limited to:
Section 8.7.1 Labor. Payment will be made for direct labor costs plus indirect lab or costs
such as insurance, taxes, fringe benefits and welfare provided such costs are considered
reasonable. Indirect costs shall be itemized and verified by receipted invoices. If verification
is not possible, up to five percent (18%) of direct labor costs may be allowed.
Section 8.7.2 Rented Equipment. Payment for required equipment rented from an outside
company that is neither an affiliate of nor a subsidiary of, the Design-Builder will be based
on receipted invoices which shall not exceed rates given in the current edition of the Rental
Rate Blue Book for Construction Equipment published online by Data Quest. If actual rental
rates exceed manual rates, written justification shall be furnished to the Contracting Officer
Page 47
for consideration. No additional allowance will be made for ove rhead and profit. The
Design-Builder shall submit written certification to the Contra cting Officer that any
required rented equipment is neither owned by nor rented from t he Design-Builder or an
affiliate of or subsidiary of the Design-Builder.
Section 8.7.3 Design -Builder’s Equipment. Payment for required equipment owned by
the Design-Builder or an affiliate of the Design-Builder will b e 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 fo r repair costs, freight and t ransportation charges, fuel,
lubricants, insurance, any other costs, expenses, or overhead a nd profit. Payment for such
equipment made idle by delays attributable to the Government will be based on one-half the
derived hourly rate under this subsection.
Section 8.7.4 Materials. Incorporated and unincorporated materials as permitted under
Section 9.1.
Section 8.7.5 Direct Cost of the Work does not , however, include home office overhead,
field supervision, general cond itions, or profit of either the Subcontractor or the Design-
Builder. No personnel above the level of a working foreman sha ll be considered a Direct
Cost of the Work.
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Article 9 - COST OF THE WORK FOR CONSTRUCTION PHASE
Section 9.1 Cost of the Work.
The term “Cost of the Work” shall mean the costs necessarily incurred by the Design-Builder in
the proper performance of the Work and shall include only the following:
Section 9.1.1 Payments made by the Design-Builder to subcontractors and suppliers, other than
design subconsultants, but only in accordance with the subcontracts and supply agreements;
Section 9.1.2 All amounts due to the Design-Builder under the terms of the Department's written
authorization for the Design-Builder to perform any portion of the Work as Self-Performed
Work. If authorization for the Design-Builder to engage in Sel f-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 actual l y p a i d t o P r o j e c t f o r e m e n , construction
workers, and other personnel in the direct employ of the Design-Builder, while engaged
in approved Self-Performed Work, together with contributions, a ssessments, payroll
taxes, or fringe benefits required by the laws or applicable co llective bargaining
agreements.
b. Incorporated Materials. The cost, net of trade discount s, 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, produc ts, supplies, and equipment
not actually installed or incorpor ated into the Self-Performed Work, but required to
provide a reasonable allowance fo r waste or spoilage, subject t o the Design-Builder’s
agreement to turn unused excess materials over to the Departmen t 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 Departmen t a credit in the amount of the proceeds against the
Cost of the Work.
Section 9.1.3 Royalty and license fees paid for use of a design, process, or product if its use is
required by this Agreement or has been approved in advance by the Department;
Section 9.1.4 Fees for obtaining all required approvals or permits associated with the abatement,
demolition, utilities abandonment, and utility relocation, and all trade permit fees and the
building permit fee;
Section 9.1.5 Cost of the Design-Builder’s Arc hitect/Engineer’s contract rei mbursed at cost
and without markup; provided, however, that such costs shall not exceed the Design Fee set forth
in the Offeror’s Proposal. Any amounts in excess of the Design Fee shall not be reimbursable as
a Cost of Work;
Section 9.1.6 All fees and other costs necessarily incurred to carry out tes ting and inspection
required by the Agreement or applicable laws, or otherwise to maintain proper quality assurance.
The costs the Design-Builder inc urs to schedule and coordinate any additional testing and
inspections the Department may de cide to conduct itself shall b e within the Cost of the Work
unless the additional testing establishes that the Work tested was defective or otherwise failed to
satisfy requirements set forth in the Agreement, in which case the Design-Builder shall pay the
costs, without reimbursement;
Section 9.1.7 All bonds to jurisdictional agencies (utilities, stormwater ma nagement, land
disturbance, and grading);
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Section 9.1.8 All performance and payment bonds and general liability insura nce. The
Department may, in its sole disc retion, allow the Design-Builde r t o r e c o v e r t h e c o s t s o f
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 a dvance and after being
presented with a cost-benefit analysis of such use.
Section 9.1.9 Payments made by the Design-Bui lder to its design consultants and sub-
consultants; provided, however, that the Design-Builder shall not be reimbursed for the costs of
design services in excess of the Design Fee.
Section 9.1.10 Costs of repairing or correcting damaged or nonconforming Work executed by
the Architect, or Design-Builder’s other consultants, Subcontractors or suppliers, provided that
such damaged or nonconforming Work was not caused by negligence or failure to fulfill a
specific responsibility of the Design-Builder, and only to the extent that the cost of repair or
correction is not recoverable by the Design-Builder from insura nce, sureties, Subcontractors or
suppliers. It is understood that the cost of repairing, correcting damaged or nonconforming Work
that was Self-Performed shall not be reimbursable in any event.
Section 9.2 Lump Sum General Conditions Cost.
The Design-Builder’s Lump Sum General Conditions Cost shall be the extent of what the
Design-Builder is entitled to recover for the cost of General Conditions. General Conditions may
include, but are not limited to:
a) Cost of construction staff. Only staff stationed in the field are reimbursable;
b) Fringe Benefits associated with construction staff;
c) Payroll taxes and payroll insurance associated with construction staff;
d) Staff costs associated with obtaining permits and approvals;
e) Out-of-house consultants, including permit expeditors;
f) Job vehicles;
g) The field office(s) for the Design-Builder and Department, incl uding, but not
limited to: (i) trailer purchase and/or rental; (ii) field office installation, relocation
and removal; (iii) utility connections and charges during the Construction Phase;
(iv) furniture; (v) office supplies;
h) Office equipment including, but not limited to: (i) computer ha rdware and
software; (ii) fax machines; (iii) copying machines; (iv) voice /data system
installation and use charges; (v) Job radios;
i) Local delivery and overnight delivery costs;
j) Field computer network;
k) First aid facility;
l) Printing cost for drawings, bid packages, etc.;
m) Parking costs for the construction staff;
n) Salting sidewalks and shoveling snow on sidewalks that surround the site; and
o) Exterior site fencing, fence wrapping, and construction signage.
Section 9.3 Costs Not to Be Reimbursed.
The following costs shall not be reimbursable:
a) All Any personnel or labor costs other than those provided for in Section 9.1.2(a)
or Section 9.2.1.
b) Fees for any permits or licenses the Design-Builder requires to conduct its general
business operations.
c) Capital expenses and interest on capital employed for the Work.
d) The cost of home or regional offices, it being understood that compensation for such
costs included in the Design-Build Fee and Award Fee.
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e) Sales or use taxes, unless the Design-Builder establishes that applicable law required
payment of such taxes.
f) Costs due to the errors or omissions of the Design-Builder or i ts subcontractors or
suppliers at all tiers, negligent or otherwise.
g) Costs due to breach of Contract b y the Design-Builder or its su bcontractors or
material suppliers at all tiers, including, without limitation, costs arising from
defective or damaged work or its correction, disposal of materi als or equipment
erroneously supplied, and repairs to property damaged by the Design-Builder or its
subcontractors or material suppliers at all tiers.
h) Any costs incurred in performing work of any kind before Precon struction NTP,
unless specifically authorized by the Department in advance and in writing.
i) Direct or indirect costs of any kind, except those expressly included in Section 9.1.
Section 9.4 Discounts, Rebates, And Refunds.
Section 9.4.1 Cash discounts obtained on payments made by the Design-Builder shall accrue to
the Department if: (i) before ma king such payment(s), the Desig n-Builder included them in an
Application for Payment and rece ived 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. T rade discounts, rebates, refunds
and amounts received from sales of surplus materials and equipm ent shall accrue to the
Department, and the Design-Builder shall make provisions so that such amounts can be secured.
Section 9.4.2 Amounts that accrue to the Depart ment in accordance with the p rovisions of
Section 9.4.1 shall be credited to the Department as a deduction from the Cost of the Work.
Section 9.5 Facilitating Tax Exempt Purchases.
The Department expects that the Project will qualify as tax-exempt under applicable laws. Upon
request, the Department will provide the Design-Builder with the necessary information relating
to the tax exemption. In the event that any savings are attributable to the tax-exempt status of the
Project, the Design-Builder shall not be entitled to share in such savings.
Section 9.6 Accounting Records.
The Design-Builder shall keep f ull and detailed accounts and ex ercise such controls as may be
necessary for proper financial management under the Agreement. The Design-Builder’s
accounting and control systems sh all be satisfactory to the Dep artment. The Department, its
representatives, and the Depart ment’s accountants shall be affo rded access to the Design-
Builder’s records, books, correspondence, instruction, drawings, receipts, subcontracts, purchase
orders, vouchers, memoranda, and other data relating to this Pr oject, and the Design-Builder
shall preserve such Project documentation relating to the Project for a period of three years after
final payment, or for such longer period as may be required by law.
Section 9.7 Excluded Cost Elements.
It is the Department’s intent th at the Design-Builder provides a turn-key solution for the
implementation of the Project, and the budget set herein has be en developed based on such a
framework. The Design-Builder shall advance the Project in a m anner consistent with such
budget and the understanding that the following cost elements are excluded from the budget set
forth herein.
a. 3rd Party Material Testing;
b. 3rd Party Commissioning;
c. 3rd Party Inspections;
d. Costs of active DPR equipment;
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e. 3rd Party Plan Review; and
f. Public Art.
