Draft_Agreement.pdf

Confidential

WASHINGTON SUBURBAN SANITARY COMMISSION

PROCUREMENT DEPARTMENT

REHABILITATION OF THE 102-INCH ANACOSTIA

TRUNK SEWER (PHASE II)

PROGRESSIVE DESIGN-BUILD

DRAFT AGREEMENT

EJCDC® D-512, Agreement Between Owner and Design-Builder for Progressive Design-Build.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

AGREEMENT

BETWEEN OWNER AND DESIGN-BUILDER

FOR PROGRESSIVE DESIGN-BUILD

THIS AGREEMENT is by and between Washington Suburban Sanitary

Commission (WSSC Water) (“Owner”) and

(“Design-Builder”).

PROJECT INFORMATION

Project: Rehabilitation of the 102-inch Anacostia Trunk Sewer (Phase II) Design-Build Contract: CIMH8245A26 (“Contract”)

Design-Builder’s Engineer: Design-Builder has designated [___________________] (“D-B Engineer”) for the performance of professional engineering services under this Contract.

Authorized Representatives: Owner and Design-Builder each hereby designates a specific individual authorized to act as representative with respect to the performance of responsibilities under this Contract. Such an individual shall have authority to transmit instructions, receive formal notices, receive information, and render decisions relative to this Contract on behalf of the respective party that the individual represents.

1. Owner’s Authorized Representative: Lawrence Cumberbatch, Project Manager, Pipeline Design Division, Engineering Team, Richard G Hocevar Building – 7th Floor, 14501 Sweitzer Lane, Laurel, MD 20707; lawrence.cumberbatch2@wsscwater.com; 301-206-8892.

2. Design-Builder’s Authorized Representative: [ ]

Owner and Design-Builder further agree as follows:

ARTICLE 1 – THE WORK

1.01 General Description: Design-Builder shall complete all Work as specified or indicated in the

Contract. The Work is generally described as the design, construction, and commissioning of the following: The Phase II rehabilitation of the 102-inch Anacostia Trunk Sewer (ATS) consisting of approximately 6,620 linear feet of trunk sewer, including field investigations, evaluation of alternatives, report preparation, permitting assistance, design of rehabilitation, and construction of the rehabilitation.

1.02 Work Stages:

A. Preliminary Stage: As set forth in more detail in Exhibit A, which is attached and incorporated by reference, Design-Builder shall perform the following in the Preliminary Stage: Study and Report services; drafting of Preliminary Technical Documents; early work packages for elements that can be completed prior to the primary pipeline rehabilitation; and mailto:lawrence.cumberbatch2@wsscwater.com

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

Construction Planning services including preparation of proposed Completion Stage Price.

B. Completion Stage: If Owner and Design-Builder advance to the Completion Stage pursuant to Paragraph 3.03, then Design-Builder shall perform the following in the Completion Stage:

Preparation of Construction Drawings and Construction Specifications, based on the Preliminary Technical Documents; Construction; Testing; Restoration; Commissioning; and Correction Phase services.

1. If Owner and Design-Builder do not advance to the Completion Stage pursuant to Paragraph 3.03, Owner may elect to retain the services of the D-B Engineer following termination of the Contract with the Design-Builder.

C. Regardless of stage, the Work is subject to the terms of the Standard General Conditions, and the requirements of the Contract Documents incorporated therein.

ARTICLE 2 – CONTRACT TIMES

2.01 Time of the Essence

A. All time limits for Design-Builder’s attainment of Milestones, Substantial Completion, and completion and readiness for final payment, as stated in the Contract, are of the essence of the Contract.

2.02 Contract Times: Part 1 - Preliminary Stage

A. Design-Builder shall complete the Work under the Preliminary Stage on or before 325 working days following the Effective Date.

B. In addition to Design-Builder’s Preliminary Stage completion commitment above, the parties shall meet the following Preliminary Stage Schedule:

PRELIMINARY STAGE SCHEDULE

Party Action Schedule

Design- Builder

Preliminary Stage Submittal #1 - Submit the following documents to the Owner:

1. Draft Preliminary Engineering Report

a. Conceptual design criteria

b. Alternatives evaluation and comparison costs

c. Recommended rehabilitation approach

d. Material specifications

2. Draft Preliminary (Class 3) Cost Estimate

3. Preliminary concept sketches and drawings for recommended rehabilitation method and identifying construction access locations and flow control approach

4. Plans and cost estimates for recommended early work packages

5. Safety Plan

6. Risk Register and other preliminary stage deliverables as described in Exhibit A

Within 90 working days of the Effective Date.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

Party Action Schedule

Owner Submit review comments of Preliminary Stage Submittal #1 package to Design-Builder

Within 30 working days of the receipt of Preliminary Stage Submittal #1 package from the Design-Builder.

