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HomeMy WebLinkAbout2020-065 PO 20200445- Pilot Rock Excavation 8 • prim Purchase Order /MA Fiscal Year 2020 Page: 1 of: 1 B City of Ashland 1-4_0_1111M= 4_i7Jl11M -� • ATTN:Accounts Payable • Purchase • Ashland,Main 97520 Order# 20200445 A T Phone:541/552-2010 ' O Email:payable@ashland.or.us • • ✓ H C/O Public Works Department E PILOT ROCK EXCAVATION I 51 Winburn Way • N 5 S STAGE ROAD p Ashland,OR 97520 MEDFORD, OR 97501 Phone:541/488-5347 R T Fax:541/488-6006 O >_L —��t'.e. el-1 :• c.: 541 664-9288 � - � -�_- ' ---- Scott Fleu _-- 06/05/2020 678 FOB ASHLAND ORI Cit Accounts Pa able — – -- 1�-ti=;��`tit�j-(.,=�FEi��[_� __� --a = � �llt* afsil [ =7(=l[3(�l4�' '�Ccs. Independent Way Construction I Independent Way Construction 1 ,269,902.7500 $1,269,902.75 Public Improvement Contract for - • Independent Way Construction Project No.2013-25 Project Account: E-201325-999 • Project Account: E-201325-999 ***************GL SUMMARY*************** 081200-704200 $1,054,019.28 , 083500-704200 $215,883.47 ' • • WS/By: Date: i — Authoriz d Signature Jt �a�=if__=-T $1 269 902.75 • L Y i • • ,in,o‘ FORM 03 . • r,,, O 7 (/ CITY of ASHLAND i • }REQUIISIITEODale of request: 06/0212020 • Required dale for delivery: • Vendor Nnnle Pilot Rock •. j Address,City,State,Zip • ' 356 Bateman Dr.Central Point,OR 97602 t 1 Contact Name&Telephone Number ' Alison Fowler 541-779.4916 • :Emali address • SOURCING METHOD . • ❑ Exempt from Comnetitivo Bidding, �❑ pmoreoncq • ❑ Reason for exemption: r• •(] invitation to Bld '❑ .Form 013,Written findings and Authorization ❑ AMC 2.60 Date approved by Council:0610212020 • i❑ Written quote or.proposal attached ' 0 Written quote or proposal attached •' • it (Attach copy of council communication) 'jilt council approval required,alach copy of CC) • ❑ Small Procurement L I limiest for Proposal 'Cooperative Procurement Not oxce°dinn$5,000 Date epproved•by Council: ❑ Stale of Oregon ,•• ❑ Direct Award (Attach copy ofcoca communication) ' ` ' Contract 11 • . r 0 Vaal/Walton bid(s)or proposal(s) 0 iteriuest1or Qualifications(Public Works) !❑ Stale of Washington • . Date approved by Council: Contracil? • • Attach copy of council communication) ;❑ Other government agency contract . " )ntermediato Procurement 0 Sole Source Agency GOODS&SERVICES ❑. Applicable Form(115,6,7or0) . Contract'? Greater than$5,000 and less than$100,000 ❑ Millen-quote or proposal attached • :Intergovernmental Anreenrent 0 " 0 (3)Wdttenbids&solicitation attached Cl Form 114,Personal Services$51(to$751( . 'Agency PERSONAL SERVICES ❑ special Procurement El Annual cost to City does not exceed$25,000. 1.1 Greater than$5.000 and less than$75,000 0 Form 119,Request for ApprovalAgreement approved by Legal and approved/signedby . El Less than$35,000,by direct appointment 0 Written quote or proposal attached 'City Administrator.AMC 2.50.070(4) , ❑ (3)Written proposals&solicitation attached Date approved by Council: :❑ Annual cost to City exceeds$26,000,Council ❑ Form 114,Personal Services$5K to$751( Valid until:_ .. __(Dale) 'approval required.(Attach copy of council communication) • Description of SERVICES • ; Total Cost • IndependentWay.Construction 1;269;902,76 Item# Quantity Unit Description of MATERIALS 1 ' ,Unit Price . Total Cost . I . i O Per attached quotelproposal i 'TOTAL COST• 1 • 4 . • Project Number 2 0 , 3 z s. • _ _ • Account Number 0 0 1 2 0 0.7 0 4'2 0 0 $1,054,019.2825 _ Account Number___-_ - Account Account Number 0 0 3 6 0 0.7 0 4,2 0 0 $215)883.4675 2 • 'Expenditure roust be charged to lie appropriate account numbers for the financials fo accurately reflect/he ochre!expenditures 1T Director in collaboration with department to approve.all hardware and software purchases: • - 1 .11"Dilutor Date Suppolt•Yes/No . i{ By signing this requisition form,icodify that ilio Ci1y'spublio contracting requirenro»Ishavo boon satisfied Employee;_ IAA IA()1Q: �,(�J,tX1 Department Head: " ►:'�- _ ' �(� ef!7 rpreaterthan$5,000) Department ManageriSupervlsor: • City Administrator: _• ' (Equal to or oroator than$/25,000) Funds appropriated for current fiscal year: ©I NO ,- `76u4ei (0l�f�i0 � • �n-FInanceD(rdclor-(Equarroapreetellhea$a,000) _Date Comments: . Fermin-RequlsNon • • • ,. • • Council Business Meeting . June 2, 2020 I •Agenda Item Approval of a Construction Contract for the Independent Way ' From Scott Fleury, PE Interim Public Works Director Chance Metcalf Project Manager scott.fleurvOashland.or.us;.