Attachment_G-BOA-DCAM26CSRFQ0006_Construction_Projects.pdf

Contracts & Procurement

Department of General Services 3924 Minnesota Avenue, NE, Washington D.C. 20019

BASIC ORDERING AGREEMENT

CONSTRUCTION PROJECTS

DCAM-26-CS-RFQ-0006

THIS BASIC ORDERING AGREEMENT (“Agreement” or “Contract” or “BOA”) is made by and between the DISTRICT OF COLUMBIA GOVERNMENT, acting by and through its

DEPARTMENT OF GENERAL SERVICES (the “Department” or “DGS”) and (Insert

Contractor) duly organized under the laws of Washington, DC and with a place of business at

(Contractor’s address), Washington, DC (Insert Zip code) (the “Contractor” and collectively, the

“Parties”).

ARTICLE 1

NATURE OF AGREEMENT

Section 1.1 Nature of Agreement. This Agreement is issued pursuant to the Department’s

Request for Qualifications (“RFQ”) for Construction Projects (Solicitation Number DCAM-26-

CS-RFQ-0006) (the “RFQ”). The Contractor, by virtue of this Agreement, shall be included on the

Department’s roster of contractors eligible to compete, as set forth in Section 1.3 of this

Agreement, with other pre-qualified contractors on construction projects for various District of

Columbia Public Schools (“DCPS”) facilities, Department of Park and Recreation (“DPR”) facilities, and municipal facilities. This Agreement does not authorize any specific work or constitute a guarantee that any work will be assigned to the Contractor. All work will be awarded and released through individual Task Order Agreements as set forth in Section 1.4 of this Agreement.

Section 1.2 This Agreement includes all terms herein, any and all Task Order Agreements, the Department’s Standard Contract Provisions for Construction Contracts and

Architectural/Engineering Contracts, if applicable, as amended, attached hereto as Exhibit A1 and

Exhibit A2, all other exhibits attached hereto, and/or any document(s) incorporated by reference.

Section 1.3 Competitive Bidding.

Section 1.3.1 For each project identified and funded by the Department to be competed among the pre-qualified contractors that entered into BOAs pursuant to the RFQ, the Department will develop a scope of work. The scope of work will be issued to three (3) or more of the contractors via a Request for Task Order Proposals (“RFTOP”), and in most cases, each of those

Contractors will be provided with an opportunity to walk the project with the Department’s representatives in order to better understand and clarify the required work. Offerors must ensure they have sufficient capacity to meet the contract requirements prior to submitting their proposal. An offeror that lacks adequate capacity may be excluded from evaluation and deemed ineligible for an award.

Section 1.3.2 The Department contemplates that the scopes of work that will be issued to contractors during the RFTOP phase will not include complete drawings. Thus, the Parties acknowledge and agree that the contractors may be required to complete work on a design-build or design-assist basis or any such other method as described in the RFTOP.

Section 1.3.3 Each contractor will be required to submit, within the time allotted by the

Department, a lump sum price, guaranteed maximum price (“GMP”), or such other pricing as may be requested by the Department for the proposed work (such price, “Task Order Price”). Absent specific instructions to the contrary, proposed Task Order pricing should be “all inclusive” and should include sufficient funding to cover all of the Contractor’s costs necessary to complete the project, including, but not limited to, profit, home and field office overhead, supervision, labor, materials, equipment, bonds, insurance and any other professional services as may be required to complete the design, and construction other type of work or to obtain the necessary permits.

Section 1.3.3.1 The Contractor shall be responsible for using the then-current Davis-Bacon wage determination or Service Contract Act (as applicable) when developing its pricing for any given project.

Section 1.3.3.2 Offerors must ensure they have sufficient capacity to meet the contract requirements prior to submitting their proposal. An offeror that lacks adequate capacity may be excluded from evaluation and deemed ineligible for an award.

Section 1.3.4 The Department will select a contractor to be awarded each project primarily based on price, but the Department reserves the right to consider non-price factors when making such decisions and will also consider differences in scope and/or proposed finishes, equipment and materials. RFTOPs will detail the award criteria for each project.

Section 1.3.5 In the event the Contractor is selected for a project, the Contractor shall enter into a Task Order Agreement (“Task Order Agreement”). The Contractor shall not proceed with any work unless and until such Task Order Agreement is fully executed by the Department’s

Contracting Officer (“Contracting Officer” or “CO”) and the Contractor is directed to begin work.

Before the Department awards and executes Task Order Agreements, the Contractor will be required to resolve any clean hand compliance matters with relevant authorities including, but not limited, to the District of Columbia Office of Tax and Revenue (“OTR”).