Design- Builder

Preliminary Stage Submittal #2 – Submit the following documents to the Owner:

1. Final Preliminary Engineering Report

a. Conceptual design criteria

b. Conceptual schematic layouts & sketches

c. Necessary field surveys and topographic & utility mapping

Within 30 working days of the receipt of Owner’s comments.

Design- Builder

Preliminary Stage Submittal #3 – Submit the following documents to the Owner:

1. Draft 70% Design Drawings and Specifications

2. Draft Progress Schedule

3. Updated Risk Register with probabilities and costs assigned

Within 90 working days of submitting Preliminary Stage Submittal #2 to owner.

Owner Submit review comments of Preliminary Stage Submittal #3 package to Design-Builder

Within 30 working days of the receipt of Preliminary Stage Submittal #1 package from the Design-Builder.

Design- Builder

Preliminary Stage Submittal #4 – Submit the following documents to the Owner:

1. Final 70% Design Drawings and Specifications

2. Updated Progress Schedule

3. Final Early Procurement Package for long lead items (including approved equipment shop drawings)

4. Completion Stage Estimate with Risk Register items incorporated

5. GMP package(s)

Within 30 working days of the receipt of Owner’s comments.

Owner/ Design- Builder

Conduct Price and Schedule Negotiations with Design-Builder/Optional Off Ramp

Within 20 working days of receipt of Completion Stage Estimate.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

Party Action Schedule

Design- Builder

Furnish to Owner a Binding Completion Stage Price based on Paragraph 3.03 and Exhibit B7, Article 2.

Within 10 working days of successful negotiation of price with Owner.

Design- Builder

1. Furnish copies of the Binding Preliminary Technical Documents to Owner.

2. Furnish all documents required under Part 5 Contract Provisions.

Within 30 working days of successful negotiation of price with Owner.

Owner 1. Validate Part 5 Contract Provisions Documents.

2. With formal Commission approval issue Notice to

Proceed for Completion Stage.

Within 60 working days of acceptance of Part 5 Contract Provisions documents.

2.03 Contract Times: Completion Stage

A. The Completion Stage Work will be substantially completed within 390 working days after Owner approves a binding Completion Stage Price.

2.04 Liquidated Damages

A. Construction: Design-Builder and Owner recognize that time is of the essence as stated in Paragraph 2.01 and that Owner will suffer financial and other losses if the Completion Stage Work is not completed within the times specified in Paragraph 2.03, as such may be revised in accordance with the Contract. The parties also recognize the delays, expense, and difficulties involved in proving, in a lawsuit or arbitration proceeding, the actual loss suffered by Owner if the Completion Stage Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Design-Builder agree that as liquidated damages for delay (but not as a penalty):

1. Substantial Completion: Design-Builder shall pay Owner $2,390.00 for each day that expires after the time (as duly adjusted pursuant to the Contract) specified in Paragraph 2.03.A for Substantial Completion, until the Completion Stage Work is substantially complete.

2. Completion of Remaining Completion Stage Work: After Substantial Completion, if Design- Builder shall neglect, refuse, or fail to complete the remaining Completion Stage Work within the Contract Time (as duly adjusted pursuant to the Contract) for completion and readiness for final payment, then Design- Builder shall pay Owner $2,390.00 for each day that expires after such until the Completion Stage Work is completed and ready for final payment.

3. Liquidated damages for failing to timely attain Substantial Completion, final completion, and Milestones (if applicable) will not be imposed concurrently. Liquidated damages for failing to attain Substantial Completion shall take precedence.

B. Intermediate Milestones: Not Applicable.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

C. The parties agree that the above per diem amounts for liquidated damages are not penalties, and in each case, represent a fair and reasonable approximation by the parties at the time of execution of this Agreement of the potential damages the Owner will suffer and incur for each such day of delay, such damages being incapable of exact ascertainment and very difficult to estimate.

ARTICLE 3 – CONTRACT PRICE

3.01 Contract Price Definitions

A. For purposes of this Agreement, the following definitions apply:

1. Contract Price—The money that Owner has agreed to pay Design-Builder for performance and completion of the Preliminary and Completion Stage Work in accordance with the Contract Documents. Contract Price is comprised of the Preliminary Stage Price and the Completion Stage Price and, if and when used, the Owner’s Completion Contingency.