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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 wh ich 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 Design-Bu ild Fee to which the Department has determined the
Design-Builder to be Entitled
Minus Applicable retainage
Minus Amounts previously p aid by the Department
Section 10.2 Retention.
The Department shall withhold from each progress payment an amo unt equal to ten percent
(10%) of the payment related to: (i) each Subcontract and supply agreement; (ii) the Design Fee;
(iii) the Preconstruction Fee; (iv) the Design-Build Fee; (v) the Lump Sum General Conditions;
and (vi) the Cost of the Work-re lated to each item of Self-Perf ormed 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 Dep artment may cease retaining aga inst such item; provided,
however, that retention shall not be held on the costs of bonds , insurances, and those elements
of the general requirements which consist of a single, insolated effort such as dumpster disposal
and safety carpentry. The Department at its sole and absolute discretion may elect to increase
the retention of any trade Subcontractor up to ten percent (10% ), in the event the Department
determines that the situation so warrants. The Department also in its sole and absolute discretion,
may elect to reduce the retainage relating to a particular trad e 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, certif ications, 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’ a nd 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 reaso nably request. Each
Application for Payment shall include detailed documentation of costs as a condition to
approving progress payments, but the Design-Builder shall never theless maintain complete
documentation of the costs.
An executed Release of Liens and Claims in the format required by the CO must accompany
each Application for Payment.
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Section 10.4 Stored Materials.
The Department shall not be requi red to pay for materials store d 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 agree s 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 D esign-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 satisf actory evidence that the mate rials 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 r equired, inter alia, to agree to the
execution of proper Project docum entation to afford the Departm ent 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 Applic ation for
Payment that were attributable t o Subcontractor Work or to mate rials 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 s upply of
materials or equipment are currently due and owing to the Subco ntractors and material or
equipment suppliers;
Section 10.5.3. that all Work, materials or equipment for which payment is so ught is, to
the best of the Design-Builder 's knowledge, free from defect an d meets all of the
requirements set forth in the Agreement;
Section 10.5.4. that the Design-Builder’s subc ontracts include the clauses re quired by
subparagraphs (1) through (4) of D.C. Official Code §2-221.02(d) (2017); and
Section 10.5.5. The Design-Builder shall not include in an Application for Pa yment
amounts for Work for which the Design-Builder does not intend to pay.
Section 10.6 Lien Waivers.
Each Application for Payment shall be accompanied by written wa ivers 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 ti ers 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 ad ditional forms of waiver
acknowledging receipt of final pa yment 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 Depar tment. The Department may
require the execution of appropria te Project documents to confi rm the passage of a clear title.
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Passage of title shall not opera te to pass the risk of loss wit h respect to the Work in question.
R is k o f l o s s r e m a in s w i th t h e D esign-Builder until Substantial Completion, unless otherwise
agreed by the Department, in writing.
Section 10.8 Submission.
On the twenty-fifth (25) 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 Applicati on 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 bus iness day. If the Design-Bui lder 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 Standa rd Contract Provisions (Constru ction Contracts and
Architectural and Engineering Services Contracts).
Section 10.9 Right to Withhold Payments.
The Department will notify the Design-Builder within fifteen (1 5) days after receiving any
Application for Payment of any defect in the Application for Pa yment or the Design-Builder’s
performance which may result in the Department’s declining to pay all or a part of the requested
amount. The Department may withhold payment from the Design-Builder, in whole or part, as
appropriate, if:
Section 10.9.1 the Work is defective and such defects have not been remedied; or
Section 10.9.2 the Department has determined that the Design-Builder’s progr ess has
fallen behind the Project Sche dule, and the Design-Builder fail s, within ten (10) calendar
days of the Department ’s written demand, to provide the Departm ent with a realistic and
acceptable Recovery Plan in accordance with Section 5.19; or
Section 10.9.3 the Design-Builder's monthly sc hedule 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 Pl an in accordance with
Section 5.19; or
Section 10.9.4 the Design-Builder has failed to provide reports in full compl iance with
Section 5.5 of this Agreement; or
Section 10.9.5 the Design-Builder has failed to pay Subcontractors or supplie rs promptly
or has made false or inaccurate certifications that payments to Subcontractors or suppliers
are due or have been made; or
Section 10.9.6 any mechanic’s lien has been filed against the Department, the site or any
portion thereof or interest ther ein, or any improvements on the site, even though the
Department has paid all undisput ed amounts due to the Design-Bu ilder, and the Design-
Builder, upon notice, has failed to remove the lien, by bonding it off or otherwise, within
ten (10) calendar days; or
Section 10.9.7 the Department has reasonable evidence that the Work will not be
completed by the Substantial Completion Date, as required, that the unpaid balance of the
GMP would not be adequate to cove r actual or liquidated damages arising from the
anticipated delay; or
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Section 10.9.8 the Department has reasonable evidence that the Work cannot be completed
for the unpaid balance of the GMP; or
Section 10.9.9 the Design-Builder is otherwise in substantial breach of this Agreement
including, without limitation, failures to comply with LSDBE Utilization requirements or;
Section 10.9.10 the Application for Payment is i ncomplete, unsubstantiated, and/or does
not contain sufficient documentation for evaluation by the Contracting Officer.
Section 10.10 Payment Not Acceptance.
Payment of any progress payment or final payment shall not constitute acceptance of Work that
is defective or otherwise fails to conform to the Agreement or a waiver of any rights or remedies
the Department may have with respect to defective or nonconforming Work.
Section 10.11 Department Not Obligated to Others.
The Department shall have no obligation to pay or be responsibl e 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 Departme nt to the Design-Builder
when: (i) Final Completion has been achieved; (ii) all deliverables set forth in Section 5.14, and
Exhibit N have been delivered to and are accepted by the Department; (ii i) the Design-Builder
provides the Department a complete set of product manuals (O&M) , training videos, and
warranties, as applicable; and (i v) a complete final Applicatio n for Payment and a final
accounting for the Cost of the Work has been submitted by the Design-Builder and reviewed by
the Department and, to the extent the Department determines app ropriate, the Department’s
accountants. The Department shall make the Final Payment not more than thirty (30) days after
the Department verifies the amount of the final payment set forth in a complete final Application
for Payment.
Section 10.12.1 The amount of the Final Payment shall be calculated as follows:
Section 10.12.1.1 Take the sum of the Cost of the Work substantiated by the
Design-Builder’s final accounti ng and the Design-Build Fee; but not more than
the GMP.
Section 10.12.1.2 Subtract amounts, if any, for w hich the Department withholds
pursuant to the Agreement.
Section 10.12.1.3 Subtract the aggregate of previous payments made by the
Department. (If the aggregate of previous payments made by the Department
exceeds the amount due the Desi gn-Builder, the Design-Builder s hall promptly
reimburse the difference to the Department).
Section 10.12.1.4 The Final Payment shall take into account any savings accruing
to the Department or the Design-Builder.
Section 10.12.2 The Department will review and report in writing on the Design-Builder’s
final accounting within 30 days after delivery of the final accounting to the Department by
the Design-Builder. Based upon the Department’s determination of the Cost of the Work,
and provided the other conditions of Section 10.12.1 have been met, the Department will,
within fifteen (15) days after the Department’s determination, notify the Design-Builder of
any amount that the Department will withhold and the reasons therefor. The time periods
stated in this Section 10.12.1.5 supersede those for typical progress payments.
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Section 10.12.3 If the Department determines that the Cost of the Work is othe r than that
claimed by the Design-Builder, the Design-Builder shall be enti tled to proceed in
accordance with Article 3 of the Standard Contract Provisions ( Construction Contracts).
Pending a final resolution of the disputed amount, the Departme nt shall pay the Design-
Builder the amount that the Department determines to be appropriate.
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Article 11 – INSURANCE
A. GENERAL REQUIREMENTS. The Contra ctor at its sole expense shall procure and
maintain, during the entire per iod of performance under this co ntract, the types of
insurance specified below. The Contractor shall submit a Certi ficate of Insurance to
the Contracting Officer (CO) giving evidence of the required co verage prior to
commencing performance under this contract. In no event shall any work be performed
until the required Certificates o f Insurance signed by an autho rized representative of
the insurer(s) have been provided to, and accepted by, the CO.
The Government of the District o f 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 fo r workers’ compensation and pr ofessional liability
insurance) as an additional insureds for claims against The Government of the District
of Columbia relating to this contract, with the understanding t hat any affirmative
obligation imposed upon the insured Contractor or its subcontractors (including without
limitation the liability to pay premiums) shall be the sole obl igation of the Contractor
or its subcontractors, and not the additional insured. The additional insured status under
the Contractor’s and its subcontra ctors’ Commercial General Lia bility insurance
policies shall be effected using the ISO Additional Insured End orsement 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 tha t such policies provide
primary coverage (without any right of contribution by any other insurance, reinsurance
or self-insurance, including any deductible or retention, maint ained 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 s ubcontractors maintain broader c overage and/or higher
limits than the minimums shown below, the District requires and shall be entitled to the
broader coverage and/or the high er limits maintained by the Con tractor and
subcontractors.
B. INSURANCE REQUIREMENTS
1. C o m m e r c i a l G e n e r a l L i a b i l i t y I n s u r a n c e ( “ C G L ” ) - T h e C o n t r a c t o r s h a l l p r o v i d e
evidence satisfactory to the CO with respect to the services pe rformed that it carries a
CGL policy, written on an occurrence (not claims-made) basis, o n 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 al l subcontracts,
covering claims for bodily injur y, including without limitation sickness, disease or
death and mental anguish of any persons, broad form property damage, including loss
of use resulting therefrom, personal and advertising injury, and including coverage for
liability arising out of an Insured Contract (including the tort liability of another assumed
in a contract) and acts of terrorism (whether caused by a foreign or domestic source). Such
coverage shall have limits of liability of not less than $1,000 ,000 each occurrence, a
$2,000,000 general aggregate.
