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D.C. SPORTS AND ENTERTAINMENT COMMISSION
REQUEST FOR PROPOSALS
PROJECT LABOR AGREEMENT IMPACT STUDY CONSULTANT
August 10, 2005
Proposal Due Date: August 26, 2005 by 5 p.m.
Contact: Scott Burrell
Attachment B - Form of Contract
On September 29, 2004, the District of Columbia, the D.C. Sports and Entertainment Commission (“Commission”) and Major League Baseball signed a Baseball Stadium Agreement (the “BSA”) pursuant to which the Montreal Expos franchise moved to the District of Columbia. Among other things, the BSA provides that the Commission will construct a new publicly financed stadium located in the Southeast quadrant of Washington, D.C. in time for opening day of the 2008 Major League Baseball season. The BSA includes a penalty provision in the event that construction of the new baseball stadium is not completed by the targeted date.
In seeking to implement strategies to ensure timely completion of the new baseball stadium project (“Project”), a recommendation has been made to utilize a project labor agreement. The goals of a project labor agreement include: maximizing employment and training opportunities for District residents; ensuring labor peace and harmony through open communication among all parties involved; reducing costs and delays in project completion due to labor disputes; ensuring that workers are paid fairly and provided safe and healthy working conditions; and creating a mechanism for managing an assortment of trades by standardizing decisions, leadership and dispute management. A copy of the project labor agreement proposed for the Project (the “PLA”) is attached hereto at Attachment A.
The Commission is issuing this Request for Proposals (“RFP”) with the goal of engaging a consultant (the “Consultant”) to prepare a comprehensive study detailing the impact on economic, labor, cost, and time variables associated with the use of the PLA in connection with the construction of the new baseball stadium. The Commission intends to use the study to evaluate the costs of and benefits that may be derived from using the PLA in connection with the Project.
1. Scope of Work
The Consultant will be required to undertake a comprehensive evaluation of the impact, whether beneficial or adverse, that use of the PLA in connection with the Project will have on economic, labor, cost, time and other pertinent variables. Following such evaluation, the Consultant shall prepare a detailed and thorough study (the “Study”) addressing the impact of the PLA, whether beneficial or adverse, upon the Project. The Study will address all of the issues identified in Section B.1. The Consultant will be required to deliver the Study to the Commission within 60 days of the date of contract award.
In addition to preparing the Study, upon completion of the Study, the Consultant will be required to prepare a comprehensive audio-visual presentation detailing the findings contained in its Study and, as directed by the Commission, the Consultant will make presentations regarding the findings of the Study to organizations and gatherings of officials associated with the Project.
Offerors will be required to quote hourly rates and a Cap Amount for this engagement. The selected Offeror will be compensated based on an hourly basis; however, the selected Offeror must complete the Study and the audio-visual presentation for an amount not to exceed the Cap Amount. The fees and costs of any presentations that the Commission directs the Consultant to make to organizations and gatherings of officials associated with the Project will not be subject to the Cap Amount.
3. Procurement Schedule
The schedule for this procurement shall be as follows:
4. Consultant Selection (Evaluation)
Proposals will be evaluated in accordance with Section D of this RFP. The following evaluation criteria will be used:
SECTION A GOALS & OBJECTIVES
The selected Consultant will be required to prepare the Study which shall meet the requirements specified in Section B.1 and address the impact of the PLA, whether beneficial or adverse, upon the Project and achieve the other requirements specified in the Consultant Agreement, the form of which is attached hereto at Attachment B. In performing its work, the Consultant must be mindful of the Commission’s schedule requirements and the need to utilize Local, Small and Disadvantaged Business Enterprises to the maximum extent possible.
SECTION B SCOPE OF WORK
B.1 Scope of Work
The Consultant shall provide the necessary personnel, services, facilities, supplies, materials, equipment, and other needs to prepare the Study and the other deliverables specified in this RFP.
The Consultant will be required to undertake a comprehensive evaluation of the impact, whether beneficial or adverse, that use of the PLA in connection with the Project will have on economic, labor, cost, time and other pertinent variables. Following such evaluation, the Consultant shall prepare the Study addressing the impact of the PLA, whether beneficial or adverse, upon the Project. The Study shall incorporate supporting data and documentation of research methodologies used by the Consultant. Without limiting or restricting the contents of the Study or its scope, the Study shall include the following:
An analysis of whether the PLA will allow competition and cost effective bidding in connection with the construction of the Project.
The Consultant will be required to deliver the Study to the Commission within 60 days of the date of contract award.
In addition to preparing the Study, upon completion of the Study, the Consultant will be required to prepare a comprehensive audio-visual presentation detailing the findings contained in its Study. At the direction of the Commission, the Consultant will make presentations regarding the Study to organizations and gatherings of officials associated with the Project.
B.2 Key Personnel
In it is proposal, Offerors will be required to identify its key personnel. These personnel must be assigned to the project and cannot be replaced, unless the Consultant obtains the Commission’s written authorization prior to replacing such individuals.
B.3 Licensing, Accreditation and Registration
The Consultant and all of its subconsultants shall comply with all applicable District of Columbia, state, and federal licensing, accreditation, and registration requirements and standards necessary for the performance of the contract.
B.4 Conformance with Laws
It shall be the responsibility of the Consultant to perform under the Agreement in conformance with the Commission’s Procurement Regulations and all statutes, laws, codes, ordinances, regulations, rules, requirements, orders, and policies of governmental bodies, including, without limitation, the U.S. Government and the District of Columbia government; and it is the sole responsibility of the Consultant to determine the Procurement Regulations, statutes, laws, codes, ordinances, regulations, rules, requirements, orders and policies that apply and their effect.