(541) 552-2412 ' • Contact chance.metcalf@ashland.or.us; (541) 552-2448 SUMMARY Before Council, acting as the Local Contract Review Board, is approv,a1 of a construction contract with Pilot Rock Excavation for the Independent Way Construction Project for a total contract amount not to exceed $1,269,902.75. . POLICIES,PLANS &GOALS SUPPORTED . City Council Goals(supported by this project): , Goal 1: Develop current and long-term budgetary_resilience--Evaluate revenue streams . Goal 2: Analyze City departments/programs to gain efficiencies,',reduce costs and improve services — Evaluate and communicate street program timelines and funding security Goal 3:Enhance and improve transparency and communication ' _ . •— Develop a robust program to engage with Ashland citizens about City priorities and our i progress on those priorities... Maintain Essential Services Continue to leverage resources to develop and/or enhance Value Services • • . Multi-modal Transportation • All-Age Friendly Community Department Goals: • • Maintain existing infrastructure to meet regulatory requirements and minimize life-cycle costs • Deliver timely life cycle capital improvement projects . • Maintain and improve infrastructure that enhances the economic vitality of the community • Evaluate all city infrastructure regarding planning management and financial resources _ Current Transportation System Plan: - . • Make safety a priority for all modes • Maintain small-town character,support economic prosperity and accommodate future growth. • Create a system-wide balance for serving and facilitating pedestrian,bicycle,rail, air,transit,and vehicular traffic in terms of mobility and access within and through the City of Ashland. PREVIOUS COUNCIL ACTION - The Council has taken numerous actions with respect to the Independent Way roadway project.The first pivotal action was the approval by Council at the December 4,2012 Business Meeting(Minutes)to enter into a letter of intent agreement between the City of Ashland and the property owner to purchase the property necessary to establish a public right of way and associated street connection including sidewalk,park ovv, and •driveway access to existing and proposed adjacent private uses.In addition,the letter of intent specified the buyer(City of Ashland)and seller(Property Owner)would work together to establish a site master plan for the adjacent properties along with a final approved roadway cross section and landscaping plan. Page 1 of 3 , CITY OF • ASHLAND . . • 1 � 1 The Council adopted the 2013 Transportation System Plan(TSP)and'amended the Comprehensive Plan via ordinance at the March 4,2013 Business Meeting(Minutes)that included the Independent Way roadway connection between Tolman Creek Road and Washington Street. At the June 20,2017 Business Meeting,the Council approved the Transportation Commissions to not proceed forward with the Nevada Bridge Extension project as'defined in the 2013 TSP and reallocate previously obtained grant funding for the Nevada Bridge project to the.Independent Way Project(Minutes). • Council approved the Capital Improvements Program on April 2,2019. The CIP includes the construction of Independent Way in the 2019-21 biennium. BACKGROUND AND(ADDITIONAL INFORMATION The Independent Way roadway connection was developed as project R25 in the adopted 2013 TSP.Since approval of the TSP and associated letter of intent,Public Works staff has worked with the owner to secure • the right of way,navigate the site master planning process and produce a formal roadway design,and obtain all necessary environmental permitting for the culvert crossing of Hamilton Creek. In order to move into the construction phase,the City of Ashland released an Invitation to Bid(ITB) document resulting in a public improvement contract with the City of Ashland for supplying all labor, • equipment,and materials necessary to construct the Independent Way Project No'.2013-25. The project consists of the extension of a new street from Washington Street to Tolman Creek Road.Roadway improvements include a culvert crossing over Hamilton Creek,two travel lanes,a sidewalk/multi use path, storm water treatment and associated landscaping. The ITE was posted on the Oregon Procurement Information Network(ORPIN)on April 2,2020,and documents were also on file at the City in the Community Development Building. Bids were received and opened on April 30,2020. Six bids were received from Pilot Rock EXcavation,Knife River Materials,Central Pipeline,West Coast Pipeline,Kogap Enterprises,and JB Steel; all six deemed responsive. Pilot Rock Excavation provided the lowest responsive bid. _ INDEPENDENT WAY PROJECT 2013-25 .° < 'I t t •��PI,j1,�'ytt_:s. .���_ ��r.',�:�} 4u .' . .1 i $1,269,902.75 $1,275,000.00 $1,333,401.03 $1,448,868.00 $1,568,662.00 $1,887,365.96 FISCAL IMPACTS The original project budget established in the TSP(2012 dollars)was$1,055,000 which did not include the purchase of the right of ways necessary for the roadway connection or considered the site master planning requirement within the letter of intent.The right of way was purchased in 2017,for a total cost including title fees,appraisals and negotiations of$376,142.-To date the planning,permitting,surveying and roadway and landscape design fees total$164,601.The bid developed by Pilot Rock Excavation for the project is • $1,269,902.The City received$968,148 in grant funding from the Oregon Department of Transportation for the project replacement of the Bear Creek Bridge project for the Independent Roadway connection.The difference of$301,754 between the grant funding and the construction cost will be covered with existing systems development charge revenues within the street fund. STAFF RECOMMENDATION Staff recommends approval of a construction contract with Pilot Rock Excavation for the Independent Way Construction Project for a contract amount not to exceed$1,269,902.75. ACTIONS,OPTIONS &POTENTIAL MOTIONS • Page2of3 • CITY OF ASHLAND Council, acting as the Local Contract Review Board,has the option to approve this contract or refer action back to staff to rebid the project or request that the project not be constructed, Potential motions include: 1. I move to approve the construction contract with Pilot Rock Excavation for the Independent Way Construction Project for a contract amount not to exceed$1,269,902.75. 