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The Commercial General Liability shall be further endorsed to:
a) To the fullest extent permitted by law, provide additional insu red coverage
using ISO form CG 2015 0413 (or it’s equivalent) to The Governm ent 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 Distr ict of
Columbia
d) Any Annual Aggregate shall apply on a per location or per proje ct 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, borrowe d and non-owned
vehicles and equipment used by th e Contractor in connection wit h work under this
agreement, with a minimum combined single limit of $1,000,000 f or bodily injury or
death and property damage, including loss of use thereof. Such policy or policies of
automobile liability insurance shall be written on an "occurren ce" (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, h a i l o r
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 insu red coverage
to The Government of the District of Columbia
b. Coverage available to the additional insureds shall apply on a primary and
non-contributing basis as respects any other insurance, deductibles, or self-
insurance available to the additional insureds
c. A waiver of subrogation in favor of The Government of the Distr ict of
Columbia
d. Defense costs shall be in addition to and not erode the limits of liability
e. If applicable, include Form CA 99 48 03 06 Pollution Liability - Broadened
Coverage for Covered Autos - Busi ness Auto, Motor Carrier and T ruckers
(or it’s equivalent)
3. Workers’ Compensation Insurance - The Contractor shall provide evidence satisfactory
to the CO of Workers’ Compensation insurance in accordance with the statutory
mandates of the District of Colum bia or the jurisdiction in whi c h t h e c o n t r a c t i s
performed.
Employer’s Liability Insurance - The Contractor shall provide evidence satisfactory to
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the CO of employer’s liability insurance as follows: $500,000 p er accident for injury;
$500,000 per employee for disease; and $500,000 for policy disease limit.
The Workers Compensation and Em ployers 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 Unite d States Longshore and Harbor Wo rkers
Compensation Act (USL&H)
c) Where applicable, include Jones Act Coverage for seamen or crew members on
an “if any” basis.
4. Network Security/Privacy (Cyber) Liability Insurance covering acts, errors, omissions,
breach of contract, and violati on of any consumer protection la ws arising out of
Contractor’s operations or serv ices with a limit of $2,000,000 per claim and in the
aggregate. Such coverage shall include but not be limited to, third party and first party
coverage for loss or disclosure of any data, including personal ly identifiable
information and payment card information, network security fail ure, violation of any
consumer protection laws, unauthorized access and/or use or oth er intrusions,
infringement of any intellectual property rights (except patent), unintentional breach of
contract, negligence or breach of duty to use reasonable care, breach of any duty of
confidentiality, invasion of privacy, or violations of any othe r 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 defe nse and fines/penalties
in any jurisdiction anywhere in th e 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, n otification 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 Con tractor shall provide
Professional Liability Insurance (Errors and Omissions) to cover liability resulting from
any error or omission in the per formance of professional services under this Contract.
The policy shall provide limits of $1,000,000 per claim or per occurrence for each
wrongful act and $2,000,000 annual aggregate. The Contractor wa rrants that any
applicable retroactive date precedes the date the Contractor fi rst performed any
professional services for the Government of the District of Col umbia and that
continuous coverage will be maintained or an extended reporting p e r i o d w i l l b e
exercised for a period of at least ten years after the completi on 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 commerc ial umbrella or excess liabili ty insurance with
minimum limits of $10,000,000 per occurrence and $10,000,000 in the annual
aggregate, following the form a nd in excess of all liability po licies. All liability
coverages must be scheduled under the umbrella and/or excess po licy. The insurance
required under this paragraph sha ll be written in a form that a nnually reinstates all
required limits. Coverage shall be primary to any insurance, se lf-insurance or
reinsurance maintained by The Government of the District of Columbia and the “other
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insurance” provision must be amended in accordance with this re quirement and
principles of vertical exhaustion.
7. Environmental Liability/Contract ors Pollution Liability Insuran ce - The Contractor
shall provide evidence satisfactory to the CO of environmental liability insurance
covering losses caused by pollution or other hazardous conditions arising from ongoing
or completed operations of the Contractor. Such insurance shall apply to bodily injury,
property damage (including loss o f use of damaged property or o f property that has
been physically injured), clean-up costs, transit and non-owned d i s p o s a l s i t e s .
Coverage shall extend to defense costs and expenses incurred in the investigation, civil
fines, penalties and damages or settlements. There shall be ne ither an exclusion nor a
sublimit for mold or fungus-related claims. The minimum limits required under this
paragraph shall $2,000,000 per occurrence and $2,000,000 in the annual aggregate. If
such coverage is written on a claims-made basis, the Contractor w a r r a n t s t h a t a n y
retroactive date applicable to coverages under the policy prece des the Contractor’s
performance of any work under the Contract and that continuous completed operations
coverage will be maintained for at least ten (10) years or an extended reporting period
shall be purchased for no less than ten (10) years after completion.
The Contractor also must furnish to the CO Owner certificates o f insurance
evidencing environmental liability insurance maintained by thir d party
transportation and disposal site operators(s) used by the Contr actor for losses
arising from facility(ies) accep ting, storing or disposing haza rdous materials or
other waste as a result of the C ontractor’s operations. Such c overages must be
maintained with limits of at least the amounts set forth above.
The Environmental Liability poli cy shall be further endorsed to include The
Government of the District of Columbia as an Additional Insured.
8. Installation-Floater Insurance - For projects not involving str uctural alterations, the
contractor shall provide an installation floater policy with a limit equal to the Property
values being installed as part of the project. The policy shall cover property while
located at the project site, at temporary locations, or in tran sit; deductibles will be the
sole responsibility of the contractor.
9. Sexual/Physical Abuse & Molestati on - The Contractor shall prov ide 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 abus e and molestation
liability coverage. Coverage should include physical abuse, suc h as sexual or other
bodily harm and non-physical abus e, such as verbal, emotional o r mental abuse; any
actual, threatened or alleged act; errors, omission or miscondu c t . T h i s i n s u r a n c e
requirement will be considered me t if the general liability ins urance includes an
affirmative sexual abuse and mole station endorsement for the re quired amounts or
through a separate stand alone sexual abuse and molestation pol icy with confirmation
there are no exclusions for abuse or assault & battery under th e General Liability. So
called “silent” coverage or “sha r e d ” l i m i t s u n d e r a c o m m e r c i a l 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 submitt ed to the ORM for
compliance review.
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Construction Projects Controlled by the District
For construction projects controlled by the District, the Distr ict will procure the
following policies with the District listed as the first named insured. Since the
District will control the placemen t of the policies, the Distri ct should not
contractually bind itself to secure coverage broader than the m inimum that satisfy
the interests of the Contractor.
Builders Risk – The District shall purchase and maintain, in a company authorized
to do business in the jurisdiction in which the project is loca ted, builders risk
insurance, written on an “all ri sk”, special causes of loss or equivalent form.
Builders risk coverage will include boiler and machinery / equi pment breakdown,
earthquake and flood perils. Building ordnance and terrorism co v e r a g e w i l l b e
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 th e replacement value of the stru cture, including
coverage for property in transit and stored off premises.
At the discretion of the District, builders risk coverage will extend to soft costs and
delayed completion.
Builders risk insurance shall include the interests of The Government of the District
of Columbia, the Contractor, S ubcontractors and Sub – subcontra ctors in the
project.
C. SUBCONTRACTOR INSURANCE REQUIREMENTS
Any and all subcontractors engaged by Contractor for work under this agreement shall
be required to have the same insured required of Contractor. S hould the Contractor
wish to propose different insurance requirements than outlined below, then, prior to
commencement of work by the subc ontractor, the Contractor shall submit in writing
the name and brief description of work to be performed by the s ubcontractor on the
Subcontractors Insurance Requireme nt Template provided to the O ffice 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 subco ntractor's required
insurance prior to commencement of work by the subcontractor.
D. PRIMARY AND NONCONTRIBUTORY INSURANCE
The insurance required herein shall be primary to and will not seek contribution from
any other insurance, reinsurance or self-insurance including any deductible or retention,
maintained by the Government of the District of Columbia.
E. DURATION. The Contractor shall carry all required insurance unt il all contract work
is accepted by The Government of the District of Columbia and s hall 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 require d minimum insurance requirement s established by
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The Government of the District o f Columbia. However, it is unde rstood that The
Government of the District of Co lumbia does not in any way repr esent 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 tempor ary structures, rented machine ry, 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 c h a n g e s r e s u l t s i n
Contractor no long complying with the above requirements. The C ontractor shall
provide the CO with ten (10) days prior written notice in the e vent of non-payment of
premium. The Contractor will also provide the CO with an update d Certificate of
Insurance should its insurance c overages renew during the contr act. The Government
of the District of Columbia may reasonably change the above ins urance coverage
requirements during the Term by giving Contractor at least 30 d ays’ 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 ev idencing the required
insurance coverage and endorseme nts required herein. Contractor must also provide us
with evidence of renewal before the expiration date of each ins urance policy. Contractor
is responsible for providing us with 30 days advanced written n otice if the certificate of
insurance by the insurer has been canceled, reduced in coverage , or otherwise altered. .