Section 1.4 Task Order Agreements. Any and all work performed under any Task Order

Agreement issued pursuant hereto shall be governed by the terms and conditions set forth in the

BOA. It is contemplated that individual Task Order Agreements shall, in general, contain the following information: (i) a description of the scope of work included in such Task Order

Agreement; (ii) a lump sum price and/or such other terms of compensation for the work included in the Task Order Agreement’s scope of work; (iii) the Substantial Completion Date for the Task

Order’s scope of work and/or such other schedule requirements for Task Order Agreement; (iv) liquidated damages; (v) name and contact information for the assigned Program Manager and

Project Manager (each a “PM”); and (vi) any other specific requirements of the scope of work.

The Task Order Agreement shall also set forth a general description and requirements of the given project (such description and requirements, the “Project”).

Section 1.5 Base Year Term of Agreement. The Agreement shall be effective from the date of execution by both parties through one year from such date (such time period, the “Term”).

Any and all work assigned to the Contractor pursuant to a Task Order Agreement issued pursuant to the Agreement must be completed within the Term of the Agreement, and no later than the

Substantial Completion Date identified in the awarded Task Order Agreement.

Section 1.6 Option Year Term(s). The Department shall have the right to extend the term of this Agreement for four (4) one-year option periods (each such period, an “Option Year”), the first of which would begin on the date that the base year Term expires; and the second of which would begin on the date that Option Year 001 expires and end one year from the date that Option

Year 001 expires; the third of which would begin on the date that Option Year 002 expires and end one year from the date that Option Year 002 expires; and the fourth of which would begin on the date that Option Year 003 expires and end one year from the date that Option Year 003 expires. In the event the Department desires to extend the Term of this Agreement pursuant to this Section

1.6, the Department shall provide the Contractor with written notice of such election at least thirty

(30) days prior to the beginning of the applicable Option Year.

Section 1.7 Standard Task Order Provisions. Unless otherwise expressly stated in a

Task Order Agreement, all of the provisions of Article 2 through Article 14 of this Agreement shall be deemed incorporated into the Task Order Agreement as if set forth therein.

Section 1.8 Minimum Value of Agreement. This Agreement has a non-guaranteed minimum value of Fifty Dollars ($50) for the Base Year Term and each Option Year Term.

Section 1.9 Aggregate Not-to-Exceed Maximum Value of Agreement. In addition, this

Agreement has a non-guaranteed, aggregate not-to-exceed amount of Twenty-Five Million Dollars

($25,000,000.00) (the “NTE Amount”) for the Base Year Term and each Option Year Term. It is understood that the Contractor is not authorized to proceed with any work based solely on this

Agreement. Any and all work performed under this Agreement shall be authorized only by a written, awarded Task Order Agreement. In no event shall the Contractor be entitled to recover in the aggregate, pursuant to this Agreement and any and all Task Order Agreements issued pursuant hereto, more than the NTE Amount, unless and until the Department’s Contracting Officer has authorized the

Contractor to exceed the NTE Amount in advance and in writing through a duly executed Change

Order or Contract Modification to this Agreement. In addition, each Option Year Term shall have the same minimum value and NTE Amount as the Base Year Term; thus, for each Option Year exercised by the Department, the minimum value of services will be Fifty Dollars ($50) with an aggregate NTE Amount of Twenty-Five Million Dollars ($25,000,000.00).

ARTICLE 2

GENERAL PROVISIONS

Section 2.1 Relationship of Parties. The Contractor accepts the relationship of trust and confidence established with the Department by this Agreement, and covenants with the

Department to furnish the Contractor’s reasonable skill and judgment and to cooperate with the

Program Manager in furthering the interests of the Department. The Contractor shall use its best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Department.

Section 2.2 General Scope of Project. The Department anticipates that the projects assigned through Task Order Agreements pursuant to this Agreement will be construction projects and may include building repairs, upgrades, and tenant-fit-out improvements including, but not limited to, patching and plumbing, carpentry, masonry, electrical, heating, ventilation, and air conditioning

(“HVAC”), elevator, as well as small park and playground type projects as may be necessary at DCPS, DPR, and municipal sites and shall be performed on an as directed/as needed basis and must be completed by the substantial completion dates specified in each competitively bid Task Order Agreement.

Section 2.3 Completion Date. Subject to the Excusable Delay provisions of this

Agreement, the Contractor agrees to substantially complete the Project on or before the date set forth in the individual Task Order Agreement for any given project.

Section 2.4 Program Manager and Project Manager. The Department shall assign a

Program Manager and Project Manager (each a “PM”) to oversee the Contractor’s work under any

Task Order Agreement. The name and contact information for the assigned PMs will be specified in the applicable Task Order Agreement. The Contractor shall take direction from, and coordinate its work with, the assigned PMs. The Contractor will be required to develop work plans that are coordinated with, and acceptable to, the PMs assigned to each project. The Contractor acknowledges, however, that the Program Manager and Project Manager shall not be authorized to modify any of the rights or obligations of the Department or the Contractor pursuant to the Agreement, or to issue Task Order Agreements, Contract Modifications, Change Orders or Change Directives. The Contractor hereby acknowledges and agrees that only a duly authorized contracting officer of the Department shall have the authority to issue

Task Order Agreements, Change Orders or Change Directives on the Department’s behalf.