SECTION C ECONOMIC INCLUSION
C.1 Preference for Local and Disadvantaged Business Enterprises or Businesses Operating in an Enterprise Zone
General: Under the provisions of the Equal Opportunity for Local, Small and Disadvantaged Business Enterprises Act of 1998, D.C. Law 12-268, and the Equal Opportunity for Local, Small and Disadvantaged Business Enterprises Amendment Act of 2000, D.C. Law 13-169 (codified at D.C. Code § 1-1153.1 et seq.), preferences shall be given to Offerors that are certified by the Office of Local Business Development as having resident business ownership, being a Local Business Enterprise, being a Disadvantaged Business Enterprise, or as operating in an Enterprise Zone. (A copy of the certification acknowledgment letter must be submitted with the Offeror’s submission and, if applicable, the Technical Proposal.) In accordance with these laws, the following preferences shall be awarded in evaluating an Offeror’s proposal:
Offerors may qualify for more than one of these categories, so that the maximum number of points available under this section is 12 points.
Information: For information regarding the application process, contact the Office of Local Business Development at the following address or telephone number:
If an Offeror is a joint venture consisting of one or more certified entities, the Offeror shall be entitled to the applicable preference points provided for in D.C. Official Code § 2-217.03 in direct proportion to the percentage of the effort to be performed by the certified entities. A copy of the certification acknowledgment letter must be submitted with the Offeror's Proposal.
C.2 LSDBE Participation
The Commission desires significant participation by business enterprises certified by the Office of Local Business Development as: (i) a local business enterprise; (ii) a disadvantaged business enterprise; (iii) having a resident business ownership; or (iv) operating in an enterprise zone. Accordingly, and in addition to the preference points conferred by Section C.1, the Commission requires that Local, Small and Disadvantaged Business Enterprises (LSDBE) participate in this project to the greatest extent possible and desires that such businesses perform at least fifty percent (50%) of the work under this procurement. Of this amount, at least thirty five percent (35%) must be awarded to entities that are certified as either Small or Disadvantaged Business Enterprises by the District of Columbia Local Business Opportunity Commission and twenty percent (20%) to entities that are certified as Disadvantaged Business Enterprises.
Offerors will be required to submit a Local Business Enterprise Utilization Plan with their proposals. The Utilization Plan must demonstrate how this requirement will be met and should identify the specific firms that will be used and their respective roles.
C.3 Residency Hiring Requirements for Consultant and Subcontractors
At least fifty-one percent (51%) of the Consultant’s and every subconsultant’s employees hired after the Consultant enters into a contract with the Commission, or after such subcontractor or subconsultant enters into a contract with the Consultant, to work on the contract, shall be residents of the District of Columbia, as required by D.C. Official Code § 9-805(h).
Upon execution of the Agreement, the Consultant and all of its member firms, if any, and each of its subconsultants shall submit to the Commission a list of current employees that will be assigned to the contract, the date that they were hired and whether or not they live in the District of Columbia.
The Consultant shall comply with subchapter III of Chapter II of Title 1, and subchapter II of Chapter II of Title 1 of the D.C. Official Code, and all successor acts thereto and the rules and regulations promulgated thereunder. The Consultant and all member firms and subconsultants shall be required to execute a First Source Agreement with the District of Columbia Department of Employment Services (DOES) prior to beginning work. The First Source Agreement requires the Consultant and its subcontractors to list all employment vacancies with qualifications for applicant referrals from DOES. If DOES is unable to fill an employment vacancy within a negotiated time frame, the Consultant or its subcontractors may seek other placement venues.
SECTION D EVALUATION AND AWARD CRITERIA
D.1 Evaluation Process
The Commission shall evaluate submissions and any best and final offers in accordance with the provisions of this Section D and the Commission's Procurement Regulations. This Section D describes the process by which the Consultant will be selected.
D.2 Evaluation Panel
Each submission shall be evaluated in accordance with this Section D by an Evaluation Panel. The Evaluation Panel shall prepare a written report summarizing its findings and submit the same to the source selection official. Based on the information submitted by the Offerors in response to this RFP and the report prepared by the Evaluation Panel, the source selection official shall select the Offeror(s) whose submissions are determined by the source selection official to be the most advantageous to the Commission.
D.3 Oral Presentation
The Commission does not intend to interview Offerors; however, it reserves the right to interview some or all of the Offerors if necessary. If the Commission elects to conduct discussions, each responsive Offeror that is in the competitive range shall make an oral presentation to the Evaluation Panel, and participate in a question and answer session. The purpose of the oral presentation and the question and answer session is to permit the Evaluation Panel to fully understand and assess the qualifications of each Offeror and the Offeror’s key personnel. The submission will be re-scored at the conclusion of the oral presentation.
If oral presentations are requested, Offerors will be so advised. The order of presentation will be selected randomly and the Offerors will be informed of their presentation date before the beginning of oral presentations.
D.4 Proposal Evaluation
Each proposal will be scored on a basis a scale of 1 to 100 points. In addition, Offerors will be eligible to receive up to 12 preference points as described in Section C.1 of this RFP for participation by Local, Small or Disadvantaged Business Enterprises. Thus, the maximum number of points possible is 112. The contract will be awarded to the Consultant with the highest evaluated score.
D.4.1 Experience & References (20 points)
The Commission desires to engage a consultant with the experience necessary to realize the objectives of this RFP within the exacting time constraints involved. Offerors will be evaluated in light of their demonstrated experience in: (i) undertaking projects similar to that described herein; (ii) their principal investigator(s) and key personnel; (iii) previous experience in developing similar studies and reports; and (iv) a demonstrated ability to complete tasks within time lines. Offerors will also be evaluated on their past technical performance, cost and schedule management, customer satisfaction and demonstrated understanding of the requirements of the evaluation. This element of the evaluation will be worth up to thirty (30) points.