Contract Price is subject to and governed by any duly established Guaranteed Maximum Price.

2. Preliminary Stage Price—the portion of the Contract Price established in Paragraph 3.02, as Design-Builder’s compensation for the performance of the Preliminary Stage Work.

3. Completion Stage Price—the portion of the Contract Price established in Paragraph 3.03, as Design-Builder’s compensation for the performance of the Completion Stage Work.

4. Owner’s Completion Contingency—When applicable, a contingent amount included in the Contract Price for use by Owner, at its sole discretion, in funding the Completion Stage Price.

3.02 Preliminary Stage

A. For performance of the Preliminary Stage Work in accordance with the Contract Documents, Owner shall pay Design-Builder the Preliminary Stage Price (1) pursuant to the following compensation methods, and (2) in the amounts that follow, subject to adjustment under the Contract:

Category Compensation Method Amount Submittal # 1 Stipulated Price $ Submittal # 2 Stipulated Price $ Submittal # 3 Stipulated Price $ Submittal # 4 Stipulated Price $ Allowance for Additional Engineering Services

$300,000.00 $

Allowance for Preliminary Construction or Field Work

S700,000.00

Total: Preliminary Stage Price Stipulated Price $

B. Monetary amounts stated for portions of the Work to be performed on a Stipulated Price basis are fixed and binding.

C. For each phase of Work under the Preliminary Stage that is subject to Stipulated Price compensation under this section of the Agreement, Owner shall pay Design-Builder for performance of such Work the Stipulated Price specified.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

D. The Stipulated Price includes compensation for the subject Preliminary Stage Work and the services, labor, and materials furnished by Design-Builder’s Project Design Professionals and Construction Subcontractors, if any. Appropriate factors have been incorporated into the Stipulated Price to account for labor, overhead, profit, and expenses.

E. The portion of the Stipulated Price billed will be based upon Design-Builder’s estimate of the proportion of the total Preliminary Stage Work actually completed during the billing period to the Stipulated Price for the phase.

3.03 Completion Stage

A. As part of Construction Planning under the Preliminary Stage, Design-Builder is required to determine an estimate of the cost of completion of the Completion Stage Work, including completion of the design and all Construction labor, administration, equipment, materials, and subcontracts (“Completion Cost Estimate”). Owner and Design-Builder to collectively determine the portions of work that will be competitively subcontracted and bid. For categories of Construction that will be competitively bid, Design-Builder shall note all of these categories and provide cost estimates for each category. These estimates shall be included as part of the Completion Cost Estimate. Design- Builder shall use the Final Completion Cost Estimate as the basis for developing and submitting to Owner a proposed Schedule of Values. Design-Builder shall also use the final Completion Cost Estimate as the basis for developing and submitting to Owner a proposed Completion Stage Price. The proposed Completion Stage Price shall be based on the Contract Times established in this Agreement; or if no Contract Times were established with respect to the Completion Stage when the Agreement was executed, then upon proposed or mutually-agreed Contract Times developed during the Preliminary Stage and expressly stated as an essential part of Design- Builder’s Completion Stage Price submittal to Owner.

B. The proposed Completion Stage Price shall be based on the Contract Times established in this Agreement; or if no Contract Times were established with respect to the Completion Stage when the Agreement was executed, then upon proposed or mutually-agreed Contract Times developed during the Preliminary Stage and expressly stated as an essential part of Design- Builder’s Completion Stage Price submittal to Owner.

C. The proposed Completion Stage Price submitted by Design-Builder to Owner constitutes an offer that is binding on Design-Builder for 90 days, unless further extended by the Parties.

D. After receipt of the proposed Completion Stage Price from Design-Builder, Owner shall either

(1) accept the Completion Stage Price, in which case the Completion Stage Price is binding on both Owner and Design-Builder for the performance of the Completion Stage Work; or (2) enter into negotiations with Design-Builder regarding the Completion Stage Price and the corresponding scope of Completion Stage Work and schedule, or (3) reject the Completion Stage Price. If Owner accepts the Completion Stage Price, or an accord is reached through negotiations, the parties shall prepare and enter into a Definitive Contract Modification to the Contract, memorializing the acceptance of such Completion Stage Price and Completion Stage Work, as modified by any negotiations, and establishing an adjusted Contract Price (the Guaranteed Maximum Price (GMP)) based upon such Completion Stage Price.