Section 2.5 Administrative Matters

Section 2.5.1 Use of ProjectTeam. The Contractor shall utilize the Department’s Prolog system to submit any and all documentation required to be provided by the Contractor for the Project, including, but not limited to, (i) requests for information; (ii) submittals; (iii) meeting minutes; and

(iv) proposed Changes.

Section 2.5.2 Invoice Submittal. The Contractor shall create and submit payment requests in an electronic format through the DC Vendor Portal, https://vendorportal.dc.gov. The Contractor shall submit proper invoices on a monthly basis. To constitute a proper invoice, the Contractor shall enter all required information into the Portal after selecting the applicable purchase order number which is listed on the Contractor’s profile.

Section 2.6 Central Office. During the Term of this Agreement, the Contractor shall maintain a central office that is staffed between the hours of 7am - 5pm Monday through Friday.

This office will be used to manage work associated with this Agreement. A separate office does not need to be established, and it is acceptable if the Contractor elects to run projects from its current office. The office should be equipped with telephone lines, a fax machine, email, access to the internet and such other equipment and supplies as are necessary to fulfill the work required under this Agreement.

Section 2.7 Coordination with DGS

Section 2.7.1 Working Hours. The Contractor is required to coordinate with the assigned

Project Manager for each individual project. The work may be performed during normal business hours; however, the Contractor may be required to work after hours or on weekend and holidays so as to not adversely impact the work of the District of Columbia employees/and or contractors.

Normal business hours shall be between 7am and 6pm, with exception given to DCPS sites which are between 3:30 pm and 8 pm to accommodate school programming. The Contractor will base its bid on normal working hours; off-peak rates will be handled on a case by case basis during price negotiations for projects requiring work after normal business hours. The Contractor will be required to develop work plans that are coordinated with, and acceptable to, the Project Manager and/or the Program Manager assigned to the Task Order Agreement. If work is to be performed in an occupied facility, the Contractor will be required to submit an initial coordination plan

(“Coordination Plan”) with its Task Order proposal for the project describing how the Contractor will work with the Department and the facility occupants to ensure that the project proceeds smoothly in order to minimize impact on facility operations. Such Coordination Plan would be evaluated as part of the bidding process described in Section 1.3 above.

Section 2.7.2 Supervision & Coordination. The Contractor shall properly supervise and coordinate its work. At a minimum, the Contractor will undertake the following tasks:

(1) Participate and assist in Project/Planning meetings;

(2) Maintain full-time on-site construction supervision and provide daily inspections, https://vendorportal.dc.gov/ quality control, monitoring, coordination of various trades, record drawings, and daily work log;

(3) Coordinate work with any on-site personnel so as to ensure that their activities are not adversely affected;

(4) Conduct periodic progress meetings following a Contractor generated agenda with the Program Manager;

(5) Provide general safety and signage and posting for the project and see that each subcontractor prepares and submits adequate safety program and monitoring throughout the project;

(6) Obtain all job permits and approvals from the Department of Buildings (“DOB”) that are required to perform and complete the work, unless otherwise noted herein or in the Task Order Agreement;

(7) Prepare payment requests, verify accuracy and forward to Department for approval and payment;

(8) Assemble close-out documents required;

(9) Provide assistance to the Department through all applicable warranty periods.

(10) Coordinate its work with all third parties so as not to delay the critical path of the

Project; and

(11) Prepare and submit to the Department construction meeting minutes, progress meeting minutes, daily logs, inspection reports, preliminary and baseline schedules, (Primavera format) and schedule updates demonstrating the critical path of the

Project (Primavera format).

ARTICLE 3

PRECONSTRUCTION DELIVERABLES

Section 3.1 Schedule. Within seven (7) days of the issuance of a Notice to Proceed

(“NTP”) for any Task Order Agreements awarded by the Department, the Contractor shall be required to submit to the Department for its approval a schedule for the project. Such schedule shall include a schedule for submittals and key milestones that are reasonably acceptable to the

Project Manager. The Contractor shall not begin any construction activities until the Project

Manager has approved a schedule for the Task Order Agreement. Unless otherwise authorized by the Task Order Agreement, prior to mobilizing to the Project site and commencing work, the

Contractor shall complete those activities set forth in this Section 3.1 including Sections 3.2, 3.3,

3.4 ,3.5, 5.13, 5.14 and 5.15.

Section 3.2 Potential Subcontractors and Suppliers. Within seven (7) days of the issuance of NTP or the timeframe specified in each Task Order Agreement, and after the award and issuance of a Task Order Agreement by the Department, the Contractor shall furnish to the Project

Manager a list of the subcontractors and suppliers that will work on this Project as well as a general description of each such subcontractor’s scope of work. Within five (5) business days after such list is submitted, the Project Manager shall advise the Contractor if it has any objection to any of the listed subcontractors or suppliers. In the event the Project Manager has a reasonable objection to any such subcontractor or supplier, the parties shall discuss such objection and agree on an appropriate course of action.