D.4.2 Key Personnel (20 points)
Offerors are required to provide a list of the key individuals that will be assigned to the preparation of the Study. The proposal should explain the role(s) each individual will serve and why the selected individuals have the requisite experience and ability to perform the required duties. Resumes detailing past experience in similarly situated projects should be attached. This element of the evaluation will be worth up to twenty (20) points.
D.4.3 Plan (20 points)
Offerors are required to submit a technical proposal describing a project plan that details the manner in which the Offeror proposes to complete the Study that achieves the goals of this RFP. The technical proposal should include, at a minimum, detailed timelines and benchmarks for completion dates such that the Study is completed and delivered to the Commission within 60 days of contract award. This element of the evaluation will be worth up to twenty (20) points.
D.4.3 Cost (30 points)
The Commission desires to procure this work in the most cost effective manner possible. The Commission also desires to obtain a commitment from the Consultant as to the maximum cost for this engagement. Offerors will, thus, be required to submit hourly rates and a maximum price (the “Cap Amount”) for the preparation of the Study as well as the audio-visual presentation referenced in Section B.1. This element of the evaluation is worth up to thirty (30) points.
SECTION E PROPOSAL ORGANIZATION AND SUBMISSION
This section outlines specific information necessary for the proper organization and manner in which Offerors' Proposals should be proffered. References are made to other sections in this RFP for further explanation.
E.1 Submission Identification
Submissions shall be proffered in an original and six (6) copies. The Offeror's submission shall be placed in a sealed envelope conspicuously marked: "Submission in Response to PLA Impact Consultant RFP."
E.2 Delivery or Mailing of Submissions
Submissions should be delivered or mailed to:
E.3 Date and Time for Receiving Submissions
Submissions shall be received no later than 5:00 p.m., on August 26, 2005. The Offeror assumes the sole responsibility for timely delivery of its Submission, regardless of the method of delivery.
E.4 Submission Size, Organization and Offeror Qualifications
All submissions shall be submitted on 8-1/2" x 11" bond paper and typewritten. Telephonic, telegraphic, and facsimile submissions shall not be accepted. The Commission is interested in a qualitative approach to presentation material. Brief, clear and concise material is more desirable than quantity. The submission shall be organized as follows:
E.4.1 Bid Form
Each Offeror shall submit a bid form substantially in the form of Attachment C. Material deviations, in the opinion of the Commission, from the bid form shall be sufficient to render the proposal nonresponsive.
E.4.2 Disclosure Statement
Each Offeror shall submit a Disclosure Statement substantially in the form of Attachment D.
E.4.3 Executive Summary
Each Offeror shall provide an executive summary that identifies the Offeror; summarizes the submission; and outlines the structure of the Offeror’s proposal.
E.4.4 Offeror’s Experience
The Commission is interested in selecting a Consultant that has demonstrated experience in preparing similar studies. In addition to the narrative description, the Offeror should include an attachment listing all contracts for similar services held by the Offeror over the last ten years. Such list should include the name of the project or site, identify the owner, provide a general description of the work performed, and provide the time period during which the work was performed. The list should also specifically identify any contracts where a default occurred or where the contract was terminated (whether by default, convenience, or otherwise). Offerors are advised that the Commission reserves the right to contact any of the listed owners.
E.4.5 Selected References
Offerors should provide a list of at least three references where the Offeror provided services similar to those requested herein. This list shall be in addition to that requested under Section E.4.4, and the Commission reserves the right to contact any other customer of the Offeror. The list of references shall include the following information:
E.4.6 Key Individuals
Offerors should provide a description of the key individuals that will be assigned to the preparation of the Study. This list should include the principal(s) and assistant(s) and/or team members. The proposal should explain why the selected individuals have the requisite experience and ability to perform the required duties. Resumes should be attached. The Offeror shall commit that the key personnel identified in its submission will be assigned to the contract. The contract will provide that any substitution of key personnel must have the prior written approval of the Commission.
E.4.7 Proposed Plan
Each Offeror will be required to submit with its proposal: (i) an overall plan that describes how the evaluation will be conducted; (ii) a proposed schedule; and (iii) the budget for preparation of the Study and the audio-visual presentation. These submissions will be evaluated in order to determine (x) how well the Offeror understands the project; and (y) whether the Offeror’s plan is likely to achieve the Commission’s goals.
E.4.8 Proposed Schedule
Each Offeror will be required to submit a proposed schedule. The schedule should provide a clear plan by which the Study can be completed and delivered to the Commission within sixty (60) days of award of the contract.
E.4.9 Local Business Utilization Plan
Each Offeror must submit a proposed Local Business Utilization plan that identifies the specific certified business enterprises that will participate in the contract and their anticipated roles.
E.4.9 Tax Affidavit
Each Offeror must submit a tax affidavit substantially in the form of Attachment E. In order to be eligible for this procurement, Offerors must be in full compliance with their tax obligations to the District of Columbia government.