2. I move to direct staff to develop a new solicitation and construction bid for this project. 3. I move that Council remove this priority project from the current Capital Improvements Project list. REFERENCES&ATTACHMENTS Attachment 1: Public Improvement Contract between the City and Pilot Rock Excavation. Attachment 2: Letter of Intent Attachment 3: R25 Independent Way TSP Prospectus Sheet • J Page 3 of 3 CITY OF ASHLAND CITY OF ASHLAN ® err PUBLIC IMPROVEMENT CONTRACT FOR INDEPENDENT WAY CONSTRUCTION PROJECT NO. 2013-25 This Public Improvement Contract(hereinafter"Contract") is entered into by and between the CITY OF ASHLAND,an Oregon municipal corporation.(hereinafter i"City"), and Pilot Rock Excavation Inc. (hereinafter"Contractor"). NOW THEREFORE,for good and valuable consideration,the;sufficiency of which is hereby acknowledged,the parties mutually covenant and agree as follows: 1. PROJECT MANAGER: • The City's Project Manager for this Contract is: Chance Metcalf Project Manacer, City of Ashland Public Works Engineering Department. 2. WORK: 2.1. The Work under this Contract is for the INDEPENDENT WAY CONSTRUCTION Project No. 2013-25 as more fully described in the Contract Documents listed in Section 5 of EXHIBIT A, STANDARD TERMS AND CONDITIONS FOR PUBLIC IMPROVEMENT CONTRACTS. Contractor shall complete all Work as specified in the'Contract Documents. The Work is generally described as follows: The installation of approximately 800 linear feet of 8-inch ductile iron waterline and approximately 75 linear feet of 6-inch ductile iron waterline along with related fittings and appurtenances. The Statement of Work, including the delivery schedule for the Work, is contained in the Contract Documents. 2.2. Contractor shall, at its own risk and expense,perform the Work described in the Contract Documents and furnish all permits, labor,tools,machinery,materials,transportation, equipment and services of all kinds required for,necessary for, or reasonable incidental to, performance of the Work,that is,the construction of the INDEPENDENT WAY CONSTRUCTION No. 2013-25. Contractor shall secure all municipal, County, State,or Federal Permits or licenses including payment of permit fees, license fees, and royalties necessary for or incidental to the performance of the Work. The risk of loss for such Work shall not shift to the City until written acceptance of the Work by the City. 3. EFFECTIVE DATE AND DURATION: This Contract is effective as of the date of execution by the City(the "Effective Date"). All Work under this Contract shall,unless otherwise terminated or extended,be completed on or before 6 calendar months following Contractor's receipt of the written Notice to Proceed. 22 • 4. CONSIDERATION 4.1. City agrees to pay Contractor, at the times and in the manner provided in the Contract Documents,the sum of$1,269,902.75 for performing the Work required by this Contract, including allowable expenses.This sum cannot be modified except by Change Order approved in writing by the City.Any progress payments to Contractor shall be made only in accordance with the schedule and the requirements as set forth in the Standard Terms and Conditions. 4.2. City certifies that sufficient funds have been appropriated to make payments required by this Contract during the current fiscal year. Contractor understands and agrees that City's payment of amounts under this Contract attributable to Work performed after the last day of the current fiscal year is contingent upon City appropriations, or other expenditure authority sufficient to allow City in the exercise of its reasonable discretion,to continue to make payments under this Contract. In the event City has insufficient appropriations, limitations or other expenditure ' authority, City may terminate this Contract without penalty or liability to City, effective upon the delivery of written notice to Contractor,with no further liability to Contractor. 5. CONTRACTOR'S REPRESENTATIONS In order to induce City to enter into this Contract, Contractor makes the following representations: 5.1. Contractor has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents. 5.2. Contractor 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. 5.3. Contractor is familiar with and is satisfied as to all laws and regulations that may affect cost, progress,and performance of the Work. 5.4. Contractor has carefully studied all drawings of physical conditions relating to existing surface or subsurface structures at the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings, and reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings. 5.5. Contractor has considered the information known to Contractor itself; information commonly known to 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 identified in the Contract Documents,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 Contractor; and(3) Contractor's safety precautions and programs. 