Section 3.3 Design Services. Prior to providing its bid for a Task Order Agreement, the

Contractor will have an opportunity to review and ask questions regarding the scope of work for the Task Order Agreement and to ascertain what design services, if any, are necessary in order to complete the Project and which will be included in its price the costs of any necessary design services, and the Contractor shall be required to provide, at no additional cost to the Department, such design services as are necessary to implement the Project. The Contractor and the Project

Manager shall agree upon the exact design services to be required prior to the commencing of construction services.

Section 3.4 Design Reviews/Submittals. On or before the dates specified in the approved detailed schedule as required per Section 3.1, the Contractor shall submit the necessary design information (i.e. permit drawings, shop drawings, submittals, sketches, etc.) to the Project Manager for review and approval. Unless a different timeframe is established in the approved detailed schedule, the Project Manager shall have five (5) business days to review such documents. In the event the Project Manager finds such documents to be unacceptable, the Contractor shall be required to revise and resubmit such documents. The Contractor shall not commence construction activities unless and until such documents have been approved by the Project Manager. Any delays that result from design resubmissions shall be considered Non-Excusable. In addition, the

Contractor shall coordinate with the Program Manager and the Department’s architect/engineer (if applicable) with respect to requests for information (“RFIs”), architect’s supplemental instructions and other construction administration, as well as the District of Columbia Historic Preservation

Review Board (“DCHPRB”) and Commission of Fine Arts (“CFA”), as required.

Section 3.5. Permits. Unless otherwise specified in the Task Order Agreement, it is understood that the Contractor shall be required to secure and pay for any and all permits, governmental fees, licenses and inspections necessary for the execution and completion of the work. The Department shall cooperate with the Contractor in securing such permits, licenses and inspections; provided however, the Department shall not be required to pay the fees for such permits, licenses and inspections unless otherwise noted in the Task Order Agreement. The costs of any such fees or inspections are included in the Task Order Price.

ARTICLE 4

CONTRACT SUM

Section 4.1 Lump Sum Price or Other Terms of Compensation. For the work covered by any given Task Order Agreement, the Contractor shall be paid the lump sum price, GMP, or other terms of compensation set forth in the Task Order Agreement (“Contract Sum”) to fully complete the Project.

Section 4.2 Nature of the Contract Sum. The Contractor acknowledges and understands that the Contract Sum is based on the scope of work included with the Project Task Order

Agreement. It is understood and agreed that the Contract Sum represents the Contractor’s payment to fully complete the Project. The parties acknowledge and agree that it is their intent to have the

Contractor to construct and deliver a fully functional Project as contemplated in the Scope of Work for the Contract Sum and consistent with the Project Schedule. In furtherance of such intent, the

Contractor hereby assumes the risks associated with and shall be responsible for: (i) any changes in market conditions that affect the cost of labor or materials; (ii) coordination issues between any drawings for the Project; (iii) elements of work not shown on the Scope of Work, but which are reasonably inferable from the Scope of Work; (iv) cost associated with acceleration of the work and expediting of materials necessary to meet the Project Schedule which are the result of anything other than an Excusable Delay; and (v) the risk of subcontractor default.

Section 4.3 Risks Assumed by Contractor. By submitting a bid for any project, the

Contractor shall be deemed to have thoroughly examined the terms of the RFTOP, the Drawings and Specifications that may be included with the RFTOP, and shall constitute its acknowledgement that it has been provided with an opportunity to visit the Project site and that the Contractor has had the opportunity to become familiar with local conditions under which the work is to be performed. Further, in submitting any such bid, the Contractor shall be deemed to represent that it has satisfied itself that it can undertake the work for the stated cost. Among other things, by submitting a bid, the Contractor assumes the following risks: (1) the nature of the land and subsoil unless such conditions constitute a Differing Site Condition under Article 4.A of the Standard

Contract Provisions for Construction Contracts; (2) the form and nature of the site and surrounding areas; (3) details and levels of existing pipe lines, conduits, sewers, drains, cables or other existing services; (4) the quantities, nature and availability of the materials, tools, equipment and labor necessary for the completion of the work; (5) the means of access to the site and any accommodation that may be required; (6) uncertainties of weather and physical conditions at the site; and (7) in general to have itself obtained all necessary information as to risk contingencies, climatic, hydrological and natural conditions and other circumstances which may influence or affect his performance of the work.

Section 4.4 Allowances. To the extent that the Contract Sum related to a Task Order

Agreement includes one or more allowances, such allowances shall be reflected on the Schedule of Values attached to such Task Order Agreement. The Contract Sum associated with that Task

Order Agreement shall be adjusted (either upward or downward) by change order to reflect the actual cost of the work covered by such allowance. However, the Contractor shall not exceed the allowance amount specified in each Task Order Agreement without the Contracting Officer’s approval.