SECTION F BIDDING PROCEDURES & PROTESTS
F.1 Contact Person
For information regarding this RFP please contact:
F.2 Explanations to Prospective Offerors
Each Offeror should carefully examine this Request for Proposals and any and all amendments, addenda or other revisions, and thoroughly familiarize itself with all requirements prior to proffering a submission. Should an Offeror find discrepancies or ambiguities in, or omissions from, the RFP and amendments, addenda or revisions, or otherwise desire an explanation or interpretation of the RFP any amendments, addenda, or revisions, it must submit a request for interpretation or correction in writing. Any information given to an Offeror concerning the solicitation shall be furnished promptly to all other Offerors as an amendment or addendum to this RFP if in the sole discretion of the Commission that information is necessary in proffering submissions or if the lack of it would be prejudicial to any other prospective Offerors. Oral explanations or instructions given before the award of the contract shall not be binding.
Protests shall be governed by Section 2808 of the Commission’s Procurement Regulations (19 DCMR § 2808). As provided in Section 2808, protests must be filed within seven (7) days after the protester knows or should have known, whichever is earlier, of the facts and circumstances upon which the protest is based. All protests must be made in writing to the Commission's Chief Contracting Officer (“CCO”) and must be filed in duplicate. Protests shall be served on the Commission by obtaining written and dated acknowledgment of receipt from the Commission's CCO. Protests received by the Commission after the indicated period shall not be considered. To expedite handling of protests, the envelope shall be labeled "Protest".
This section is intended to summarize the bid protest procedures and is for the convenience of the Offerors only. To the extent any provision of this section is inconsistent with the Procurement Regulations, the more stringent provisions shall prevail.
F.6 Contract Award
This procurement is being conducted in accordance with the provisions of Section 2804 of the Commission's Procurement Regulations (19 DCMR § 2804).
F.7 Retention of Submissions
All submissions shall be retained by the Commission and therefore shall not be returned to the Offerors.
F.8 Examination of Submissions
Offerors are expected to examine the requirements of all instructions (including all amendments, addenda, attachments and exhibits) in this RFP. Failure to do so shall be at the sole risk of the Offeror and may result in disqualification.
F.9 Late Submissions: Modifications
A. Any submission or best and final offer received at the office designated in this RFP after the exact time specified for receipt shall not be considered.
B. Any modification of a submission, including a modification resulting from the CCO's requests for best and final offers, is subject to the same conditions as in F.9.A stated above.
C. The only acceptable evidence to establish the time of receipt at the Commission installation is the time-date stamp of such installation on the submission wrapper or other documentary evidence of receipt maintained by the installation.
D. Notwithstanding any other provisions of this Request for Proposals to the contrary, a late modification of an otherwise successful submission which makes it terms more favorable to the Commission may be considered at any time it is received and may be accepted.
E. Submissions shall be irrevocable and remain in full force and effect for a period not less than 120 days after receipt of submissions.
F.10 No Compensation for Preparation of Submissions
The Commission shall not bear or assume any financial obligations or liabilities regarding the preparation of any submissions submitted in response to this RFP, or prepared in connection therewith, including, but without limitation, any submissions, statements, reports, data, information, materials or other documents or items.
F.11 Rejection of Submissions
The Commission reserves the right, in its sole discretion:
A. To cancel this solicitation or reject all submissions.
B. To reject submissions that fail to prove the Offeror's responsibility.
C. To reject submissions that contain conditions and/or contingencies that in the Commission’s sole judgment, make the submission indefinite, incomplete, otherwise non-responsive, or otherwise unacceptable for award.
D. To waive minor irregularities in any submission provided such waiver does not result in an unfair advantage to any Offeror.
E. To take any other action within the applicable Procurement Regulations or law.
F. To reject the submission of any Offeror that has submitted a false or misleading statement, affidavit or certification in connection with such submission or this Request for Proposals.
F.12 Limitation of Authority
Only a person with prior written authority from the CCO shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clauses or condition of this RFP. Furthermore, any alteration, amendment, modification, or waiver of any clause or condition of this RFP is not effective or binding unless made in writing and signed by the CCO or its authorized representative.
SECTION G INSURANCE REQUIREMENTS
G.1 Required Insurance
The Consultant will be required to maintain the following types of insurance throughout the life of the contract.
G.1.1 Commercial general public liability insurance (“Liability Insurance”) against liability for bodily injury and death and property damage, such Liability Insurance to be in an amount not less than Two Million Dollars ($2,000,000.00) for liability for bodily injury, death and property damage arising from any one occurrence and Two Million Dollars ($2,000,000.00) from the aggregate of all occurrences within each policy year).
G.1.2 Workers' compensation providing statutory benefits for all persons employed by the Consultant, or its contractors and subcontractors at or in connection with the Work.
G.1.3 Automobile Liability, including Hired and Non-Owned Auto Liability in the amount of at least One Million Dollars ($1,000,000.00) each occurrence for bodily injury and property damage.
G.2 Additional Insureds
Each insurance policy shall be issued in the name of the Consultant and shall name as additional insured parties the Commission and the District of Columbia, and shall not be cancelable or reduced without thirty (30) days prior written notice to the Commission.
G.3 Waiver of Subrogation
All such insurance shall contain a waiver of subrogation against the Commission and the District of Columbia and their respective agents.
G.4 Strength of Insurer
All insurance shall be placed with insurers that are reasonably acceptable to the Commission and with an A.M. Best's rating of not less than A-Class C. All such insurers shall be licensed/approved to do business in the District of Columbia.
THIS CONSULTING AGREEMENT (“Agreement”) for certain consulting services in connection with the construction of the new baseball in Southeast, Washington, D.C., is made as of the ___ day of ___ 2005, by and among, the DISTRICT OF COLUMBIA SPORTS AND ENTERTAINMENT COMMISSION, an independent authority of the District of Columbia, created pursuant to D.C. Official Code §§ 3-1401 et seq. (the “Commission”), and [INSERT CONSULTANT AND STATE OF INCORPORATION/FORMATION] (“Consultant” and, collectively with the Commission, the “Parties”).