Certificates of insurance must reference the corresponding contract number. Evidence of
insurance shall be submitted to:
The Government of the District of Columbia
And emailed to the attention of:
Name: Suzi Tabot
Title: Supervisory Contract Specialist
Department of General Services
Contracts and Procurement Division
Address: 3924 Minnesota Avenue NE, 5th Floor
Washington, DC 20019
Phone: 202-666-9706
Email: suzi.tabot@dc.gov
The CO may request and the Contractor shall promptly deliver u pdated certificates of
insurance, endorsements indicati ng the required coverages, and/ or certified copies of
the insurance policies. If the insurance initially obtained by the Contractor expires prior
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to completion of the contract, re newal certificates of insurance and additional insured
and other endorsements shall be furnished to the CO prior to th e date of expiration of
all such initial insurance. For all coverage required to be maintained after completion,
an additional certificate of insur ance 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 Governmen t of the District of
Columbia for any damages or claim s resulting from or arising ou t of work performed
by the Contractor, its agents, employees, servants or subcontractors in the performance
of this contract.
L. CARRIER RATINGS. All Contracto r’s and its subcontractors’ insu rance required in
connection with this contract sha ll be written by insurance com panies with an A.M.
Best Insurance Guide rating of at least A- VII or better (or the equivalent by any other
rating agency) and licensed in the District of Columbia.
M. WARRANTIES. When applicable, th e Contractor should be named as an additional
insured on the applicable manufac turer’s/distributer’s Commerci al General Liability
policy using Insurance Services Office, Inc. (“ISO”) form CG 20 15 04 13 (or another
occurrence-based form with coverage at least as broad). CO should collect, review for
accuracy, and maintain all warranties for goods and services.
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Article 12- BONDS
Section 12.1 Performance Bond and Payment Bond.
The Design-Builder shall, before commencing the Construction Ph ase, provide to the
Department a payment bond and performance bond, each with a pen al sum equal to the full
value of the Agreement, NTE or the GMP. This bond shall cover all aspects of the Project,
including but not limited to design fees, design-build fees, ge neral condition price, and
any allowances, ensuring full pr otection for the Department and all subcontractors and
suppliers. Such bond shall remain in full force and effect until Final Co mpletion is achieved
and the Department shall be able to draw upon such bond regardless of the amount paid by the
Department to the Design-Builder, even if such amount exceeds the penal value of such bond.
Unless otherwise directed by the Department, the Design-Builder shall require all
Subcontractors whose Subcontract prices exceed One Hundred Thou sand Dollars ($100,000)
to provide payment and performance bonds, with a penal sum equa l 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 d o business in the District of
Columbia and bonding company listed on the United States Department of Treasury’s Listing
of Approved Sureties. All subcontractors’ bonds must include a dual obligee rider, naming the
Design-Builder and the Department as dual obligees. If the GMP is increased pursuant to the
terms of the Agreement, the Department may require that the amount of the bonds be increased
in the amount of one hundred percent (100%) of the increase, an d the Design-Builder shall
promptly comply. The Design-Buil der shall furnish a copy of it s bonds to any potential
beneficiary of the bonds or permit that person or company to ma ke 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 Desig n-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 lod g e a n y o b j e c t i o n i t m a y
reasonably have to the proposed action.
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Article 13 - ECONOMIC INCLUSION REQUIREMENTS
Section 13.1 LSDBE Utilization.
If the Design-Builder subcontracts any work, at least 35% of th e dollar volume of the
Agreement shall be subcontracted with small business enterprise s (“SBE”). If there are
insufficient qualified SBEs then the subcontracting may be satisfied by subcontracting 35% of
the dollar volume to any qualifi ed certified business enterpris es (“CBE”). For subcontracted
work, pass-through entities will not count toward this goal. In order to count toward the
subcontracting requirement, the S BE must perform at least 35% o f 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 a greements with material supplie rs shall be counted toward
meeting this goal. The Design-Bu ilder has developed a Subcontra cting Plan that is attached
hereto as Exhibit D . The Design-Builder shall comply with the terms of the SBE
Subcontracting Plan in making pur chases and administering its s ubcontracts and supply
agreements.
Section 13.2 Mandatory Subcontracting Requirements
Section 13.2.1 Unless the Director of the Department of Small and Local Busine ss
Development (“DSLBD”) has approve d a waiver in writing, in acco rdance with D.C.
Official Code § 2-218.51, for all contracts in excess of $250,000, at least 35% of the dollar
volume of the contract shall be subcontracted to qualified SBEs.
Section 13.2.2 If there are insufficient SBEs to completely fulfill the requir ement of
Section 13.2.1, then the subcontracting may be satisfied by subcontracting 35 % of the
dollar volume to any qualified certified business enterprises ( “CBE (s)”); provided,
however, that all reasonable effo rts shall be made to ensure th at SBEs are significant
participants in the overall subcontracting work.
Section 13.2.3 A prime contractor that is certi fied by DSLBD as a small, local o r
disadvantaged business enterprise shall not be required to comply with the provisions of
Section 13.2.1 and Section13.2.2.
Section 13.2.4 Except as provided in Section 13.2.1 a n d S e c t i o n 1 3 . 2 . 2, a prime
contractor that is a CBE and has been granted a proposal prefer ence pursuant to D.C.
Official Code § 2-218.43, or is selected through a set-aside pr ogram, shall perform at
least 35% of the contracting effort with its own organization a nd resources and, if it
subcontracts, 35% of the subcontra cting effort shall be with CB Es. A CBE prime
contractor that performs less than 35% of the contracting effor t 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 contractin g e f f o r t w i t h i t s o w n
organization and resources and, i f it subcontracts, 35% of the subcontracting effort shall
be with CBEs. A certified joint venture prime contractor that performs less than 50% of
the contracting effort shall be subject to enforcement actions under D.C. Official Code §
2-218.63.
Section 13.2.6 E a c h C B E u t i l i z e d t o m e e t t h e s e subcontracting requirements sha ll
perform at least 35% of its contracting effort with its own organization and resources.
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Section 13.2.7. A prime contractor that is a CBE and has been granted a propos al
preference pursuant to D.C. Official Code § 2-218.43, or is sel ected through a set-aside
program, shall perform at least 50% of the on-site work with it s 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 C ontractor shall ensure that qu alified vendors certified
by the District’s Department of Small and Local Business Develo pment as small SBEs
are provided an opportunity to o ffer a bid/proposal for any of the Project’s FF&E
requirements. Qualified vendor s can be found on the District’s Office of Contracting
Procurement’s (OCP) District of Columbia Supply Schedule (DCSS) in the Furniture and
Furniture Management category ( https://ocp.dc.gov/page/dcss). The Contractor shall
ensure that a minimum of three ( 3) qualified SBE vendors are pr ovided 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 an d 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 t his Agreement, then the
subcontracting plan submitted with its Proposal, may only be am ended 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 Di strict. 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 Contracto r shall provide fully
executed copies of all subcontracts identified in the subcontracting plan to the Contracting
Officer (CO), District of Columbia Auditor and the Director of DSLBD.
Section 13.5 Subcontracting Plan Compliance Reporting
Section 13.5.1 If the Contractor has a subcontracting plan required by law for t h i s
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 contra ctor 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
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d. A copy of the fully executed subcontract, if it was not provide d with an earlier
quarterly report.
Section 13.5.2 If the fully executed subcontract is not provided with the quarterly report,
the prime contractor will not r eceive credit toward its subcont racting 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 Col umbia Auditor and the Director of DSLBD to provide an
update on its subcontracting plan.
Section 13.7 DSLBD Notices
The Contractor shall provide wri tten notice to the DSLBD and th e 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 subcontra cting plan monitoring or
compliance reports or other requi red 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) f ails 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 u n d e r t h e d e f a u l t
provisions in Article 16 of the Contract.
Section 13.8.4 Neither the Design-Builder nor a Subcontractor may remove a
Subcontractor or tie r-Subcontractor if such Subcontractor or ti er-Subcontractor is
certified as an LSDBE company unl ess the Department approves of such removal, in
writing. The Department may condition its approval upon the Design-Builder developing
a plan that is, in the Department’s sole and absolute judgment, adequate to maintain the
level of LSDBE participation in the Project.
Section 13.9 Equal Employment Opportunity and Hiring of District Residents
Section 13.9.1 For contracts for services in the amount of $300,000 or more, the Design-
Builder shall comply with the Fir st Source Employment Agreement A c t o f 1 9 8 4 , a s
amended, D.C. Official Code § 2-219.01 et seq. (“First Source Act”).
Section 13.9.2 The Design-Builder shall enter into and maintain during the te rm of the
Contract, a First Source Employment Agreement ( Exhibit R ) 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
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finding employees to fill any vacancy occurring in all jobs cov ered by the Employment
Agreement shall be the First Source Register.
Section 13.9.3 If applicable, the Design-Builder shall comply with subchapter X o f
Chapter II of Title 2, and all successor acts thereto, includin g 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 b y 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 b een accepted by DOES. Once approv ed, 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 employe es 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 ever y sub-consultants and
subcontractor’s employees hired after the effective date of the Agreement, or after such
subconsultant or subcontractor enters into a contract with the Design-Builder, to work on
the Project shall be residents of the District of Columbia. This percentage shall be applied
in the aggregate, and not trade by trade.
Section 13.9.6 The Contractor’s hiring and 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 com pliance reports, or
deliberate submission of falsified data.
Section 13.9.8 If the Design-Builder does not receive a good faith waiver, th e 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 So urce 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 Stre et, NW, Suite 350N,
Washington, DC 20001.
Section 13.9.11 The provisions of the First Source Act do not apply to nonprof it
organizations which employ 50 employees or less.