5.6. Based on the information and observations referred to in the preceding paragraph,Contractor agrees that no further examinations, investigations, explorations,tests, studies, or data axe necessary for the performance of the Work at the Contract Price,within the Contract Times, and in accordance with the other terms and conditions of the Contract. 5.7. Contractor is aware of the general nature of work to be performed by City and others at the Site that relates to the Work as indicated in the Contract Documents. 23 5.8. Contractor has given City written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to Contractor. 5.9. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. 6. Governing Law The provisions of this Contract shall be construed in accordance with the laws of the State of Oregon. Any action or suits involving any question arising under this contract must be brought in the appropriate court in Jackson County,Oregon. If the claim must be brought in a federal forum, then it shall be brought and conducted in the United States District Court for the District of Oregon. Contractor,by the signature herein of its authorized representative,hereby consents to the in persopnar jurisdiction of said courts.In no event shall this section be construed as a waiver of the City of any form of defense or immunity. • 24 } CONTRACTOR iiDATA, )CERTIFICATION,AND SIGNATURE Business Name(please print): . - Contact.Name: /`l�r_pC)Li I"C)volt°✓Phone(55ii177C1-6011.4. [ax: 5g1)gib Vi .;55Cle Addresso 1 aJ yrw.vi b . &.M vaJ Pa t ill I ! OR. q 7.7 f�Z. • Do Not Write Federal and State Tax ID Numbers on this Agreenhent: One copy of W-9 is to be submitted with the signed contract to be kept()Ole in the City ofAshland Finance Department. 22 Ashland Business License if 7,32-\ Construction Contractors Board II /5 713 q Citizenship: Nonresident alien Yes 54f .No. . Business Designation`(check one): Individual Sole Proprietorship Partnership )4' Corporation Government/Nonprofit • • The above information must be provided prior to contract approval, Payment information will be reported to the Internal Revenue Service(IRS)under the name and taxpayer I.D.number provided above.(See IRS 1099 for additional instructions regarding taxpayer ID numbers.) Information not matching IRS records • could subject you to 3 I percent backup withholding. • i,the undersigned,understand that the Standard Terms and Conditions For Public Improvement Contracts • (Exhibit A)together with Exhibits B through J together with all other Contract Documents as described in Standard Terms and Conditions Section 5 below,and the separately bound Oregon 2018 Standard • Specifications for Construction,as amended by the City of Ashland's most recent Addenda to the 2018 Standard Specifications are an integral part of this contract and agree to perform the work described in the Contract Documents, including Exhibit A, in accordance with the terms and conditions of this contract. 1 further understand the City is prohibited from entering into a contract when the contractor has neglected or refused to file any return,pay any tax,or properly contest a tax,pursuant to ORS 305.385;1 hereby certify, under penalty of perjury and false swearing,that I/my business am/is not in violation of any Oregon tax • laws;I further certify that the certification and representations in Standard Term and Condition 11 16[CCB Registration Requirements]are true and correct,and further I certify that I am an independent contractor as defined in ORS 670.600. . • l• •i CONTRACTOR; 1• • dirlarA:7-4,,,t Pne?Aidezeti- : • . Signatuiitle L L 4ktv1Prnited ne i 5/i J213 Date • ii 4 I NOTICE TO CONTRACTOR: This contract does nod bind theCity o�'Ashland unless and until ii has been I executed by the Public Contracting Officer or designee. j • I CITY OF ASHLAND SIGNATURE I CITY: , . - ' i f • • Ci y Administrator,City of Ashland •. i 1 .ielf44e3 . Date I ` Ii • 1 • • i I ATTACHMENTS: Certificate of Representation Standard Terms&Conditions • • ; t • Bid Schedule - I Insurance Requirements • • - • i i i• • 4t H • • / �� • I I 4 i • • 1 II 26 • (--- j ! R CERTIFICATE'OF REPRESENTATION Contractor,under penalty of perjury, certifies that: (a) The number shown on this form is its correct taxpayer ID(or is waiting for the number to be issued to it; and (b) Contractor is not subject to backup withholding because (i) itis exempt from backup withholding or (ii) it has not been notified by the internal Revenue Service (IRS) that it is subject to backup • withholding as a result of a failure to report all interest or dividends,or (iii)the IRS has notified it that it is no longer subject to backup withholding. Contractor further represents and warrants to City that (a) it has the power and authority to enter into and perform the work, (b) the Contract,when executed and delivered,shall be a valid and binding obligation of Contractor enforceable in accordance with its terms, and (c) The work under the Contract shall be performed in accordance with the highest professional standards, and (d) Contractor is qualified,professionally competent and duly licensed to perform the work. Contractor also certifies under penalty of pei jury that its business is not in violation of any Oregon tax laws, and it is a corporation authorized to act on behalf of