WHEREAS, the Commission will design, construct and operate a new baseball stadium in Southeast, Washington, D.C. (the “Project”); and
WHEREAS, in seeking to implement strategies to ensure timely completion of the Project, a recommendation has been made to utilize a project labor agreement in the form attached hereto as Exhibit A (the “PLA”); and
WHEREAS, to evaluate the costs of and benefits that may be derived from using the PLA in connection with the Project, the Commission needs certain consulting services; and
WHEREAS, on August 10, 2005, the Commission issued a Request for Proposals (the “RFP”) for a consultant to prepare a comprehensive study detailing the impact on economic, labor, cost, and time variables associated with the use of the PLA in connection with the Project; and
WHEREAS, the Consultant submitted a proposal in response to the RFP on August 26, 2005; and
WHEREAS, the Commission desires to retain the Consultant under the conditions and terms set forth herein to provide the services specified herein; and
WHEREAS, the Consultant desires to provide such services subject to the conditions and terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants, conditions, representations and warranties contained herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 – PARTIES; STUDY.
Section 1.1 Relationship of the Parties. The Consultant accepts the relationship of trust and confidence established with the Commission by this Agreement and covenants with the Commission to furnish its best skill and judgment in delivering any service hereunder. The Consultant shall reasonably cooperate with the Commission and its employees, agents, and contractors in delivering any service hereunder. In performing the services hereunder, the Consultant shall use its commercial best efforts to perform the services in an expeditious and economical manner consistent with the interests of the Commission.
Section 1.2 Study. The Consultant shall provide the necessary personnel, facilities, equipment, materials, supplies, and other needs to undertake a comprehensive evaluation of the impact, whether beneficial or adverse, that use of the PLA in connection with the Project will have on economic, labor, cost, time and other pertinent variables. Following such evaluation, the Consultant shall prepare a detailed and thorough study (the “Study”) addressing the impact of the PLA, whether beneficial or adverse, upon the Project. The Study shall incorporate supporting data and documentation of research methodologiesused by the Consultant. Without limiting or restricting the contents of the Study or its scope, the Study shall include the following:
Section 1.3 Schedule for Delivery of Study. In light of the short time frame for completion of the work required under this Agreement, upon execution of this Agreement, the Consultant will immediately commit itself to start work on this project so that the Study will be completed and delivered to the Commission within sixty (60) days of the date of this Agreement.
Section 1.4 Audio-Visual Presentation. Upon completion of the Study, the Consultant will be required to prepare a comprehensive audio-visual presentation detailing the findings contained in its Study regarding the impact of the PLA upon the Project. At the direction of the Commission, the Consultant will make presentations to organizations and gatherings of officials associated with the Project.
ARTICLE 2 - COMPENSATION AND CHARGES
Section 2.1 Hourly Rates. Subject to the limitation in Section 2.2, the Consultant shall be reimbursed on an hourly basis for services provided in accordance with this Agreement. The Consultant’s hourly rates applicable to this Agreement are set forth on Exhibit B.
Section 2.2 Cap Amount. Notwithstanding anything to the contrary in this Agreement, the maximum fee the Consultant shall be paid for the preparation of the Study and the audio-visual presentation required by Section 1.4, including any and all fees, costs, expenditures and expenses associated therewith, is ($ )(the “Cap Amount”). If the fees and costs associated with the preparation of the Study and the audio-visual presentation exceed the Cap Amount, the Commission shall have no obligation to pay the Consultant, and the Consultant shall not be entitled to receive, an amount in excess of the Cap Amount. The fees and costs of the Consultant for making presentations to organizations and officials as required by Section 2.1 shall not be subject to the Cap Amount.
Section 2.3 Applications for Payment. On or before the 20th day of each month, the Consultant shall submit to the Commission an application for payment, which application for payment shall cover the entire month prior to the month in which the application for payment is submitted. Each application for payment shall be in a form satisfactory to the Commission, shall include a detailed itemization of all fees and costs and shall be accompanied by such supporting documentation as the Commission may reasonably request. All amounts formally submitted in an application for payment and not disputed by the Commission shall be due and payable within thirty (30) days following submission. If the Consultant and the Commission are unable to agree on the amounts properly due and owing, the Commission shall pay in accordance with its good faith determination and the Consultant may protest and pursue a claim as provided in this Agreement. No payment to the Consultant by the Commission shall constitute acceptance of, or a waiver of any rights or remedies the Commission may have with respect to, any defective or nonconforming work product or service.
ARTICLE 3 - RESOLUTION OF CLAIMS AND DISPUTES
Section 3.1 Mediation. Unless the Parties hereafter otherwise agree, all disputes arising from or in connection with the Agreement or its breach, or relating to the Project, whether framed in contract, tort or otherwise, shall first be referred to non-binding mediation in accordance with the American Arbitration Association’s Commercial Mediation Procedures.