Section 4.5 Tax Exempt Status. The Department expects that the Project will qualify as tax-exempt under the applicable laws, and such tax exemption shall be reflected in the Contract

Sum.

Section 4.6 GMP Formation

The Design-Builder shall provide the Department with a GMP based on the Design Development

Documents. The Department anticipates an Early Start Agreement (“ESA”) and one subsequent

GMP package.

Section 4.6.1 Manage Bidding Process. The Design-Builder shall manage the trade bidding process in accordance with the approved bidding procedures and shall use commercially reasonable best efforts to obtain at least three (3) qualified and bona fide bids for each trade package. In the event that the Design-Builder submits a bid to self-perform any trade, a qualified fourth bid must be provided. The Design-Builder shall carefully document its procedures for making available bid packages to potential bidders, the contents of each bid package, discussions with bidders at any pre-bid meetings, bidders’ compliance with bid requirements, all bids received, the Design-Builder’s evaluations of all bids, and the basis for the Design-Builder’s recommendation as to which bidders should be chosen. The

Department shall be afforded access to all such records at all reasonable times so that, among other things, it may independently confirm the Design-Builder’s adherence to all contractual requirements including, without limitation, affirmative action requirements and subcontracting requirements.

Section 4.6.2 Prepare Bid Tabs. The Design-Builder shall provide the Department with an analysis of the bids received and a copy of each such bid. To the extent that the Design-

Builder’s award recommendation is based on scoping adjustments, the Design-Builder shall clearly identify the scoping adjustment and the need for such adjustments. In general, the bid tab shall be presented in tabular format that compares the bids received based on the comparative scope of work and any other relevant information (i.e. exclusions, past performance history, etc.).

Section 4.6.3 Submission of GMP Proposal. Based on the trade bids, the Design-Builder shall submit a GMP Proposal to the Department using ProjectTeam. The GMP Proposal shall include the following elements:

a) A list of drawings, specifications, addenda, general, supplementary, and other conditions on which the GMP is based.

b) A list of unit prices and allowance items and a statement of their basis.

c) Assumptions and clarifications made in preparing the GMP Proposal, noting in particular any exclusions. The assumptions and clarifications shall take precedence over the drawings and specifications. The Design-Builder shall prepare a separate memorandum that highlights any differences between the then approved drawings and the modifications made in the assumptions and clarifications. Such memorandum shall specifically address any changes in the Project aesthetics, functionality or performance.

d) The proposed GMP, including a statement of the detailed cost estimate organized by trade categories, allowances, contingency, and other items and the fees that comprise the GMP.

e) An update to the Project’s schedule to which the Design-Builder will agree to be bound.

This update shall be prepared in the same level of detail and in the same manner as the

Baseline Schedule, and without any change to the Substantial and Final Completion Dates unless approved by the Department’s Contracting Officer.

f) A subcontracting plan setting forth the names and estimated dollar volume of the work that will be performed by LSBDEs, as certified by the Department of Small and Local

Business Development, upon which the GMP is based.

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) Each GMP may include an agreed upon sum as the Design-Builder’s Contingency and the Owner-Controlled Allowance(s), each of which shall be identified as a separate line item in the GMP's Schedule of Values.

Section 4.6.4 Construction Contingency

i. The Design-Builder’s Contingency shall be utilized to compensate for the increased Cost of the Work incurred by the Design-Builder due to circumstances relating to the construction of that Project which resulted in an unavoidable increase in costs, except when deemed the responsibility of the Department in accordance with this Contract. If the Design-Builder fails to include all of the required scope of work in the bid packages, Design-Builder Contingency may be used to purchase the omitted scope until the Design-Builder’s Contingency balance reaches zero or until the balance equals the anticipated subcontractor modifications. All requests to use the Design-Builder’s Contingency shall be submitted as a Request for Change

Order (“RCO”). Charges to the Design-Builder’s Contingency shall not become due and payable until the RCO is approved in writing by the Department. If the Design-Builder’s

Contingency reaches zero, any cost overruns or charges that could have been charged to the

Design-Builder’s Contingency shall be the sole responsibility of the Design-Builder.

ii. If bids are received below the applicable line items in the GMP, the surplus will be added to the Design-Builder’s Contingency for that Project. If bids exceed the agreed-upon line items in a GMP, the deficiency will be charged to the Design-Builder’s Contingency for that

Project. However, such events shall not be caused to increase the GMP.

iii. Once all subcontracts anticipated by a GMP have been awarded, including any self-performed work, the Department may require the Design-Builder to reduce the Design-

Builder’s Contingency to an amount as agreed to by the parties to reflect the Design-Builder’s risk from that point in the Project forward.

iv. Upon Final Completion of the Project, any remaining Design-Builder’s Contingency, after Shared Savings, as explained below, shall be reduced to zero by a Contract

Modification, and the Design-Builder shall have no entitlement to the balance.