If Owner does not accept the proposed Completion Stage Price, and negotiations (if any) are not successful, then the Contract shall terminate for convenience. Under such a termination for convenience,

1. Design-Builder shall be entitled to full payment for all Preliminary Stage Work;

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

2. Owner shall be entitled to use of the Preliminary Technical Documents and data from all field investigations;

3. Owner may elect to retain the services of the D-B Engineer following termination of the Contract; and

4. Owner shall assume and discharge all remaining payment obligations for any equipment or materials that Design-Builder has ordered or purchased for the Project pursuant to express authorization from Owner, and Design-Builder shall assign to Owner all rights and interests in any such equipment and materials.

E. Owner’s Completion Contingency. The Contract Price includes the following contingency for use by Owner at its sole discretion, under Owner’s full control, for purposes of paying for the Completion Stage Work: $0.00 (“Owner’s Completion Contingency”). After Owner’s acceptance of the Completion Stage Price, or an accord reached through negotiations, and entry into a Change Order or Definitive Contract Modification to the Contract, memorializing the acceptance of such Completion Stage Price, as modified by any negotiations, and establishing an adjusted Contract Price or Guaranteed Maximum Price based upon such Completion Stage Price, or after any termination of the Contract because an accord is not reached, the Contract Price shall be reduced by the remainder of any unused Owners’ Completion Contingency.

ARTICLE 4 – PAYMENT PROCEDURES

4.01 Submittal and Processing of Payments

A. Design-Builder shall submit Applications for Payment for processing by Owner in accordance with Article 14 of the General Conditions.

4.02 Progress Payments; Retainage

A. During the Preliminary Stage the Owner shall make payment within 30 days of the receipt of Design-Builder’s invoice for Preliminary Stage services. Owner shall not withhold any portion of such payment as retainage.

B. During the Completion Stage the Owner shall make progress payments on account of the Completion Stage Price on the basis of Design-Builder’s Applications for Payment on or about the last day of each month during construction as provided in Paragraphs 4.02.B.1 and 4.02.B.2 below, provided that such Applications for Payment have been submitted in a timely manner and otherwise meet the requirements of the Contract. All such payments will be measured by the Schedule of Values (and in the case of Unit Price Completion Stage Work based on the number of units completed) or, in the event there is no Schedule of Values, as provided elsewhere in the Contract.

1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Owner may withhold, including but not limited to liquidated damages, in accordance with the Contract:

a. 95 percent of the Cost of Completion Stage Work completed (or in the case of a Stipulated Price contract, such percentage of the value of Completion Stage Work

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

completed), with the balance being retainage.

2. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Design-Builder to 100 percent of the Completion Stage Work completed, less such amounts set off by Owner pursuant to Paragraph 14.01.G of the General Conditions, and less 200 percent of Owner’s estimate of the value of Completion Stage Work to be completed or corrected as shown on the punch list of items to be completed or corrected prior to final payment.

3. Notwithstanding the provisions above, no retainage shall be withheld with respect to the portion of an Application for Payment pertaining to engineering, design, and other professional services.

C. For Design-Builder’s fee: In the case of a Cost of the Completion Stage Work contract, progress payments on account of the Design-Builder’s fee will be made as follows:

1. If Design-Builder’s fee is a fixed fee (Stipulated Price), payments prior to Substantial

Completion will be in an amount equal to 95 percent of such fee earned to the date of the approved Application for Payment (less in each case payments previously made on account of such fee) based on the progress of the Completion Stage Work measured by the Schedule of Values established as provided in the General Conditions (and in the case of Unit Price Completion Stage Work on the number of units completed), and upon Substantial Completion in an amount sufficient to increase total payments to Design- Builder on account of his fee to 100 percent of Design-Builder’s fee. In the event there is no Schedule of Values the progress of the Completion Stage Work will be measured as provided elsewhere in the Contract.

D. Notwithstanding any provision above, no retainage shall be withheld with respect to the portion of a payment application pertaining to engineering, design, and other professional services.

E. Design-Builder shall not retain a percentage of payment due to a subcontractor that exceeds the percentage of payments retained by the Owner.

1. A subcontractor shall not retain a percentage of payments due to a lower tier subcontractor that exceeds the percentage of payment retained from the subcontractor.

4.03 Final Payment

A. Upon final completion and acceptance of the Completion Stage Work in accordance with Paragraph 14.06 of the General Conditions, Owner shall pay the final amount due.

ARTICLE 5 – INTEREST

Article not used.

ARTICLE 6 – INSURANCE AND BONDS

6.01 Insurance

A. Design-Builder shall obtain and maintain insurance as required by the General Conditions and Supplementary Conditions. D-B Engineer shall maintain professional liability insurance as required by the General Conditions and Supplementary Conditions.