the entity designated above and authorized to do business in Oregon or is an independent contractor as defined in the contract documents, and has checked four or more of the following criteria: /( (1) I carry out the labor or services at a location separate from my residence or is in a specific portion of my residence,set aside as the location of the business. _ (2) Commercial advertising or business cards or a trade association membership are purchased for the business. /r t- (3) Telephone listing is used for the business separate from the personal residence listing. - AF (4) Labor or services are performed only pursuant to written contracts. • 4 (5) Labor or services are performed for two or more different persons within a period of one year. • A (6) I assume financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds,warranties,errors and omission insurance or liability insurance relating to the labor or services to be provided. • 8---47)/11144. 5/1312 •0 DateContractor _ _ 27 ti STANDARD TERMS AND CONDITIONS FOR PUBLIC IMPROVEMENT CONTRACTS (EXHIBIT A) 1. Contractor is Independent Contractor a. Contractor shall perform the work required by this Contract as an independent contractor. b. The Contractor represents and warrants that Contractor(i)is not currently an employee of the federal government or the State of Oregon, and (ii) meets the specific independent contractor standards of ORS 670.600,as certified on the Independent Contractor Certification Statement attached as Exhibit D. c. Contractor will be responsible for any federal or state taxes applicable to any compensation or payment paid to Contractor under this contract. d. Contractor is not eligible for any federal Social Security, unemployment insurance, state Public Employees' Retirement System, or workers' compensation benefits from compensation or payments to Contractor under this contract. 2. Subcontracts and Assignment Contractor shall not subcontract any of the work required by this contract,or assign, sell, dispose of; or transfer any of its interest in this contract,nor delegate duties under the contract, either in whole or in part,without the prior written consent of the City. Such consent if provided shall not relieve the Contractor of any of the obligations under the contract.Any assignee or transferee shall be considered the agent of the contractor and be bound to abide by all provisions of the contract. If the City consents in writing to an assignment, sale, disposal or transfer of the Contractor's rights or delegation of Contractor's duties,the Contractor and its Surety,if any, shall remain liable to the City for complete performance of the Contract as if no such assignment,sale, disposal,transfer or delegation had occurred unless the City otherwise agrees in writing. [OAR\137-049-0200(2)] Use of Subcontractors,material suppliers or equipment suppliers shall in no way release Contractor from any obligations of contract with City. Contractor will provide in all subcontract agreements that the Subcontractor,material supplier and equipment supplier will be bound by the terms and conditions of this Contract to the extent that they relate to the Subcontractor's work, material or equipment. All Subcontracts are assignable to the City at City's option, in the'event this agreement is terminated for default of Contractor. Contractor covenants and agrees to bind any and all subcontractors for performance of work under this Contract in the same manner Contractor is bound to City. Contractor further agrees that if subcontractors are employed in the performance of this contract,the Contractor and its subcontractors are subject to the requirements and sanction of ORS Chapter 656,Workers' Compensation. 3. No Third-Party Beneficiaries City and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives or provides any benefit or right,whether directly,indirectly, or otherwise,to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. 4. Successors in Interest The provisions of this Contract shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and approved assigns, if any. 28 d 5. Contract Documents The Contract Documents, which comprise the entire Contract between the City and Contractor,include all sections or parts of the bid package however denominated, including all documents and plans attached or referenced therein,the Notice to Contractors -Invitation to Bid, Offer,First-Tier Subcontractors Disclosure Form, Surety Bond,Public Improvement Contract,Contract Standard Terms and Conditions and Exhibits thereto,Performance Bond,Payment Bond, Special Provisions,Plans entitled"INDEPENDENT WAY CONSTRUCTION No.2013-25", Construction Drawings, Standard Drawings, and Contract Addendums, all attached hereto, and incorporated herein by this reference, together with the Prevailing Wae BOLseparately bound re erence, Oregon 2018 Standard Specifications for Construction, and City of Ashland Addenda, incorporated herein by this reference. All exhibits, schedules and lists attached to the Contract Documents, or delivered pursuant to the Contract Documents, shall be deemed a part of the Contract Documents and incorporated herein,where applicable, as if fully set forth herein. 