Section 4.6.5 Owner Contingency/Allowance(s)

i. The Department retains the right to increase the GMP in lieu of charging any cost to the

Owner contingency. Any unused Contingency, whether Department Contingency or the

Design-Builder Contingency, shall be reconciled to a zero balance via a Contract

Modification upon Final Completion.

ii. When the Design-Builder proposes to use the Owner contingency, the Design-Builder shall prepare an RCO, identifying the amount sought to be charged to the Owner contingency, the reasons why the amount should be charged to that Contingency, and demonstrating the satisfaction of the Department that the costs to be incurred are necessary for the Work and are the responsibility of the Department. At all times, the Design-Builder shall avoid and mitigate Department Contingency costs whenever possible. Before payment or as part of an audit, the Design-Builder and the Department shall have the authority to verify the actual costs incurred. No costs may be charged to the Owner contingency until the RCO is approved in writing by the Department and becomes a Change Order.

iii. The Owner contingency shall be an amount, determined by the Department, which will be available to compensate the Design-Builder for the increased Cost of the Work incurred by the Design-Builder due to a Contract Modification or to other increases in the Cost of the

Work which the Department determines, in its sole discretion, is its responsibility. The

Department may increase, decrease, or eliminate the Owner contingency at any time.

Section 4.6.6 Approval of GMP. 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 issue a Contract Modification. In the event the Department and the Design-Builder are unable to agree upon the GMP or the schedule for the Project, the

Department shall have the right to terminate the Task Order 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.

Section 4.6.7 Shared Savings. In the event there are GMP savings, excluding any Owner

Allowances and Owner Contingency, the GMP savings shall be split 90/10 with 90% allocated to the Department and 10% allocated to the Design-Builder. The maximum allocation to the Design-Builder shall be $2,000.00. Shared Saving will only be contemplated once all closeout and punchlist items are completed and a full financial log and subcontractor backup can be provided. The financial log shall include, a completed buyout log for all divisions and trades, a Construction Contingency log, an Owner Contingency and

Allowances log, and an Approved Change Order Log.

Section 4.7. Adjustments to Fee

The Contractor understands and agrees that the Design-Build Fee shall not be increased or decreased as a result of any Change Orders or Change Directive. In furtherance of this understanding, the

Contractor agrees that it shall not be entitled to an increase in the Lump Sum General Conditions

Cost or the Design-Build Fee by virtue of changes authorized by the Department unless such changes fall outside the general scope of work contemplated by this Task Order. The term general scope of work shall mean a state-of-the-art educational facility that is consistent with the

Department’s program of requirements and incorporates sustainable design initiatives. Without limiting the generality of the foregoing, it is understood and agreed that the Contractor shall not be entitled to any additional fees or general conditions unless: (i) the Department makes additions to the scope provided for in Task Order that cause the GMP, either individually or in the aggregate, to increase by more than ten percent (10%); or (ii) the Department makes additions to the scope provided for herein which (other than for punchlist or warranty work) require the Contractor’s services for the Project to extend beyond the Substantial Completion Date.

To the extent permitted above, the Contractor shall be entitled to an increase in its Design-Build Fee at a maximum rate of 2% on work performed by Subcontractor. Such markup shall cover the same cost elements that were included in the Design-Build Fee.

ARTICLE 5

CONSTRUCTION PHASE

Section 5.1 General. The Construction phase for the work covered by a Task Order

Agreement shall commence when the Project Manager issues an NTP for Construction. The

Contractor shall construct the work described on the approved design submittals including any work that is not specifically shown thereon but is reasonably inferable therefrom or necessary for a fully functioning Project. The work shall be carried out in a workmanlike and timely fashion. All materials and equipment to be incorporated into the Project shall be new and previously unused, unless otherwise specified, and shall be free of manufacturing or other defects.

Section 5.2 Mandatory Subcontract Provisions. To the extent the Contractor intends to subcontract a portion of the work, any subcontract in excess of $25,000 shall include the following provisions:

(1) that, to the extent of the Work or supply within the agreement’s scope, the

Subcontractor or supplier is bound to the Contractor for the performance of all obligations which the Contractor owes the Department under the Agreement;

(2) that the Subcontractor or supplier is not in privity with the Department and shall not seek compensation directly from the Department on any third-party beneficiary, quantum meruit, or unjust enrichment claim, or otherwise, except as may be permitted by any applicable mechanic's lien law;

(3) that the Department is a third-party beneficiary of the subcontract or supply agreement, entitled to enforce any rights thereunder for its benefit;

(4) that the Subcontractor or supplier consents to assignment of its agreement to the

Department, at the Department's sole option, if the Contractor is terminated for default;

(5) that the Subcontractor or supplier shall comply immediately with a written order from the Department to the Contractor to suspend or stop work;

(6) that the Subcontractor or supplier shall maintain records of all Work it is requested or authorized to do on a time and material or cost-plus basis, or with respect to claims that it has asserted on a time and materials or cost-plus basis, during the

Project and for a period of time specified in the General Conditions and requiring the Subcontractor or supplier to make those records available for review or audit by the Department during that time;