Section 3.2 Arbitration. Unless the Parties hereafter otherwise agree, all disputes arising under or in connection with the Agreement or its breach, or relating to the Project, whether framed in contract, tort or otherwise, and which are not resolved by mediation, shall be resolved by binding arbitration. However, if a third party brings any claim against the Commission, including, without limitation, claims of infringement of patents, copyrights or other intellectual property rights, the Commission may bring an action for defense or indemnification against the Consultant in the court in which such claim is being litigated. The arbitration panel shall be comprised of an individual designated by the Commission, an individual designated by the Consultant, and an individual mutually agreeable to by both the Commission and the Consultant or selected pursuant to the rules of the American Arbitration Association if the Parties cannot agree as to the third arbitrator. The arbitration process shall be conducted in accordance with the American Arbitration Association’s Commercial Mediation Procedures then in effect. In addition to such rules, the following shall also apply:
ARTICLE 4 – REMEDIES
Section 4.1 Commission’s Right to Terminate for Default. In the event the Commission determines that the Consultant has breached any material provision of this Agreement, the Commission shall have the right to terminate this Agreement; provided, however, that prior to exercising such right, the Commission shall first provide the Consultant with written notice of such breach and the Consultant shall have seven (7) days within which to cure such breach (such period, the “Cure Period”). In the event the Consultant cures the breach within the Cure Period or, if the nature of the breach is such that it cannot reasonably be cured within the Cure Period, the Consultant has taken all steps necessary to begin the cure of the breach within the Cure Period, then the Commission shall not terminate the Agreement for default as a result of such breach. In the event the Commission elects to terminate the Agreement for default, the Commission shall pay to the Consultant the following amount no later than thirty (30) days after the effective date of the termination: (i) any amounts due and owing to the Consultant for work already completed under the terms of the Agreement prior to or on the date of the default less (ii) any damages that the Commission is entitled to by virtue of the Consultant’s breach of the Agreement.
Section 4.2 Commission’s Right to Terminate for Convenience. The Commission may, upon written notice to the Consultant, terminate the Agreement in whole or specified part, for its convenience, whether the Consultant is in breach of the Agreement or not. In the event the Commission exercises its right to terminate the Agreement for convenience, the Consultant shall not be entitled to recover for lost profits on the unperformed aspect of the work. The notice of termination shall state the effective date of termination, the extent of the termination, and any specific instructions. In such event, the Consultant shall promptly submit all documents, data, reports, notices, lists, and computer files it has prepared relating to the Project. Within forty-five (45) days of such termination, the Consultant shall submit to the Commission a final application for payment for all work performed to the date of termination.
Section 4.3 Limitation of Damages Against the Commission. The Consultant hereby agrees that should the Commission breach the terms of this Agreement, the Consultant shall only be entitled to recover damages which arise as a direct consequence of the Commission’s breach of this Agreement. In no event shall the Consultant be entitled to recover any indirect, special, incidental, special, speculative, punitive, remote or consequential damages whatsoever from the Commission.
Section 4.4 Remedies not Exclusive. The remedies contained in this Article 4 are in addition to any other remedies that the Commission may have under this Agreement.
Section 4.5 Indemnification. The Consultant shall defend, indemnify and hold harmless the Commission its officers, agents, and employees from and against any and all claims, losses, liabilities, penalties, fines, forfeitures, demands, causes of action, suits, costs and expenses incidental thereto (including cost of defense and attorneys’ fees), resulting from, arising out of, or in any way connected to activities or work performed by the Consultant, Consultant’s officers, employees, agents, servants, subcontractors, or any other person acting for or by permission of the Consultant in performance of this Agreement. The Consultant assumes all risks for direct and indirect damage or injury to the property or persons used or employed in performance of this Agreement. The indemnification obligation under this section shall not be limited by the existence of any insurance policy or by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant or any subcontractor, and shall survive the termination of this Agreement. The Commission agrees to give the Consultant written notice of any claim of indemnity under this section.
ARTICLE 5 SOCIOECONOMIC FACTORS
Section 5.1 Local, Small, Resident Owned, Enterprise Zone and Disadvantaged Business Enterprise Utilization. The Commission desires that local, small, resident owned, enterprise zone and disadvantaged business enterprises certified by the District of Columbia Office of Local Business Development perform at least fifty percent (50%) of the economic value of the services provided under this Agreement. In satisfying the foregoing requirement, at least thirty-five percent (35%) of the economic value of the services shall be awarded to entities certified by the District of Columbia Office of Local Business Development as either small or disadvantaged business enterprises and at least twenty percent (20%) of the economic value of the services shall be awarded to entities certified by the District of Columbia Office of Local Business Development as disadvantaged business enterprises. The Consultant agrees to use commercial best efforts to accomplish this goal and shall submit to the Commission, a plan describing how the Consultant will accomplish this goal. The Consultant will not be permitted to remove team members or subcontractors that are local, small, resident owned, enterprise zone or disadvantaged business enterprises unless it can provide an appropriate replacement or obtains the Commission’s written consent. Work performed by a joint venture certified in the applicable category by the District of Columbia Office of Local Business Development shall count towards the foregoing requirements. If a joint venture is not certified by the District of Columbia Office of Local Business Development, work performed by the joint venture shall count toward these requirements in proportion to the ownership interest of joint venture participants that are so certified.
Section 5.2 Fifty-one Percent New Hires. After the date of this Agreement, at least fifty-one percent (51%) of the Consultant’s employees hired to work on this Agreement shall be residents of the District of Columbia, as required by D.C. Official Code § 9-805(h). The Consultant will include a similar provision regarding new hires in all subcontracts it enters into in connection with this Agreement.
Section 5.3 First Source Employment. The Consultant and each of its subcontractors shall enter into a First Source Employment Agreement with the District of Columbia Department of Employment Services and shall comply with all applicable District resident hiring requirements including D.C. Official Code §§ 2-219.01 et seq.
ARTICLE 6 - INSURANCE REQUIREMENTS
Section 6.1 Required Policies. The Consultant shall be required to maintain the following insurance: (i) workers compensation at the statutory limits; (ii) comprehensive general public liability insurance against liability for bodily injury and death and property damage in an amount not less than Two Million Dollars ($2,000,000.00) for liability for bodily injury, death and property damage arising from any one occurrence and Two Million Dollars ($2,000,000.00) from the aggregate of all occurrences within each policy year; and (iii) automobile liability insurance, including hired and non-owned auto liability, in the amount of at least One Million Dollars ($1,000,000.00) each occurrence for bodily injury and property damage.