6. Contractor's Representations By executing this contract,the Contractor hereby certifies that the representations made by the Contractor in the Contract Documents, including specifically the Offer, are true and correct and are incorporated herein by this reference. Contractor further certifies that Contractor has given the City written notice of conflicts, errors, ambiguities, or discrepancies that it has discovered in the Contract Documents, and the written resolution thereof by the City is acceptable to the Contractor,and the Contract Documents are generally sufficient to indicate and convey understanding of terms and conditions for performing and furnishing the project work. 7. Drug Testing [ORS 279C.505(2)] a. Contractor shall certify to the City that it has a drug-testing program in place for all its employees that includes, at a minimum,the following: i. A written employee drug-testing policy, ii. Required drug testing for all new Subject Employees or alternatively, required testing of all Subject Employees every 12 months on a random selection basis, and iii. Required testing of a Subject Employee when the Contractor has reasonable cause to believe the Subject Employee is under the influence of drugs. b. A drug-testing program that meets the above requirements will be deemed a"Qualifying Employee Drug-testing Program."For the purposes of this section, an employee is a"Subject Employee" only if that employee will be working on the Public Improvement project job site. . c. By executing and returning this contract the Contractor certifies, represents and warrants to the City that a Qualifying Employee Drug-testing Program is in place at the time of execution, will continue in full force and effect for the duration of this contract, and that Contractor will comply with the provisions of subsection (d) below. Further, the City's performance obligation (which includes, without limitation, the City's obligation to make payment) is contingent on Contractors compliance with this representation and warranty. d. Contractor will require each subcontractor providing labor for the project to: i. Demonstrate to the Contractor that it has a Qualifying Employee Drug-testing Program for the subcontractor's Subject Employees, and represent and warrant to the Contractor that the Qualifying Employee Drug-testing Program is in place at the time of subcontract execution and will continue in full force and effect for the duration of the subcontract; or 29 ii. Require that the subcontractor's Subject Employees participate in the Contractor's Qualifying Employee Drug-testing Program for the duration of the subcontract. 8. Notice to Proceed Written Notice to Proceed will be given by the'City after the Contract has been executed and the Performance Bond,Payment Bond, and all required insurance documents approved. Notice To Proceed shall not be unreasonably delayed and shall generally occur within thirty(30)days of the contract date. Reasonable delay may be occasioned by the need to obtain necessary permits or easements or utility relocation. The Contractor shall commence the project work within ten(10) days of the date of the written Notice To Proceed. Contractor is not to commence work under the Contract prior to such written notice. 9. Suspension of the Work The City, and its authorized representatives,may suspend portions or all of the project work due to causes including,but not limited to: a. Failure of the Contractor to correct unsafe conditions; - b. Failure of the Contractor to carry out any provision of the Contract; c. Failure of the Contractor to carry out orders; d. Conditions, in the opinion of the City,which are unsuitable for performing the project work; e. Allowance of time required to investigate differing site conditions; f. Any reason considered to be in the public interest. • The contract time will not be extended,nor will the Contractor be entitled to any additional compensation if the work is suspended pursuant to subsections (a), (b)or(c). If the project work is suspended pursuant to subsection(f),the Contractor is entitled to a reasonable extension of the contract time and reasonable compensation for all verified costs resulting from the suspension plus a reasonable allowance for overhead with respect to such costs. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. The foregoing provision concerning compensation in the event of a suspension of Work of this contract shall not apply if such suspension occurs as a result of the Contractor's violation of any Federal, State, or Local statutes, ordinances, rules or regulations, or as a result of any violation by the Contractor of the terms of this contract, including a determination by the City that the Contractor has not progressed satisfactorily with the Work in accordance with specifications. 