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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 appren tices that will be assigned to t he 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 wi th
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 ther eto and the rules and regulati ons promulgated
thereunder. The Design-Builder and all member firms and Subcont ractors shall execute
a First Source Agreement with the District of Columbia Departme nt 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 co llected from its
Subcontractors in the reports required to be submitted by the Design-Builder pursuant to
Section 9.3.
Section 13.10.5. Reserved.
Section 13.10.6 Living Wage Act. In addition to the requirements set forth in the First
Source Employment Agreement, the Design-Builder shall comply wi th all applicable
provisions of the Living Wage Act of 2006, Exhibit Q, as amended (codified at D.C.
Official Code §§ 2-220.01 et seq.) and its implementing regulations.
Section 13.10.7 Apprenticeship Act . The District of Columbia Apprenticeship Act of
1946, D.C. Official Code §§ 32-1401 et seq. (“Act”), as amended , may apply to this
Project. If applicable, all subc ontractors selected to perform work on the Project on a
craft-by-craft basis shall be required to comply with this Act. All terms and conditions of
the Act, D.C. Apprenticeship Cou ncil Rules and Regulations, as well as any federal
requirements, shall be implemente d. The Prime Contractor shall be liable for any
subcontractor non-compliance. Thirty-Five percent (35%) of all apprentice work 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
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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 attac hed within
Exhibit Q to each employee and subcontractor who performs services under the Contract. The
Design-Builder shall also post the Notice attached within Exhibit Q in a conspicuous place in
its place of business. The Design-Builder shall include in any subcontract for $15,000 or more
a provision requiring the subcontractor to post the Notice in a conspicuous place in its place of
business.
Section 13.11.6 The Design-Builder shall maintain its payroll records under the Contract
in the regular course of business for a period of at least thre e (3) years from the payroll
date, and shall include this requirement in its subcontracts for $15,000 or more under the
Contract.
Section 13.11.7 The payment of wages required under the Living Wage Act of 2006 shall
be consistent with and subject to the provisions of D.C. Official Code §32-1301 et seq.
Section 13.11.8 The requirements of the Living Wage Act of 2006 do not apply to:
1. Contracts or other agreements that are subject to higher wage level determinations
required by federal law;
2. Existing and future collective ba rgaining 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, tele phone, water, sewer or other ser vices provided by a
regulated utility;
4. Contracts for services needed i mmediately to prevent or respond to a disaster or
imminent threat to public health or safety declared by the Mayor;
5. Contracts or other agreements th at provide trainees with additi onal 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 vaca tion period, or
enrolled as a full-time student, as defined by the respective i nstitution, who is in
high school or at an accredited i nstitution of higher education and who works less
than 25 hours per week; provided that he or she does not replace employees subject
to the Living Wage Act of 2006;
7. Tenants or retail establishments that occupy property construct ed 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 Medica id 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 reta rded 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, effecti ve February 24,
1984 (D.C. Law 5-48; D.C. Official Code § 44-501); and
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10. Contracts or other agreements between managed care organizations and the Health
Care Safety Net Administration or the Medicaid Assistance Admin istration 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 ac cordance with the
provisions of Section 109 of the Living Wage Act of 2006.
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Article 14 - LIQUIDATED DAMAGES AND DISINCENTIVE FEES
Section 14.1 Delay in Submission of Deliverables
S u b j e c t t o t h e t e r m s s e t f o r t h i n Section 3.1.1.7 Disincentive Fee for Failure to Timely
Provide Deliverables, if the Design-Builder fails to provide any of the deliverable s 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 Depart ment agree that the liquidated da ma g e s s e t f o r t h i n th is
Article do not constitute, and sh all not be deemed, a penalty b ut represent a reasonable
approximation of the damages to the Department associated with a delay in the Project. These
damages shall not apply if the d elay is the result of force maj eure and the Design-Builder
otherwise complies with the provi sions set forth in the Standar d Contract Provisions
(Construction Contracts and Archit ectural/Engineering Services Contracts). In the event the
Design Builder fails to meet the S ubstantial Completion Date fo r more than sixty days, the
Design-Builder consents to a Termination for Default.
Section 14.4 Early Completion. In the event the Design-Bu ilder achieves Substantial
Completion of the Project prior to the Substantial Completion D ate, the Design-Builder shall
maintain the completed Project, at its own expense, until such time that the Department agrees
to occupy and use the Project for its intended use.
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Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1 Ownership and Use of Project Documents. The Drawings, Specifications, and
other Project Documents prepared by the Design-Builder’s Archit ect 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-subcontracto rs, or suppliers on other
projects, or for additions to this Project outside the scope of the Work, without the specific
written consent of the Department, and the Design-Builder’s Arc hitect. The referenced
Drawing, Specifications, and ot her Project Documents shall beco me the property of the
Department.
Section 15.2 Assignment.
The Department and Design-Builder respectively bind themselves, their partners, members,
joint venturers, constituent entities, successors, assigns and legal representatives to the other
party hereto and to partners, members, joint venturers, constituent entities, successors, assigns,
and legal representatives of suc h other party in respect to cov enants, agreements, and
obligations contained in the Agreement. Neither party to the Ag reement shall assign the
Agreement or its rights and oblig ations under the Agreement, wi thout the written consent of
the other party. If either party attempts to make such an assignment without such consent, that
party shall nevertheless remain legally responsible for all obligations under the Agreement.
Section 15.3 Buy American Act Provision.
The Design-Builder shall comply with the provisions of the Buy American Act (41 U.S.C. §§
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 and Article 15 (C) of the Department Standard Contract
Provisions for 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 Co mp., p. 635), the
Design-Builder agrees that only domestic construction material will be used by the
Design-Builder, subcontractors, material men and suppliers in t he performance of the
Agreement, except for non-domestic material listed in the Agreement.
“Components” as used in this Sect ion, means those articles, mat erials and supplies
incorporated directly into the end products.
“Domestic end product”, as used in this section, means, (1) an unmanufactured end
product mined or produced in the United States, or (2) an end product manufactured in the
United States, if the cost of its components mined, produced, o r 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 combinat ion 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 processi ng in the Unites States is
considered domestic.
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“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 quanti ties of a satisfactory
quality;
3. For which the District determines that domestic preference woul d be inconsistent
with the public interest; or
4. For which the District determines the cost to be unreasonable.
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 manufa ctured construction
material is a “domestic construc tion material” if it has been m anufactured in the United
States and if the cost of its c omponents which have been mined, produced, or
manufactured in the United States exceeds 65 percent of the cos t 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 iron 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.
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 th e Government to be not
mined, produced or manufactured i n the United States in suffici ent 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 th e construction work performed under this Agreement shall
be subject to the Davis-Bacon Act (40 U.S.C. §§ 3142-3148), Exhibit G1 and Title 29 Code
of Federal Regulations (“CFR”) part 5.5 Davis Bacon Provision Exhibit G2. The wage rates
applicable to this Project are attached as Exhibits G1 and G2 . The Design-Builder further
agrees that it and all of its subcontractors shall comply with the regulations implementing the
Davis-Bacon Act and Title 29 CFR and such regulations are hereby incorporated by reference.
At such time as the Design-Builder is preparing its GMP, the Design-Builder shall include the
current Davis-Bacon wage rates in its GMP.
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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 Pa yment Act, D.C. Official Code §2-221.01 et
seq., as amended, for the period beginning on the day after the re quired 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 delive ry of the item of property or s ervice 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 t h e d a t e o f
delivery of meat or meat food products;
c. Not later than 10 calendar days, excluding legal holidays, afte r 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 paym ent is due is
not established by contract;
Section 15.5.1.2 Any amount of an interest penalty which remains unpaid at the
end of any 30-day period shall be added to the principal amount of the debt and
thereafter interest penalties shall accrue on the added amount.
Section 15.5.1.3 No interest penalty shall be due to the Design-Builder if payment
for the completed delivery of goods or services is made on or after:
a. 3rd day after the required payment date for meat or a meat food product;
b. 5th day after the required payment date for an agricultural commodity; or
c. 15th day after any other required payment date in the case of any other item.
Section 15.5.2 Payments to Subcontractors
Section 15.5.2.1 The Design-Builder must take one of the following actions withi n
seven (7) days of receipt of any amount paid to the Design-Buil der 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 attri butable 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 subcontracto r’s payment and
state the reason for the nonpayment.
Section 15.5.2.2 The Design-Builder must pay any subcontractor or supplier inter est
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% per month. No interest penalty shall be paid on the following
if payment for the completed delivery of the item of property o r service is made on or
before:
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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-da y period shall be added to the p rincipal amount of the
debt to the subcontractor and ther eafter interest penalties sha ll accrue on the added
amount.
Section 15.5.2.4 A dispute between the Design-Buil der and subcontractor relating to
the amounts or entitlement of a s ubcontractor 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
Section 15.5.3.1 The Design-Builder shall include in each subcontract under this
Contract a provision requiring th e subcontractor to include in its contract with any
lower-tier subcontractor or supp lier the payment and interest c lauses required under
paragraphs (1) and (2) of D.C. Official Code §2-221.02(d).
Section 15.5.4 Requirements for Change Order Payments
Section 15.5.4.1 The Department and the Design-Builder are prohibited from requiring
the a Prime Contractor or a subcontractor to undertake any work that is determined to
be beyond the original scope of the Prime Contractor's or a subcontractor's contract or
subcontract, including work under a District-issued change order, when the additional
work increases the contract pri ce beyond the not-to-exceed pric e 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 Chie f 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;
Page 77
b. Pay the subcontractor any undisp uted amount to which the subcon tractor is
entitled for any additional work within 10 days of receipt of p ayment 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 be ing 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 pursui ng damages for delays in the c ompletion of the
construction due to the inability of the parties to agree on a price for the additional
work.