6.02 Performance, Payment, and Other Bonds

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

A. As part of the Work under the Completion Stage, the Design-Builder shall furnish a performance bond and a payment bond, each in an amount equal to the Completion Stage Price as duly established and modified under this Contract, as security for the faithful performance and payment of Design-Builder’s obligations under the Completion Stage including payment of prevailing wages, when applicable, in accordance with Maryland’s prevailing wage statute. These bonds shall be in the form prescribed by the Contract and governed by the provisions of Paragraph 6.01 of the General Conditions. Design-Builder shall also furnish such other bonds as are required by other specific provisions of the Contract.

ARTICLE 7 – DESIGN-BUILDER’S REPRESENTATIONS

7.01 Representations

A. Design-Builder makes the following representations for Owner’s reliance:

1. Design-Builder has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents.

2. Design-Builder has visited the Site, conducted a thorough, alert visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

3. Design-Builder is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and performance of the Work.

4. Design-Builder has carefully studied all: (a) reports of explorations and tests of subsurface conditions at or adjacent to the Site, and all drawings of physical conditions relating to existing surface or subsurface structures at the Site, if any, that Owner has identified or made available to Design-Builder, especially with respect to Technical Data in such reports and drawings, and (b) reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site, that Owner has identified or made available to Design-Builder, especially with respect to Technical Data in such reports and drawings.

5. Design-Builder has considered the information known to Design-Builder itself, and to Construction Subcontractors and Project Design Professionals that Design-Builder has selected as of the Effective Date; information commonly known to design professionals, design-builders, and contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site-related reports and drawings (if any) identified in the Contract Documents or otherwise made available to Design-Builder, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Design-Builder; and (3) Design- Builder’s safety precautions and programs.

6. Based on the information and observations referred to in the preceding paragraph, Design-Builder agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary prior to entry into the Contract at the Contract Price, subject to the Contract Times.

7. Design-Builder is aware of the general nature of work to be performed by Owner and

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

others at the Site that relates to the Work as indicated in the Contract Documents.

8. Design-Builder has given Owner written notice of all conflicts, errors, ambiguities, or discrepancies that Design-Builder has discovered in the Contract Documents, and the written response from Owner is acceptable to Design-Builder.

9. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

10. Design-Builder’s entry into this Contract constitutes an incontrovertible representation by Design-Builder that without exception all prices in the Agreement are premised upon performing and furnishing the Work required by the Contract Documents.

ARTICLE 8 – ACCOUNTING RECORDS

8.01 Maintaining and Preserving Cost Records

A. Design-Builder shall keep such full and detailed accounts of materials incorporated and labor, services, and equipment utilized for the Work as may be necessary for proper financial management under this Agreement. Subject to prior written notice, Owner shall be afforded reasonable access during normal business hours to all Design-Builder’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to cost-based or time-based compensation or reimbursement of any type or description, including but not limited to direct labor hours, standard rate hours, reimbursable expenses, change order pricing, and the Cost of the Work (if applicable). Design-Builder shall preserve all such documents for a period of three years after the final payment by Owner.

8.02 Maintaining external funding application records

A. Design-Builder shall keep such full and detailed accounts of materials incorporated and labor, services, and equipment utilized for the Work as may be necessary for proper financial management under this Agreement. Subject to prior written notice, Owner shall be afforded reasonable access during normal business hours to all Design-Builder’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to cost-based or time-based compensation or reimbursement of any type or description, including but not limited to direct labor hours, standard rate hours, reimbursable expenses, change order pricing, and the Cost of the Work (if applicable). Design-Builder shall preserve all such documents for a period of three years after the final payment by Owner.

ARTICLE 9 – CONTRACT DOCUMENTS

9.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement

2. Exhibit A - Preliminary Stage Work

3. Exhibit B - General Conditions

4. Exhibit C - Supplementary Conditions

5. Exhibit D - Special Conditions

6. Exhibit E - MBE and SLBE requirements

7. Exhibit F - Insurance & Bonding Requirements

8. Exhibit G - Iran Investment Certification

9. Exhibit H - Contract Certification Affidavit

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

10. Exhibit I - WSSC Procurement Regulations

11. Exhibit J - Design-Builder’s Proposal

12. Conceptual Documents

a. Specifications.

1) General Requirements (Division 1 Specifications).