Section 6.2 Additional Insured. All policies required hereunder must show the Consultant as the certificate holder and must contain language requiring a sixty (60) day prior notification directly to the Commission’s designated insurance underwriting manager of any changes to or cancellations of coverage. In addition, all policies shall name the District of Columbia Sports and Entertainment Commission as an additional insured (with the exception of worker’s compensation).
Section 6.3 Notice to Commission. The Consultant shall immediately report in writing to the Commission’s designated insurance underwriting manager and to the Commission any incident which might reasonably be expected to result in any claim under any of the insurance policies required under this Agreement or otherwise held by the Consultant. The Consultant agrees to cooperate with the Commission in promptly releasing reasonable information periodically as to the disposition of any claims, including a resume of claims experience relating to the Project.
ARTICLE 7 - KEY PERSONNEL
The Consultant has identified the individuals listed on Exhibit C as key personnel who will be assigned and directly involved and responsible for the delivery of the services required by this Agreement. The Consultant shall not replace any of the key personnel without the Commission’s prior written approval, which shall not be unreasonably withheld. If any of the key personnel become unavailable to perform the services in connection with the Agreement due to death, illness, discharge or resignation, the Consultant shall promptly appoint a replacement acceptable to the Commission. The Commission shall be entitled to complete information on each such replacement, including a current resume of his or her qualifications and experience.
ARTICLE 8 - MISCELLANEOUS
Section 8.1 Removal of Subcontractor. The Commission reserves the right to remove any subcontractor from the Project whose background, performance, and/or general methodologies are deemed by the Commission not to be in the best interests of the Project or the Commission.
Section 8.2 Law Applicable. It shall be Consultant’s responsibility to perform under this Agreement in conformance with all applicable statutes, laws, codes, ordinances, regulations, rules, requirements, orders, and policies of governmental entities. It is the sole responsibility of Consultant to determine the statutes, laws, codes, ordinances, regulations, rules, requirements, orders, and policies that apply to the performance of this Agreement and their effects.
Section 8.3 Assignment. Neither this Agreement, nor any of the rights or obligations hereunder, may be assignable by the Consultant. Any assignment shall be null and void.
Section 8.4 Permits, Licensing, Accreditation, and Registration. The Consultant shall secure and maintain at its expense all necessary permits, licenses, accreditations, and registrations and any other governmental approvals that are required to perform the services.
Section 8.5 Acts of Agents and Employees. The Consultant shall be responsible to the Commission for any and all acts and omissions of the Consultant, its agents, employees, subcontractors and subconsultants.
Section 8.6 Entire Agreement. This Agreement sets forth the full and complete understanding of the Parties relating to the subject matter hereof as to its date, and supersedes any and all negotiation, agreements and representations made or dated prior hereto with respect to the subject matter of this Agreement.
Section 8.7 Drafting Interpretations. In construing this Agreement, none of the Parties hereto shall have any term or provision construed against such party solely by reason of such party having drafted the same.
Section 8.8 No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement, neither this Agreement nor any term or provision of this Agreement, shall be construed as being for the benefit of any party not a signatory hereto.
Section 8.9 Notices. All notices, requests, demands, offers and other written communications given or delivered under or by reason of the provisions of this Agreement shall be in writing, shall be signed by the Party giving such notice, shall be addressed as provided herein and shall be given by registered mail, postage prepaid and return receipt requested, by delivery by hand or by nationally recognized air courier service, to:
If to the Consultant:
[INSERT CONTACT INFORMATION]
If to the Commission:
with a copy to:
Thomas D. Bridenbaugh, Esq.
Any such notice shall become effective when received (or refused) by the addressee, provided that any notice or communication that is received other than during regular business hours of the recipient on a business day shall be deemed to have been given at the opening of business on the next business day. From time to time, each of the Parties may designate a new address for purposes of notice hereunder by notice to such effect to the other Party.
Section 8.10 Captions. The captions contained in this Agreement are for convenience and reference only and in no way define, extend or limit the scope or intent of such document or the intent of any provision contained therein.
Section 8.11 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and in lieu of each such invalid, illegal or unenforceable provision, there shall be added automatically as a part of this Agreement a provision as similar in terms to such invalid, illegal or unenforceable provision as may be possible and be valid, legal and enforceable. Each part of this Agreement is intended to be severable.
Section 8.12 Applicable Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the District of Columbia, exclusive of conflicts of law provisions.
Section 8.13 Counterparts. This Agreement may be signed in any number of counterparts and each counterpart shall represent a fully executed original as if one original was signed by each of the Parties.
Section 8.14 No Waiver. The failure of a Party to enforce, insist upon, or comply with any of the terms, conditions or covenants of this Agreement, or a Party's waiver of the same in any instance or instances shall not be construed as a general waiver or relinquishment of any such terms, conditions or covenants, but the same shall be and remain at all times in full force and effect.
Section 8.15 Representations & Warranties. All disclosures, representations, warranties, and certifications made by the Consultant in its proposal in response to the RFP shall remain binding and in effect throughout the term of this Agreement. The Consultant reaffirms that all such disclosures, representations, warranties, and certifications are true and correct in all material aspects as of the date of this Agreement. If any disclosure, representation, warranty, or certification the Consultant has made in connection with the RFP, including, but not limited to, those representations concerning the Consultant’s qualifications, are materially inaccurate, this shall be a material breach of this Agreement.