Section 15.5.4.4 Authorized Changes By The Contracting Officer
a. The CO is the only person authorized to approve changes in any of the
requirements of this Contract.
b. The Design-Builder shall not comply with any order, directive, or request that
changes or modifies the requireme nts of this Contract unless is sued 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 Provi sion. The Design-
Builder agrees that the applicable work performed under this Agreement shall be subject to the
Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333).
Section 15.7 False Claims Act. Design-Builder shall be governed by all laws and
regulations prohibiting false or fraudulent statements and claims made to the DC government,
including the prescriptions set forth in District of Columbia Code Official Code §22-2405 and
§§2-381.01 et seq. In the event that it is discovered that the Design-Builder h as 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 . A l l o f t h e P r o j e c t
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 construe d in favor of a broader scope of
Work for the Design-Builder, as the intent of the Agreement is, with specifically identified
exceptions, to require the Desig n-Builder to assume entire resp onsibility for the construction
of the Project. If there is any inconsistency among the Projec t documents comprising the
Agreement, the order of precedence among them is as follows, wi th the first listed Project
document having the highest priority:
1. This Agreement and its Modificati ons, Change Orders, Change Dir ectives and any
Exhibits thereto;
2. The Department’s Standard Contr act Provisions (Construction Con tracts and
Architectural/Engineering Services Contracts), as amended, and any missing term in
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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 i ndependent contractors, not as
employees or agent of the District, or joint venture or partner with the District; (2) shall be
responsible for their own managem ent and administration of the work required and bear sole
responsibility for complying with any and all technical, schedu le, financial requirements or
constraints attendant to the performance of this Agreement; (3) shall be free from supervision
or control by any government employee with respect to the manner or method of performance
of the service specified; but ( 4) shall, pursuant to the govern ment’s right and obligation to
i n s p e c t , a c c e p t o r r e j e c t w o r k , comply with such general direct ion 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 exc lusive authority to manage, di rect, and control
the work, and shall be responsib l e f o r a l l m e a n s , m e t h o d s , t e c hniques, 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 relea se 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 re quired 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 designa ted in writing. Any such noti ce or communication shall be
deemed delivered as follows: if hand delivered, on the day so d elivered, if sent by telecopier,
on confirmation of successful transmission, and if sent by reco gnized overnight carrier, the
next business day.
If to the Department: If to the Design-Builder:
Dr. Jacque McDonald Frank Chiaramonte
Chief Procurement Officer President
Department of General Services Chiaramonte Construction Compa ny
3924 Minnesota Avenue NE, 5th Floor 2260 Minnesota Avenue SE
Washington, DC 20019 Washington, DC 20020
T h i s S e c t i o n s h a l l b e r e a d a s i mposing minimum requirements for distribution of required
contractual notices, and not as displacing distribution require ments with respect to design
documents, construction submittals, periodic reports, and other Project documents.
Page 79
Section 15.14 Limitations.
The Design-Builder agrees that any statute of limitations applicable to any claim or suit by the
Department arising from this Agreement or its breach shall be controlled by applicable District
of Columbia law.
Section 15.15 Survival.
All agreements, warranties, and re presentations of the Design-B uilder 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 pow er, right, or remedy arising fr om the Agreement or any
applicable law, the waiver shall not be deemed to be a waiver o f 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 Depart ment's rights and remedies will
be exercised at its sole discretion, and shall not be regarded as conferring any obligation on the
Department to exercise those right s or remedies for the benefit of the Design-Builder or any
other person or entity.
Section 15.18 Headin gs/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 modifica tions to the Agreement shall be
effective against the Department unless made in writing and sig ned 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 construe d to limit the Department’s
ability to unilaterally modify the Agreement.
Section 15.20 Severability.
In the event any one or more of the provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, and in lieu of each such
invalid, illegal or unenforceable provision, there shall be add ed automatically as a part of this
Agreement a provision as similar in terms to such invalid, ille gal or unenforceable provision
as may be possible and be valid, legal and enforceable; each part of this Agreement is intended
to be severable.
Section 15.21 Anti-Deficiency Acts.
The obligations and responsibilities of the Department under th e terms of the Agreement, or
any subsequent agreement entered into pursuant to this Agreemen t or referenced herein (to
which the Department is a party) , are and shall remain subject to the provisions of: (i) the
federal Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1342, 1349-1351 , 1511-1519 (2004) (the
“Federal ADA”), and D.C. Official Code §§ 1-206.03(e) and 47-105 (2001); (i i) the District
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of Columbia Anti-Deficiency Act, D.C. Official Code §§ 47-355.01 – 355.08 (2004 Supp.)(the
“D.C. ADA” and (i) and (ii) collectively, as amended from time to time, the “Anti- Deficiency
Acts”); and (iii) Section 446 of the District of Columbia Home Rule Act, D.C. Official Code
§ 1-204.46 (2001). Pursuant to the Anti-Deficiency Acts, nothing in this Agreement shall create
an obligation of the Department in anticipation of an appropria tion by Congress for such
purpose, and the Department’s legal liability for payments and other charges under this
Agreement shall not arise or obtain in advance of the lawful availability of appropriated funds
for 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 COLUMBI A
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 unde r this Agreement. During the
term of this Agreement, the Mayor of the District of Columbia o r other appropriate official
shall, for each fiscal period, include in the budget applicatio n 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 Agreemen t for any period after the f iscal year for which
appropriations have been made, and in the event appropriated fu nds 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 a ny then-existing appropriatio n, the Department shall
promptly notify the Contractor a nd this Agreement shall immedia tely 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 le vied or pledged any form of
taxation. No District of Columbia Official or employee is authorized to obligate or expend any
amount under this Agreement unle ss such amount has been appropr iated by Act of Congress
and is lawfully available.
Section 15.22 Time.
Time, if stated in a number of days, will be calendar days and thus include Saturdays, Sundays,
and holidays, unless otherwise stated herein.
Section 15.23 Americans With Disabilities Act of 1990 (“ADA”). During the performance
of this Contract, the Design-Builder and any of its Subcontractors shall comply with the ADA.
The ADA makes it unlawful to discriminate in employment against a qualified individual with
a disability. See 42 U.S.C. §12101 et seq.
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Section 15.24 Contracts in Excess of One Million Dollars. Any contract in excess of
$l,000,000 shall not be binding or g ive rise to any claim or de mand against the District until
approved by the Council of the District of Columbia and signed by the Contracting Officer.
Section 15.25 Gratuities Not to Benefit Provisions.
If it is found, after notice and hearing, by the Department tha t g r a t u i t i e s ( i n t h e f o r m o f
entertainment, gifts, payment, o ffers of employment, or otherwi se) were offered or given by
the Design-Builder, or any agent or representative of the Desig n-Builder, to any official,
employee or agent of the Departme nt 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 t o 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 pu rsue such other rights and
remedies provided by law and under the Agreement.
Section 15.25.1 In the event the Agreement is te rminated 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-Builde r in providing any such
gratuities.
Section 15.25.2 No member of, nor delegate to Congress, Mayor or City Council Member, nor
the Department nor employee of the District or employee of the Department shall be admitted
to any share or part of the Agree ment or to any benefit that ma y arise therefrom, and all
agreements entered into by the CO of the Department in which he or she be personally
interested as well as all agreements made by the Department in which the Mayor or City
Council Member or employee of the District shall be personally interested shall be void and
no payments shall be made on any such contracts by the Departme nt; 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 C ity Council Member, or employee of the District is de
minimis.
Section 15.26 Ethical Standards for the Department's Employees And Former
Employees. The Department expects the Design-Builder to observe the high est ethical
standards and to comply with all applicable laws, rules, and re gulations 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 g ift, 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. Th e 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 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 subs tantial involvement in the matt er. The Design-Builder may
request a waiver to permit the as signment of such matters to fo rmer personnel on a case-by-
case basis. The Design-Builder sha ll include in every subcontra ct a provision substantially
Page 82
similar to this section so that such provisions shall be bindin g upon each Design-Builder or
vendor.
Section 15.27 Non-Discrimination in Employment Provisions.
Section 15.27.1 District of Columbia Human Rights Act
a. The Design-Builder shall not discriminate in any manner against any employee or
applicant for employment that would constitute a violation of the District of Columbia
Human Rights Act, effective December 13, 1977, as amended (D.C. Law 2-38; D.C.
Official Code § 2-1401.01 et seq.) (“Act”, as used in this clause). The Design-Builder
shall include a similar clause i n all subcontracts, except subc ontracts for standard
commercial supplies or raw materials. In addition, the Design-Builder agrees, and any
subcontractor shall agree, to pos t in conspicuous places availa ble to employees and
applicants for employment, a notice setting forth the provision s 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. Munici pal 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 origi n, sex, age,
marital status, personal appearance, sexual orientation, family responsibilities,
matriculation, political affiliation, or physical handicap.
2. The Design-Builder agrees to take affirmative action to ensure that applicants
are employed, and that employees are treated during employment, without
regard to their race, color, reli gion, national origin, sex, ag e, 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 empl oyees and
applicants for employment, notic es to be provided by the Depart ment setting
forth the provisions paragraphs 1 and 2 of Section 15.26.1(b) o f t h i s
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-d iscrimination
requirements set forth in Section 15.26.3.
5. The Design-Builder agrees to send to each labor union or repres entative of
workers with which it has a collective bargaining agreement, or other contract
or understanding, a notice to be provided by the Department, ad vising each
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labor union or workers' representative of the Design-Builder’s commitments
under this Section 15.26.1, 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 15.26.1, and to require
under terms of any Subcontractor a greement each Subcontractor t o permit
access of the Subcontractors, books, records, and accounts for such purposes.
7. The Design-Builder shall include in every subcontract this Section 15.26.1
so that such provisions shall be binding upon each subcontractor or vendor.