2) Technical Specifications (Division 2 through Division 50 Specifications).

b. WSSC Standard Details for Construction, latest edition.

c. WSSC Pipeline Design Manual, latest edition.

d. ASCE 38, “Standard Guideline for the Collection and Depiction of Existing Subsurface

Utility Data”.

e. WSSC Design Guidelines.

13. Proposal Amendment.

14. The following which may be delivered or issued on or after the Effective Date of the

Contract and are not attached hereto:

a. Prevailing Wage Rate Bond (in the form attached).

b. Performance Bond (in the form attached).

c. Payment Bond (in the form attached).

d. Other Bonds.

e. Construction Drawings.

f. Construction Specifications.

g. Change Orders.

h. Definitive Contract Modification.

i. Other Contract Modifications.

j. Field Orders.

k. Certificate of Substantial Completion.

l. Certificate of Final Acceptance.

m. Record Drawings and Record Specifications.

15. Other Exhibits to this Agreement (enumerated as follows):

a. Amendments (if any).

b. Addenda (if any).

c. Request for Proposals (RFP).

d. Notice to Proceed.

e. Notice of Award.

f. Special Provisions.

g. Federal Contract Provisions.

B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above).

C. There are no Contract Documents other than those listed above in this Article 9.

D. The Contract Documents may only be amended, modified, or supplemented as provided in the General Conditions.

ARTICLE 10 – MISCELLANEOUS

10.01 Terms

A. Terms used in this Agreement will have the meanings stated in the General Conditions and Supplementary Conditions.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

10.02 Assignment of Contract

A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party hereto ofany rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract.

10.03 Successors and Assigns

A. Owner and Design-Builder each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract.

10.04 Severability

A. Any provision or part of the Contract held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Design-Builder, who agree that the Contract shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

10.05 Design-Builder’s Certifications

A. Design-Builder certifies that it has not engaged in corrupt, fraudulent, collusive, coercive, or discriminatory practices in competing for or in executing the Contract. For the purposes of this Paragraph 15.05:

1. “corrupt practice” means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in the bidding process or in the Contract execution;

2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner,

(b) to establish Bid prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition;

3. “collusive practice” means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and

4. “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract.

5. “discriminatory practice” means the discrimination in any manner against any employee or applicant for employment by the Design-Builder or a Subcontractor on the basis of sex, race, creed, color, age, mental or physical handicap, sexual orientation, or national origin.

10.06 Other Provisions

A. None.

This document is a MODIFIED version of EJCDC® D-512, Copyright © 2016 by the National Society of Professional Engineers, American Society of Civil Engineers, and American Council of Engineering Companies, or is based in part on excerpts from EJCDC documents. Those portions of the text that originated in published EJCDC documents remain subject to the copyright.

IN WITNESS WHEREOF, Owner and Design-Builder have signed this Agreement.

This Agreement will be effective on [ ] (which is the Effective Date of the Contract).

OWNER: DESIGN-BUILDER:

By:

By:

Title:

[If Design-Builder is a corporation, partnership, LLC, or a joint venture, attach evidence of authority to sign. In the case of a joint venture, expand the signature section to accommodate execution of the Agreement by an authorized representative of each joint venturer.]

Attest:

Attest:

Address for giving notices:

Address for giving notices:

License No.:

(where applicable)

[If Owner is a corporation, partnership, or LLC, attach evidence of authority to sign. If Owner is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of this Agreement.]

[State a license number in those states or other jurisdictions where applicable or required.]

EXHIBIT A: Preliminary Stage Work

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EXHIBIT A – PRELIMINARY STAGE WORK

ARTICLE A1 – BASIC SERVICES: Preliminary Stage

A1.01 Study and Report Phase

A. The Study and Report Phase of the Preliminary Stage shall include:

1. Data collection and review, including record drawings, existing utility investigations, review of prior pipeline investigation reports and CCTV records, existing utility investigations, and site visits.

2. Field investigations including topographic surveys, geotechnical investigations, subsurface utility engineering (SUE), and test pits.

3. Environmental evaluations including wetland delineation and jurisdictional determination (if required); forest stand delineation; rare, threatened, and endangered species and other protected habitat review; and stream classification and impact evaluations.

4. Right of way evaluations and surveys to assess right of way impacts for construction and construction access.

5. Identifying permit requirements and preparing supporting documents for permit applications in coordination with the Owner Advisor (OA) Team.

6. Identifying easement and right of entry requirements and preparing supporting documents for WSSC Water Right of Way staff’s use.

7. Evaluating options for rehabilitating the ATS Phase II, including methods, materials, management of existing flow, construction access requirements, permitting and mitigation requirements, right of way requirements, and costs.