10. Early Termination a. The City and the Contractor,by mutual written agreement, may terminate this Contract at any time. b. The City, on 30 days written notice to the Contractor, may terminate this Contract for any reason deemed appropriate in its sole discretion. c. The City may terminate this contract, in whole or in part, at any time for any reason considered by the City, in the exercise of its sole discretion,to be in the public interest. The City will provide the Contractor,and the Contractor's surety,seven(7)days prior written notice of a termination for public convenience. d. Either the City or the Contractor may terminate this Contract in the event of a breach of the Contract by the other. Prior to such termination,however, the party seeking the termination shall give to the other party written notice of the breach and of the party's intent to terminate. If the Party has not entirely cured the breach within 15 days of the notice,then the party giving the notice may terminate the Contract at any time thereafter by giving a written notice of termination. 30 • 11. Payment on Early Termination a. If this contract is terminated under 10(a),(b),or(c),the City shall pay the Contractor for work performed in accordance with the Contract prior to the termination date. b. If this contract is terminated under 10(d), by the Contractor due to a breach by the City,then the City shall pay the Contractor as provided in subsection(a)of this section. c. If this contract is terminated under 10(d),by the City due to a breach by the Contractor,then the City shall pay the Contractor as provided in subsection(a)of this section,subject to set off of excess costs, as provided for in section 12,Remedies. 12. Remedies In the event of termination under 10(d), by the City due to a breach by the Contractor,then the City may complete the work either itself,by agreement with another contractor, or by a combination thereof. In the event the cost of completing the work exceeds the remaining unpaid balance of the total compensation provided under this contract,then the Contractor shall pay to the City the amount of the reasonable excess. After notice of termination under paragraph 10(c),the Contractor and the Contractor's surety shall provide the City with immediate and peaceful possession of the Project site and premises, and materials located on and off the Project site and premises for which the Contractor received progress payment. In no circumstances shall Contractor be entitled to lost profits due to termination. The remedies provided to the City under section 10 through 12 for a breach by the Contractor shall not be exclusive. The City also shall be entitled to any other equitable and legal remedies that are available. In the event of breach of this Contract by the City,then the Contractor's remedy shall be limited to termination of the Contract and receipt of payment as provided in section 11(b). 13. Access to Records Contractor shall maintain, and the City and its authorized representatives shall have access to all books, documents,papers and records of Contractor which relate to this contract for the purpose of making audit, examination, excerpts, and transcripts for a period of three years after final payment. Copies of applicable records shall be made available upon request. Payment for cost of copies is reimbursable by the City. 14. Ownership of Work All work products of the Contractor that result from this contract,including but not limited to background data, documentation and staff work that is preliminaryto final reports, are the property of City. Draft documents and preliminary work submitted to the City for review and comment shall not be considered as owned,used or retained by the City until the final document is submitted. The City shall own all proprietary rights, including but not limited to copyrights, trade secrets, patents and all other intellectual or other property rights in and to such work products. Pre-existing trade secrets of the Contractor shall be noted as such and shall not be considered as a work product of this contract. All such work products shall be considered "works made for hire" under the provisions of the United States Copyright Act and all other equivalent laws. Use of any work product of the Contractor by the City for any purpose other than the use intended by this contract is at the risk of the City. Use of any work product by Contractor is prohibited without the written consent of the City. All documents or other materials submitted to City by Contractor shall become the sole and exclusive property.of City. Such materials are subject to Oregon Public Records laws. 31 15. Compliance with Applicable Law Contractor certifies and shall comply and require all Subcontractors to comply with all federal,state, and local laws and ordinances, including specifically City of Ashland and State of Oregon Public contracting laws and rules applicable to the work under this Contract, including without limitation ORS Chapter 279A, ORS Chapter 279B, ORS Chapter 279C, ORS 279C.500 through 279C.670,and specifically ORS 279A.120(3), ORS 279C.515, ORS 279C.520, ORS 279C.530, ORS 279C.830 and ORS 279C.580 as set forth on Exhibit B,attached hereto and made a part hereof by this reference • In addition,the provisions of ORS 279C.360, ORS 279C.365(4),and ORS 279C.370(Bid Documents and Disclosure); ORS 279A.010(p), 279A.120,279C.375, and 279C.380(4), (Award of Contract and Bond); ORS 279A.110 (Prohibition on Discrimination in Subcontracting); ORS 279C.585 (Substitution first-tier Subcontractor); ORS 279C.650 to 279C.670 (Termination); ORS 279C.520, ORS 279C.540, 279C.545(Hours); ORS 279C.800 to 279C.870(Oregon Prevailing Wage Law), if applicable; ORS 279C.550 to 279C.565 (Retainage); ORS 279C.4570(Payments); and ORS 279C.600 