(7) that the Subcontractor shall obtain and maintain, throughout the Project, workers' compensation insurance in accordance with the laws of the District of Columbia

(this provision is not applicable to supply agreements.);

(8) that, if the Department terminates the Agreement for convenience, the Contractor may similarly terminate the subcontract or supply agreement for convenience, upon seven (7) days' written notice to the Subcontractor or supplier, and that the

Subcontractor or supplier shall, in such a case, be entitled only to the costs set forth in the Termination for Convenience provisions of this Agreement;

(9) that the Department shall have the right to enter into a contract with the

Subcontractor or supplier for the same price as its subcontract or supply agreement price less amounts already paid, if the Contractor files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it;

(10) that the Subcontractor or supplier shall not be entitled to payment for defective or non-conforming work, materials or equipment, and shall be obligated promptly to repair or replace non-conforming work, materials or equipment at its own cost;

Section 5.3 Certified Subcontractors. The Contractor shall not substitute or replace any

Subcontractor or supplier certified by the District of Columbia Department of Small and Local

Business Development (“DSLBD” or “Department of Small and Local Business Development”) without the Department's Contracting Officer and the Director of DSLBD’s prior written consent.

Section 5.3.1 Self-Performed Work. The Contractor and its affiliates may not carry out trade work with its own forces without the Department’s permission, which permission may be withheld or conditioned by the Department in its sole and absolute judgment. However, if you are self-performing, you have to get 3 other competitive bids.

Section 5.4 Payment by Joint Check in Certain Instances. If it comes to the

Department's attention that a Subcontractor or supplier has not been paid in timely fashion (other than for disputed amounts), and if the Contractor fails to cure the problem within five (5) calendar days after the Department gives it written notice of the failure to pay, the Department may make payments to the Subcontractor or supplier and Contractor by joint check, if permissible.

Section 5.5 Site Observations. The Contractor shall visit the site, become familiar with local conditions under which the work is to be performed and correlate personal observations with requirements of the Agreement, Task Order Agreement, and approved design submittals; as provided for projects solicited under the RFTOPs. The Contractor shall carefully study and compare the Agreement, Task Order Agreement, and approved design submittals with each other and with information furnished by the Department. Before commencing activities, the Contractor shall (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to the Contractor with the Agreement, Task Order Agreement, and approved design submittals; and (3) promptly report errors, inconsistencies or omissions discovered to the

Department. Once work is started, the Contractor assumes the responsibility and costs for the work and the cost of correcting work previously installed. Once work is started, Contractor assumes the responsibility and costs for the work and the cost of correcting work previously installed.

Section 5.6 Warranty of the Construction Work. The Contractor warrants to the

Department that materials and equipment furnished under Task Order Agreement will be of good quality and new and previously unused unless otherwise expressly permitted in writing, and shall be free of manufacturing or other defects and that for the one (1) year period following the

Substantial Completion Date the construction work will be free from defects not inherent in the quality required or permitted, and that the work will conform to the Scope of Work and/or any approved design documents. The Contractor’s warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. The Contractor and a representative of the Department shall walk the project together eleven (11) months after the

Substantial Completion Date to identify any necessary warranty work. In the event the Contractor fails to schedule such a walk, the warranty period shall be extended until such time as the

Contractor schedules such a walk.

Section 5.7 Extent of Responsibility and Site Conditions. The Contractor shall be entitled to submit a change request for differing site conditions only to the extent that such conditions could not have been discovered by a competent visual inspection of the site and are of unusual nature and differ materially from those ordinarily encountered and generally recognized as inhering to work of the character provided for in the Contract (such circumstances, “Differing Site Conditions”). The term Differing Site Conditions shall mean subsurface conditions on or adjacent to the Project site which differ materially from those indicated in the geotechnical reports prepared by the Contractor.

The term Differing Site Conditions shall also include unknown physical conditions at the site of an unusual nature which differ materially from those ordinarily encountered and generally recognized as inhering to work of the character provided for in this Contract. Prior to commencing construction, the Contractor shall be required to conduct a thorough review of the Project site and the surrounding area and shall document its findings. In the event the Contractor fails to undertake and document such a thorough review, the Contractor shall be deemed to have known of those conditions which a thorough review would have detected. Any Change Request related to Differing Site Conditions shall be made pursuant to the Standard Contract Provisions.

Section 5.8 Unsafe Materials / Hazardous Material (Reserved)

Section 5.9 Progress Meetings. The Contractor shall schedule and conduct at a minimum bi-weekly progress meetings at which the Department, the Program Manager and the Contractor and appropriate subcontractors can discuss the status of the work. The Contractor shall prepare and promptly distribute meeting minutes.

Section 5.10 Written Reports. The Contractor shall provide written reports to the Program

Manager on the progress of the entire work in accordance at least every other week, including, but not limited to, a baseline schedule and schedule updates with narrative demonstrating the critical path of the Project in Primavera format. The Contractor shall also maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, major equipment on the site, Work accomplished, problems encountered and other similar relevant data as the Department may reasonably require. The log shall be available to the Department, the architect/engineer and the Project Manager and/or the Program Manager and on a monthly basis a copy of the log shall be submitted to the Department.