8. Evaluating the existing Relief Sewer and its capacity for flow bypassing during rehabilitation of the ATS, including an assessment of the 42-inch valve that connects the Relief Sewer to the Anacostia Pumping Station.

9. Preparing the Basis of Design Report that summarizes the evaluations with supporting data, sketches, and exhibits and provides a recommended approach and estimated cost.

10. Developing the scope of work and cost proposal for the work to be performed under the Preliminary Technical Documents Phase.

B. The Design-Builder shall:

1. Consult with Owner as needed to define and clarify Owner’s requirements for the Project, as set forth in the Conceptual Documents or otherwise, including design objectives and constraints; space, capacity and performance requirements; flexibility and expandability needs; quality standards; and Owner’s budgetary limitations.

2. Identify and review available data, record drawings, existing utility data, information, reports, facilities plans, and site evaluations; obtain such items from Owner or others.

3. Request that Owner obtain data or services that are not part of Design-Builder’s Preliminary Stage Services and are reasonably required to enable Design-Builder to complete its Preliminary Stage Services.

4. Identify one or more potential solutions to meet Owner’s Project requirements, and study

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and evaluate such potential solution(s).

5. Identify and analyze relevant requirements of governmental authorities having jurisdiction over the Project; consult with such governmental authorities as necessary.

6. Visit the Site(s) to review existing conditions and facilities, unless such visits are not necessary or applicable to meeting the Study and Report objectives.

7. Perform field investigations deemed necessary to support the alternatives evaluation, recommendations, and preliminary costs estimates for the Preliminary Engineering Report.

8. Perform field investigation and prepare data necessary to support the permit applications and right of way documents being prepared by the Owner.

9. Review any environmental assessments, impact statements, and permit documents furnished by Owner, and analyze the effect of any such environmental documents (including any mitigation measures identified in the documents) on the Project, including the contemplated design and construction.

10. Recommend to Owner those solutions which in Design-Builder’s judgment meet Owner’s requirements for the Project.

11. If identified in the negotiated Scope of Work for the Preliminary Stage or as part of a Contract Change Order, perform such preliminary field work, including sewer cleaning, dewatering, bypassing, and inspection, as determined to be necessary to effectively perform the evaluation of alternatives and develop a preliminary estimate of the cost of the Project.

12. Prepare a Preliminary Engineering Report (the “Report”, or “Basis of Design Report”) which will, as appropriate, contain an evaluation of alternatives, schematic layouts, sketches and conceptual design criteria, and appropriate exhibits; and indicate the applicable requirements, considerations involved, and Design-Builder’s recommended solutions. This Report will be accompanied by Design-Builder’s estimate of Design-Build Cost for each recommended solution and the Design-Builder’s Underground Facilities Procedure.

13. In the Report, advise Owner of any limitations on the use or applicability of the Report.

14. If requested to do so by Owner, assist Owner in identifying opportunities for enhancing the sustainability of the Project.

15. Use ASCE 38, “Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data” as the basis for developing a scope of work and procedure for the identification and mapping of existing utilities, consistent with the provisions of Paragraph

5.05 of the General Conditions regarding Underground Facilities.

16. Develop a scope of work and survey limits for any topographic and other surveys necessary for design.

17. If Owner and Design-Builder have not already stipulated that certain Work will be performed by Construction Subcontractors selected on a competitive-bid basis (or by Design-Builder if it bids on such work and is the successful bidder), identify Construction Subcontract bid packages that in Design-Builder’s judgment should be let by competitive bidding.

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18. Perform or furnish any additional Study and Report Phase tasks or deliverables established in the Preliminary Stage scope of work.

19. Furnish 4 paper and 1 electronic review copies of the Report (and any other deliverables) to Owner pursuant to the Preliminary Stage Schedule and review it with Owner.

20. Furnish 1 paper and 1 electronic copy of a Class 3 cost estimate

21. Furnish 1 paper and 1 electronic copy of a preliminary construction schedule, including itemized lead time estimates for any equipment requiring more than 3 months to deliver.

22. Revise the Report (and any other deliverables) in response to Owner’s comments, as appropriate, and furnish 4 paper and 1 electronic copy of the revised Report (and any other deliverables) to the Owner pursuant to the Preliminary Stage Schedule.

C. Design-Builder’s Work under the Study and Report Phase of the Preliminary Stage will be considered complete on the date when Design-Builder has delivered the copies of the revised Report (and any other deliverables) to Owner, and Owner provides written confirmation of acceptance of the Report.