8. The Design-Builder shall take such action with respect to any s ubcontract as
the CO may direct as a means of enforcing these provisions, including sanctions
for noncompliance; provided, however, that in the event the Des ign-Builder
becomes involved in, or is threatened with, litigation with a S ubcontractor 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 t he interest of the
District.
Section 15.27.2 Pregnant Workers Fairness
a. The Design-Builder shall comply wi th the Protecting Pregnant Wo rkers 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 m edical conditions, or breastfee ding 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 e mployee's conditions or privile ges of
employment, including failing to r e i n s t a t e t h e e m p l o y e e w h e n t he need for
reasonable accommodations ceases to the employee's original job o r t o a n
equivalent position with equivalent:
i. Pay;
ii. Accumulated seniority and retirement;
iii. Benefits; and
iv. Other applicable service credits;
3. Deny employment opportunities to an employee, or a job applicant, if the denial
is based on the need of the employer to make reasonable accommo dations to
the known limitations related to pregnancy, childbirth, related medical
conditions, or breastfeeding;
4. Require an employee affected by pr egnancy, childbirth, related medical
conditions, or breastfeeding to a ccept an accomm odation that th e employee
chooses not to accept if the employee does not have a known limitation related
to pregnancy, childbirth, relat ed medical conditions, or breast feeding or the
accommodation is not necessary for the employee to perform her duties;
5. Require an employee to take leav e if a reasonable accommodation can be
provided; or
Page 84
6. Take adverse action against an employee who has been absent fro m work as a
result of a pregnancy-related condition, including a pre-birth complication.
c. The Design-Builder shall post and maintain in a conspicuous place a notice of rights
in both English and Spanish and provide written notice of an employee's right to a
needed reasonable accommodation related to pregnancy, childbirth, related medical
conditions, or breastfeeding pursuant to the PPWF Act to:
1. New employees at the commencement of employment;
2. Existing employees; and
3. An employee who notifies the employer of her pregnancy, or other condition
covered by the PPWF Act, within 10 days of the notification.
d. The Design-Builder shall provide an accurate written translation of the notice of rights
to any non-English or non-Spanish speaking employee.
e. Violations of the PPWF Act shall be subject to civil penalties as described in the PPWF
Act.
Section 15.27.3 UNEMPLOYED ANTI-DISCRIMINATION
a. The Design-Builder shall comply with the Unemployed Anti-Discri mination 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 indicati ng that an individual's status a s
unemployed disqualifies the individual for the job; or
ii. Any provision stating or indicat ing that an employment agency w ill not
consider or hire an individual for employment based on that ind ividual's
status as unemployed.
c. Violations of the Unemployed Anti-Discrimination Act shall be subject to civil penalties
as described in the Anti-Discrimination Act.
Section 15.28 ASSIGNMENT OF CONTRACT PAYMENTS
a. Subject to Section 15.28, in accordance with Title 27 DCMR Section 3250, the Design-
Builder may assign due or to become due as a result of the performance of this Design-
Builder to a bank, trust company, or other financing institution funds.
b. Any assignment shall cover all unpaid amounts payable under this Agreement and shall
not be made to more than one party.
c. Notwithstanding an assignment of Contract payments, the Design- Builder, not the
assignee, is required to prepare invoices. Where such an assig nment has been made,
the original copy of the invoice must refer to the assignment a nd must show that
payment of the invoice is to be made directly to the assignee as follows:
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“Pursuant to the instrument of assignment dated ___________, ma ke payment of this invoice
to (name and address of assignee).”
Section 15.29 FREEDOM OF INFORMATION ACT (“FOIA”)
The District of Columbia Freedom of Information Act, at D.C. Official Code § 2-532 (a-3) ,
requires the District to make available for inspection and copy ing any record produced or
collected pursuant to a District contract with a private contractor to perform a public function,
to the same extent as if the record were maintained by the agency on whose behalf the contract
is made. If the Design-Builder receives a request for such inf ormation, the Design-Builder
shall immediately send the request to the PM designated in Section 1.3 of this Agreement, who
will provide the request to the FOIA Officer for the agency wit h programmatic responsibility
in accordance with the D.C. Freedom of Information Act. If the agency with programmatic
responsibility receives a request for a record maintained by the Design-Builder pursuant to the
Contract, the PM will forward a copy to the Design-Builder. In either event, the Design-
Builder is required by law to provide all responsive records to the PM within the timeframe
designated by the PM. The FOIA Officer for the agency with programmatic responsibility will
determine the releasability of the records. The District will reimburse the Design-Builder for
the costs of searching and copying the records in accordance wi th D.C. Official Code §2-532
and Chapter 4 of Title 1 of the D.C. Municipal Regulations.
Section 15.30 CAMPAIGN FINANCE REFORM ACT
Prior to the execution of this C ontract, the Design-Builder sha ll complete and submit to the
Department a completed Campaign Finance Reform Act Self-Certifi cation Form, Exhibit T,
pursuant to D.C. Official Code § 1-1161.01.
Section 15. 31. Equal Employment Opportunity (“EEO”)
Each Offeror shall submit an EEO policy form substantially in the form of Exhibit E.
Section 15.32 DGS Turn Over/Close Out Manual
Deliverables shall include those outlined in Exhibit U.
Section 15.33 NONPROFIT FAIR COMPENSATION ACT OF 2020, D.C. Code § 2-
222.01 et seq
Section 15.33.1 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 organi zation's unexpired Negotiated I ndirect 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 age ncy within the past 2 years; ho wever, a nonprofit
organization may request to renegotiate indirect costs rates in accordance with Section
15.33.2; 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 organiza tion'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.
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Section 15.33.2 If this contract is funded by a federal agency, indirect costs shall be consistent
with the requirement s for pass-through entities in 2 C.F.R. § 2 00.331, or any successor
regulations.
Section 15.33.3 The Contractor shall pay its subcontractors which are nonprofit organizations
the same indirect cost rates as the nonprofit organization subc ontractors would have received
as a prime contractor.
Section 15.34 Living Wage Act.
I n a d d i t i o n t o t h e r e q u i r e m e n t s s e t f o r t h i n t h e F i r s t S o u r c e Employment Agreement, the
Design-Builder shall comply with all applicable provisions of t he Living Wage Act of 2006,
Exhibit Q , as amended (codified at D.C. Official Code §§ 2-220.01 et seq .) and its
implementing regulations.
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ARTICLE 16- TERMINATION OR SUSPENSION
Section 16.1 All terminations or suspensions arising out of or under this A greement 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 GM P 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 partic ular, but without limitation, the
Department may terminate the Agreement if:
1. The Design-Builder fails to pe rform 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 w orkmanlike 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, Su bcontractors or
suppliers when payment is due; or
4. The Design-Builder becomes ins olvent, makes an assignment fo r the benefit of
creditors, files a voluntary petition under any chapter of the Bankruptcy Code or has an
involuntary petition filed agains t it under any chapter of the Bankruptcy Code, or the
Design-Builder has a receiver appointed, or files for dissoluti on or otherwise is
dissolved; or
5. The Design-Builder fails to pa y 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 n otice of its
intent to terminate the Agreement, under this Section.
Section 16.3.2 If the Department terminates th e Agreement for default, the De partment will
have the right to take over the Work, to accept assignment of s ome 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 expe dient, including accepting assi gnment of all outstanding
Subcontracts and Supply Agreements.
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Section 16.4 Termination for Convenience.
The Department may terminate the Contract in whole or specified part, for its convenience, for
any reason. The notice of termination shall state the effective date of termination, the extent of
the termination, and any specific instructions. The termination for convenience that arises out
of or under this Agreement shall be in accordance with the term s of the Standard Contract
Provisions (Construction Contracts and Architectural/Engineering Services Contracts).
Section 16.5 Continued Responsibility After Termination.
If the Design-Builder is terminated, for default, for Convenien ce or otherwise, the Design-
Builder shall remain responsible for defects or non-conformities in all Work performed to the
date of the termination.
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Article 17 – OTHER CONDITIONS AND SERVICES
Section 17.1 This Agreement and the rights and obligations of the Departmen t and Design-
Builder herein are subject to the approval of the Council of the District of Columbia.
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Article 18 – CHANGES IN THE WORK
Section 18.1 Change s Authorized.
In accordance with the Standard Contract Provisions (Construction Contract) and the Standard
Contract Provisions for Architectural and Engineering services Contracts, the Department may,
without invalidating the Agreement, and without notice to or ap proval of any surety, order
changes in the Work, including additions, deletions or modifications. Any such change must
be conveyed by the Department t o the Design-Builder via a writt en Change Directive or
Change Order.
Section 18.2 Executed Change Dir ective/Change Order Required.
Only a written Change Directive or Change Order, executed by the Department’s Contracting
Officer, may make changes to the Agreement. In particular, but without limitation, a written
Change Directive or Change Order executed by the Department’s C ontracting Officer is the
only means by which changes may be made to the Substantial or F inal Completion Dates, the
Design-Build Fee, or the GMP.
Section 18.3 Departme nt-Initiated Changes
1. If the Department wishes to make a change in the Work or to acc elerate the Work, it
will execute and issue to the 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 Da tes and/or the GMP
should be adjusted to take the Change Order or Change Directive into account.