Section 8.16 Advertising. The Consultant shall not advertise in any manner other than as approved by the Commission and the Consultant shall have no right to use the trademarks, symbols, logos, trade names or name of the Project directly or indirectly, in connection with any production, promotion, service, or publication without the prior written approval of the Commission. Additionally, any and all products, advertisements or other items or materials distributed by the Consultant that reference, directly or indirectly, the Consultant’s services in connection with the Project shall be subject to pre-distribution approval by the Commission. Nothing contained in this Section shall, however, preclude the Consultant or any affiliate from referring to the Project or this Agreement in any of its materials discussing its general activities and experience.
Section 8.17 False Claims Act. The Consultant shall be governed by all laws and regulations prohibiting false or fraudulent statements and claims made to the government, including the prescriptions set forth in District of Columbia Official Code § 2-308.14.
Section 8.18 Anti-Deficiency Act. The Commission’s obligations and responsibilities under the terms of the Agreement are to be construed in accordance with and determined by the provisions of the Anti-Deficiency Act and the District of Columbia Anti-Deficiency Act.
Section 8.19 Gratuities And Officers Not to Benefit Provisions.
Section 8.20 Ethical Standards For Commission’s Employees And Former Employees. The Commission expects the Consultant to observe the highest ethical standards and to comply with all applicable law, rules, and regulations governing ethical conduct or conflicts of interest. Neither the Consultant, nor any person associated with the Consultant, shall provide (or seek reimbursement for) any gift, gratuity, favor, entertainment, loan or other thing of value to any employee of the District or the Commission not in conformity with applicable law, rules or regulations. The Consultant shall not engage the services of any person or persons in the employment of the Commission or the District for any work required, contemplated or performed under the Agreement. The Consultant may not assign to any former Commission or District employee or agent who has joined the Consultant’s firm any matter on which the former employee, while in the employ of the Commission, had material or substantial involvement in the matter. The Consultant may request a waiver to permit the assignment of such matters to former Commission personnel on a case-by-case basis. The Consultant shall include in every subcontract a provision substantially similar to this section so that such provisions shall be binding upon each subcontractor or vendor.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed under seal by its respective officer or agent thereunto duly authorized as of the date first above written.
DISTRICT OF COLUMBIA SPORTS AND ENTERTAINMENT COMMISSION, an independent authority of the District of Columbia
FORM OF PROPOSED PROJECT LABOR AGREEMENT
CONSULTANT’S HOURLY RATES
D.C. Sports and Entertainment Commission
Re: Request for Proposals
On behalf of [insert name of Bidder] (the “Offeror”), I am pleased to submit this proposal in response to the Request for Proposals for Project Labor Agreement Impact Study Consultant (the “RFP”) issued by the District of Columbia Sports and Entertainment Commission (the “Commission”) to assist the Commission with identifying potential impacts associated with the use of a proposed project labor agreement (the “PLA”) in connection with the construction of the new baseball stadium in Southeast Washington, D.C. The Offeror has reviewed the RFP and the attachments and any addenda thereto (collectively, the “Bid Documents”) and has conducted such due diligence and analysis as the Offeror, in its sole judgment, has deemed necessary in order to submit its proposal in response to the RFP. The Offeror’s proposal and the hourly rates and the Cap Amount as described in the REP are based on the Bid Documents as issued and assume no material alteration of the terms of the Bid Documents. (Collectively, the proposal, the hourly rates and the Cap Amount are referred to as the “Offeror’s Bid”.)
The Offeror’s Bid is as follows:
A. The hourly rates are as follows:
The Offeror acknowledges and understands that the above-quoted hourly fees are firm fixed prices and (other than reimbursable expenses) will be the Offeror’s sole compensation for the work contemplated in the RFP.
B. The Cap Amount for the preparation of the Study and the audio-visual presentation (described in the RFP) is $_____ [insert amount].
C. The proposed schedule for the completion of the Study is: [insert schedule information]
D. The key personnel and the roles that will be assigned to each of them in connection with this project are: [insert key personnel]
The Offeror’s Bid is based on and subject to the following conditions:
1. The Offeror agrees to hold its proposal open for a period of at least sixty (60) days after the date of this bid.
2. Assuming the Offeror is selected by the Commission and subject only to the changes requested in paragraph 5 below, the Offeror agrees to enter into a contract with the Commission on the terms and conditions described in the Bid Documents within ten (10) days of the notice of award.
3. Both the Offeror and the undersigned represent and warrant that the undersigned has the full legal authority to submit this bid form and bind the Offeror to the terms of the Offeror’s Bid. The Offeror further represents and warrants that no further action or approval must be obtained by the Offeror in order to authorize the terms of the Offeror’s Bid.
4. The Offeror and its principal team members hereby represent that they have not: (i) colluded with any other group or person that is submitting a proposal in response to the RFP in order to fix or set prices: (ii) acted in such a manner so as to discourage any other group or person from submitting a proposal in response to the RFP: or (iii) otherwise engaged in conduct that would violate applicable anti-trust law.
5. The Offeror’s proposal is subject to the following requested changes to the Form of Contract included as Attachment B to the RFP:
The Offeror hereby certifies that neither it nor any of its team members have entered into any agreement (written or oral) that would prohibit any subcontractor that is certified by the District of Columbia Office of Local Business Development as a local, small, resident-owned, or disadvantaged business enterprise (collectively, “LSDBE Certified Companies”) from participating in the work if another company is awarded the contract.
7. This bid form and the Offeror’s Bid are being submitted on behalf of [insert full legal name, type of organization, and state of incorporation/formation of the Offeror].
(Name of Offeror)
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