A1.02 Preliminary Technical Documents Phase

A. The work under the Preliminary Technical Documents Phase shall include:

1. Performing any early construction tasks recommended by the PDB Team to be performed prior to the Completion Stage, such as the pipeline condition assessment as noted below.

2. Preparing the Preliminary Design documents (plans, outline specifications, calculations) to a 30% level of completion for WSSC Water review with an updated cost estimate.

3. Preparing Preliminary Design documents (plans, specifications, calculations) to a 70% level of completion with an updated cost estimate.

4. Developing the scope of work, schedule, risk register, and cost proposal for the work to be performed under the Completion Stage that will be used to negotiate the final Completion Stage scope and Completion Stage price.

B. After acceptance by Owner of the Report, selection by Owner of a recommended solution and indication of any specific modifications or changes in the scope, extent, character or design requirements of the Project desired by Owner, and upon written authorization from Owner, Design-Builder shall:

1. Conduct necessary field surveys and topographic and utility mapping for the purpose of preparing Preliminary Technical Documents. Comply with the scope of work and procedure for the identification and mapping of existing utilities selected during the Study and Report phase based on ASCE 38, “Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data,” consistent with the provisions of Paragraph 5.05 of the General Conditions.

2. Visit the Site as needed to prepare the Preliminary Technical Documents.

3. Make measured drawings and conduct additional investigation of the Site.

4. Perform any early construction tasks recommended by the Design-Builder and agreed to by the Owner to be necessary the development of the Preliminary Technical Documents.

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5. Prepare or furnish an interim review submittal consisting of the 30% complete Preliminary Technical Documents (including but not limited to design criteria, preliminary drawings, outline specifications, and written descriptions of the Project) that show or describe the character, scope, and intent of, the Construction to be performed or furnished by Design- Builder in the Completion Stage. The Preliminary Technical Documents shall be based on or consistent with the Report unless noted otherwise.

6. Prepare or furnish Preliminary Technical Documents (including but not limited to final design criteria, preliminary drawings, outline specifications, and written descriptions of the Project) that show or describe the character, scope, and intent of, the Construction to be performed or furnished by Design-Builder in the Completion Stage. The Preliminary Technical Documents shall be based on or consistent with the Report unless noted otherwise. The Preliminary Technical Documents will be taken to a point of 70 percent of the final design.

7. Provide in writing to Owner descriptions of any deviations in the Preliminary Technical Documents from the Contract Documents, particularly the Conceptual Documents and the excerpts from the Design-Builder’s proposal, or the Report.

8. Furnish to Owner 4 paper and 1 electronic final copies of the Preliminary Technical Documents according to the Preliminary Stage Schedule, and review them with Owner.

9. Revise the Preliminary Technical Documents in response to Owner’s comments, as appropriate, and furnish 4 paper and 1 electronic copies of the revised Preliminary Technical Documents to the Owner pursuant to the Preliminary Stage Schedule.

10. Furnish 1 paper and 1 electronic copy of an update to the Class 3 cost estimate provided under A1.01.B, if this submission is more than 45 days after the initial Study and Report provided under paragraph A1.01.B.

11. Furnish 1 paper and 1 electronic copy of an update to the preliminary construction schedule, provided under A1.01.B, with lead time estimates, if this submission is more than 45 days after the initial Study and Report provided under paragraph A1.01.B. Design- Builder’s Work under the Preliminary Technical Documents Phase of the Preliminary Stage will be considered complete on the date when Design-Builder has delivered final copies of the Preliminary Technical Documents to Owner.

12. During the Preliminary Technical Documents Phase, the PDB Team will support WSSC Water with two Community Outreach meetings. The PDB Team will prepare mailing lists, graphics, and PowerPoint slides as requested by WSSC, attend the outreach meetings, and provide summary minutes of questions and answers.

A1.03 Construction Planning

A. Planning Tasks: Concurrent with Design-Builder’s development of the Preliminary Technical Documents and Scope of Work, Design-Builder shall begin to plan and organize anticipated construction activities. Tasks shall include (but are not limited to) the following:

1. Identification of potential Construction Subcontractors and Suppliers.

2. Constructability reviews, with ongoing feedback to the design professionals.

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3. Development and refinement of the construction schedule, with the addition of greater scheduling detail as the design and construction planning progresses.

4. Identification of potential for phased or fast-track construction.

5. Identification of the need for or advantage in making long lead-time equipment and materials purchases.

6. Development of Subcontract bid packages that will be let by competitive bidding.

B. Development…