Section 5.11 Key Personnel. The Contractor’s personnel should have the necessary experience and licenses to perform the required work. Toward that end, the Contractor should include within their Proposal a description of the staff available to perform this work and their qualifications.

The Contractor will not be permitted to reassign any of the key personnel unless the

Department approves the proposed reassignment and the proposed replacement. When submitting a Task Order proposal, at a minimum, the Contractor will be required to propose and commit to one or more specific Project Managers and Field Superintendents for the particular project. To carry out the work associated with the resulting Task Order Agreement, the Contractor shall provide at least the key personnel identified in its proposal which shall be included as an exhibit to the Task

Order, and indicate the function(s) each will carry out for the proposed project and indicate what percentage of each such persons time will be devoted to the Task Order Agreement project. The

Contractor shall not replace any of the key personnel without the Department's prior written approval.

Section 5.12 Work by Separate Contractors. The Department reserves the right to perform construction or operations related to the Project with Department’s own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site.

Section 5.13 Site Safety and Clean-Up. The Contractor will be required to: (i) provide a safe and efficient site, with controlled access, including the installation and provision of such safety barricades, enclosures and overhead protection as may reasonably be required by the

Department and as may be necessary to ensure a safe workplace or as may be required by OSHA or other applicable law, and to remove such at the end of the Work and leave the site in broom clean condition; (ii) be responsible for the security of its tools, equipment and materials that are stored at the site; (iii) provide wheel washing stations on site so as to prevent the accumulation of dirt and other refuse on the streets surrounding the Project site; (iv) be responsible for site security;

and (v) be responsible for the cost of temporary power used during the construction of the Project, including, but not limited to, the cost of installing such temporary wiring as may be required. Such safety and clean-up shall include, but not limited to, the following:

Section 5.13.1 Safety Plan. Prior to the start of construction activities, the Contractor shall prepare a safety plan for the construction phase conforming to OSHA 29 CFR 1926 (such plan, the “Safety Plan”). This plan will be submitted to the Department for its review and approval prior to the commencement of construction. Once such plan has been approved, the Contractor shall comply with it at all times during construction. The Contractor shall be required to revise the plan as may be reasonably requested by the Department. The cost of revising and complying with the plan shall not entitle the Contractor to an increase in the Task Order Agreement Price.

Section 5.13.1.1 Safety Barriers/Fences. As part of its responsibility for Project safety, the Contractor shall install such fences and barriers as may be necessary. The Contractor shall develop a plan that describes the proposed separation and the specific nature of the fences and barriers that will be used.

Section 5.13.1.2 Site Security. The Contractor shall be responsible for site security and shall be required to provide such watchman as are necessary to protect the site from unwanted intrusion.

Section 5.13.1.3 Exculpation. The right of the Department to comment on the Safety Plan and the nature and location of the required fences and barriers shall in no way absolve the

Contractor from the obligation to maintain a safe site.

Section 5.14 Site Logistics Plan. Prior to the start of construction activities, the Contractor shall prepare a Site Logistics Plan. The Site Logistics Plan shall address: (i) the manner in which the Contractor intends to organize the site; (ii) the location and description of site fences and other safety barricades intended to prevent the public from entering the site; (iii) the location of construction entrances and wheel washing stations; and (iv) parking restrictions and procedures that will apply to the employees of Contractor and its subcontractors.

Section 5.15 Quality Plan. Prior to the start of construction activities, the Contractor shall prepare a Quality Plan. The Quality Plan shall address: (i) the processes employed by the

Contractor to ensure quality assurance; (ii) to determine how items are checked for quality and which items need to be checked; (iii) list the specific quality materials used during the project including standards, guidelines, checklist, templates, procedures, user guides and processes; and how the Contractor will handle defective items.

Section 5.16 RESERVED

Section 5.17 Salvaged and Stored Items. he Contractor shall be responsible for salvaging and storing all items as identified by the Department in accordance with all applicable

District laws and regulations, after notifying the Department and receiving the Department’s permission to proceed.

Section 5.18 Sediment and Erosion Control. The Contractor shall be responsible for installing sediment and erosion control measures, inclusive of, but not limited to: silt fencing, inlet protection, stabilized construction entrances, and other control measures.

Section 5.19 Cutting and Patching. The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. All areas requiring cutting, fitting and patching shall be restored to the condition existing prior to the cutting, fitting and patching. The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Department or separate contractors by cutting, patching or otherwise altering such construction, or by excavation.

Section 5.20 Correction of Work.

Section 5.20.1 The Department shall be at liberty to object and to require the Contractor to remove forthwith from the Project site and the work and to promptly replace the superintendent, any foreman, technical assistant, laborer, agent, representative, or other person used by the

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