2. Within ten (10) days of receiving a Change Directive, the Design-Builder shall provide
the Department with a written st atement of all changes in the A greement, including,
without limitation, any changes to the Substantial or Final Com pletion Dates or the
GMP to which it believes it is entitled as a result of the Change Directive. If additional
time is sought, a schedule analysis supporting the requested ex tension should be
included. The schedule analysis should include a written narrat ive explanation. If a
change in the GMP is sought (or if the Department has requested a deduct change), the
statement should include a breakdown, by line item, of the esti mated cost changes
attributable to the proposed change. The Department may request , and the Design-
Builder shall provide, further cost breakdowns, clarifications, Project documentation or
back-up if the Department reasonably believes such additional information is needed to
understand and evaluate the request. The additional information required may include
cost and pricing data in accordance with the Department’s regulations. Any requested
adjustment to the GMP shall be limited to increased Cost of the Work due to the Change
Directive. The Design-Builder is not entitled to any markup on any kind of Change
Orders except as authorized in Section 18.8, and if so authorized, any mark-up shall be
in accordance with Section 18.11.
3. If the Department has not yet directed the Design-Builder to pr oceed 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 GMP that is
justified by the Change Directive. If the Department and the D esign-Builder reach an
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agreement, the agreement shall be set forth in a Change Order a nd 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) day s after the Department
receives the Design-Builder’s de tailed statement pursuant to Section 18.3.2 and such
other Project documentation as t he Department may request, the Design-Builder may
assert a claim in accordance with the Agreement. In such a cas e , a n d s u b j e c t t o
adjustment via the claims and disputes process, the Department shall unilaterally grant
the Design-Builder such adjustments, if any, to the Substantial or Final Completion
Dates, the GMP, and/or the Preconstruction or Design-Build Fee as the Department has
judged to be appropriate.
Section 18.4 Notice of Change Event.
The Design-Builder must give the Department written notice of any Change Event within ten
(10) calendar days of the date on which the Design-Builder knew , or reasonably should have
known, of the Change Event. To the extent available, the notic e must state the nature of the
Change Event and descri be, generally, all changes in the Agreem ent to which the Design-
Builder believes it is entitled. Such notice is an express con dition precedent to any claim or
request for adjustment to the Substantial or Final Completion Dates, or the GMP arising from
the Change Event and, if the notice is not given within the req uired time, the Design-Builder
will have waived the right to any adjustment to the Substantial or Final Completion Dates, or
the GMP arising from the Change Event.
Section 18.5 Detailed Change Request.
Within twenty (20) days after giving notice of a Change Event, the Design-Builder shall submit
a written Change Request to the Department describing, in reasonable detail, all adjustments it
seeks to the Substantial or Final Completion Dates or the GMP as a result of the Change Event.
The Change Request shall include the same information as descri bed in Section 18.3 w i t h
respect to any Agreement changes the Design-Builder seeks due to the Change Event, and the
amount of any requested adjustment to the GMP shall be limited in accordance with Section
18.3.
Section 18.6 Changes to GMP.
Subject to the condition precedent that the Design-Builder has complied with the notice and
documentation provisions of this Article, and subject to the li mitations stated in this
Agreement, the Design-Builder is entitled to an adjustment to the GMP in the following cases:
1. If the Department issues a Change Directive or Change Order tha t directs the Design-
Builder to proceed with work that is beyond the scope of Work i ncluded within this
Agreement; or
2. The Design-Builder encounters di ffering site conditions or Haza rdous Materials not
identified in the Preconstruction Phase.
Section 18.7 Deductive Change Orders.
The Department reserves the right to issue deductive Change Ord ers (reducing the GMP or
modifying the Substantial or Fin al Completion Dates to an earli er date) when changes are
effected, by Change Directive or otherwise, which will decrease the cost of completing the
Work or the time within which it can be completed.
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Section 18.8 No Adjustments to Fee.
The Design-Builder understands and agrees that the Design-Build Fee shall not be increased
or decreased as a result of any Change Orders or Change Directi ve. 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 o f work contemplated by this
Agreement. The term general scope of work shall mean a state-o f-the-art recreation center
facility that is consistent with the Department’s program of re quirements 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 a d d i t i o n a l f e e s o r g e n e r a l
conditions unless (i) the Department makes additions to the sco pe provided for in this
Agreement that cause the GMP, either individually or in the agg regate, 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 Order s or Contract Modifications are Final.
The Design-Builder agrees that a ny Change Order or Contract Mod ification executed by the
Department and Design-Builder con stitutes its full and final ad justment for all costs, delays,
disruptions, inefficiencies, accelerations, schedule impacts, or other consequences arising from
the change modification in question, whether a Change Directive, or a Change Event, or from
any claimed cumulative effect of changes made to the date of th e Change Order or Contract
Modification, and that no further adjustments in compensation or time shall be sought or made
with respect to the Change Directive or the Change Event giving rise to the Change Order or
Contract Modification. Although th e Parties anticipate that mo st Change Orders or Contract
Modifications will not require an adjustment to the General Con ditions Cost, if the Work
described in a Change Order or C ontract Modification requires an increase or decrease in the
Lump Sum General Conditions Cost (i.e. because such a Change requires additional field staff
or other equipment that would be classified as General Conditions Costs), the Change Order or
Contract Modification shall con tain an increase to the Design- Build Fee adjusting such
amount. The cost of processing a Change Order or Contract Modi fication shall not be
considered an event that will require an increase in the Lump Sum General Conditions Cost.
Section 18.10 Failure to Agree.
If the Design-Builder claims entitlement to a change in the Agr eement, 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 appropri ate amount of the adjustment in
time or compensation, the Department will unilaterally make suc h changes, if any, to the
Agreement, as it determines are appropriate pursuant to the Agr eement. 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 markup for Change Order work shall be as follows:
1. Intervening tier Subcontractors shall be entitled to a mark-up of five percent (5%)
(Covering home office overhead, the cost of insurance and bonds , field supervision,
general conditions and profit) on Work Performed by lower-tier Subcontractors;
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2. To the extent permitted by Section 18.8 , the Design-Builder shall be entitled to an
increase in its Design-Build Fee a t a maximum rate of (2%) on w ork performed by
Subcontractors. Such markup shall cover the same cost elements that were included in
the Design-Build Fee;
3. Direct Cost of the Work shall include, but not be limited to: ( Direct Cost of the Work
does not, however, include home office overhead, field supervision, general conditions
or profit of either the Subcontractor or the Design-Builder. N o 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 benef its 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 affi liate of, nor a subsidiary of, t he Design-Builder
will be based on receipted invoices which shall not exceed rate s given in the
current edition of the Rental Rate Blue Book for Construction E quipment.
published by Data Quest. If actu al 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 t hat 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 ba sed solely on an
hourly rate derived by dividing the current appropriate monthly rate by 176
hours. No payment will be made u nder any circumstances for repa ir costs,
freight and transportation charge s, fuel, lubricants, insurance , any other costs
and expenses, or overhead and pr ofit. Payment for such equipmen t made idle
by delays attributable to the Government will be based on one-half the derived
hourly rate under this subsection.
(d) Materials. Incorporated and unincorporated materials as permitted under
Section 9.1.
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Article 19 – CLAIMS & DISPUTE RESOLUTION
Section 19.1 All claims or disputes arising out of this Agreement shall be governed by the
terms of the Standard Contract Provisions (for Architectural an d Engineering Services and
Construction Contracts).
Section 19.2 Notwithstanding any other provis ion of this Agreement to the c ontrary, neither
party including its officers, agents, servants, and employees, shall be liable to the other for lost
profits or any special, indirect, incidental, or consequential damages in any way arising out of
this Agreement however caused und er a claim of any type or natu re based on any theory of
liability (including, but not limited to contract, tort, or warranty) even if the possibility of such
damages has been communicated.
For the avoidance of confusion, t he Parties agree that this pro vision does not affect the
Department’s ability to assess Liquidated Damages as set forth in Section 14. Furthermore, the
Parties agree that any acceleration costs required to complete the modernization work described
in this agreement shall not be considered consequential damages for purposes of this provision.
Page 95
Article 20 - EXHIBITS
Exhibit A Schematic Design
Exhibit B Preliminary Project Schedule
Exhibit C Deliverable List
Exhibit D SBE Subcontracting Plan
Exhibit E Equal Employment Opportunity Statement
Exhibit F Key Personnel
Exhibit G1 Davis-Bacon Act Wage Determination
Exhibit G2 Title 29 Code of Federal Re gulations (“CFR”) Part 5.5
Exhibit H Department’s Designated Representatives and Contracting Officers
Exhibit I Design-Builder’s Designated Representatives
Exhibit J1 Standard Contract Provisions, General Provisions (Construction)
Exhibit J2 Standard Contract Provisions (Architecture/Engineering)
Exhibit K Form of Lien Waiver
Exhibit L Form of GMP Amendment
Exhibit M1
Exhibit M2
ESA No. 1 Budget Sheet
ESA No. 1 Assumptions and Qualifications
Exhibit N Close-out Deliverables
Exhibit O Subcontractor Performance Evaluation Form
Exhibit P Award Pool Determination
Exhibit Q The Living Wage Act of 2006
Exhibit R First Source Em ployment Agreement and Revised Plan
Exhibit S BIM Requirements
Exhibit T Cam paign Finance Reform Act Self-Certification Form
Exhibit U DGS Project Turnover Manual
IN WITNESS WHEREOF, the Parties have executed this Agreement (DCAM-23-CS-RFP-
0014) through their duly authorized representatives and effecti ve as of the last date written
below.
DEPARTMENT OF GENERAL SERVICES CHIARAMONTE CONSTRUCTION
an agency within the executive branch COMPANY
of the Government of the District of Columbia
By: ___ By:
N a m e : N a m e :
T i t l e : T i t l e :
D a t e : D a t e :
Frank Chiaramonte
President
June 4, 2026
EXHIBITS A TO U
(Click the link below)
DCAM-23-CS-RFP-0014 Hillcrest Aquatic Center (Exhibits A to U)