to 279C.625 (Bonds) ORS 279A.125 (Recyclable Products) are all incorporated intothis contract by this reference as though set forth in full. Without limiting the foregoing, Contractor expressly agrees to comply with: (i)any requirements of the DAVIS BACON ACT(40 U.S.C. 3142 and applicable Davis-Bacon Related Acts; (ii)Title VI of the Civil Rights Act of 1964; (iii) Section V of the Rehabilitation Act of 1973; (iv) the Americans with Disabilities Act of 1990, (v)ORS 659A.142, (vi) all regulations and administrative rules established pursuant to those laws; and(vii)all other applicable requirements of federal and state • civil rights and rehabilitation statues,rules and regulations. In addition, Contractor expressly agrees to comply with all federal and state tax laws. A condition or clause required by law to be in this contract shalrbe considered included and incorporated into the Contract and made a part hereof by these references. 16. Registration with Construction Contractor's Board The Contractor,hereby certifies that the Contractor is licensed with the Construction Contractors Board or licensed by the State Landscape Contractor's Board in accordance with ORS 701.035 to 701.055 and, further,that all subcontractors performing work as described in ORS 701.005(2) (i.e., construction work)will be licensed with the Construction Contractors Board or licensed by the State Landscape Contractor's Board in accordance with ORS 701.035 to 701.055 before the subcontractors commence work under the contract. 17. Prevailing Wages/BOLI Fee a. Contractor shall certify in the Contract and it shall be a condition of the bond, as provided in ORS 279C.800 through 279C.870,that in performing this Contract, Contractor will pay and cause to be paid not less than the prevailing rate-of wages as of the date of the Public Notice, per hour, per day, and per week for and to each and every worker who may be employed in and about the performance of the Contract. In accordance with ORS 279C.838, 'each worker in each trade or occupation employed in the performance of the Contract either by.Contractor, subcontractor or other person doing or contracting to do or contracting for the whole or any part of the work on the Contract shall be paid not less than the applicable state or federal prevailing rate of wage, whichever is higher. Copies of the current BOLI prevailing wage schedule and federal wage rate schedule, if applicable, can be found at the following website: https://www.oregon.gov/boli/WHD/PWR/Pages/pwr state.aspx. When both federal and state prevailing wages are required to be included in the contract specifications,the City shall also include in the specifications information showing which prevailing rate of wage is higher for workers in each trade or occupation in each locality, as determined by the Commissioner of the Bureau of Labor and Industries under ORS 279C.815 (2)(c). b. Contractor shall be bound by and shall fully comply with ORS 279C.800 to 279C.870, Oregon's Prevailing Wage Law. CONTRACTOR AGREES TO BE BOUND BY AND WILL COMPLY WITH PROVISIONS OF ORS 279C.840.Pursuant to ORS 279C.830(1),the existing prevailing rate • 32 of wage that may be paid to workers in each trade or occupation required, in the form of a BOLI document, is included in the contract and bid documents and made a part hereof by this reference. For public works for which the contract price is $50,000 or more, all workers shall be paid not less than such specified minimum hourly rate of wage. [ORS 279C.830(1)] c. The City of Ashland shall pay the fee to the Commissioner of the Bureau of Labor and Industries pursuant to the administrative rule of the commissioner and as provided in ORS 279C.825(1). The fee shall be paid on or before the first progress payment or 60 days from the date work first begins on the Contract, or as otherwise provided by administrative rule,whichever is the earliest date. The fee is payable to the Bureau of Labor and Industries Wage and Hour Division Prevailing Wage Unit 800 N.E. Oregon Street#32 Portland Oregon 97232. d. Contractor and some subcontractors shall also file with the Construction Contractors Board a public works bond with a corporate surety authorized to do business in this state in the amount of$30,000 as required by ORS 279C.836 and shall cause all subcontractors to do the same prior to starting work on the project. [ORS 279C.830(2)] The bond must provide that the contractor or subcontractor will pay claims ordered by the Bureau of Labor and Industries to workers performing labor upon public works projects. The bondmust be a continuing obligation, and the surety's liability for the aggregate of claims that may be payable from the bond may not exceed the penal sum of the bond. The bond 'must remain in effect continuously until depleted by claims paid under this section, unless the surety sooner cancels the bond. Contractor shall verify that subcontractors have complied with this requirement prior to permitting the subcontractor to start work on the project. e. If the Contract is for a public work and the Contract price is$50,000 or more, Contractor shall supply and file, and require every Subcontractor to supply and file, with the City and with the Wage and Hour Division,Bureau of Labor and Industries(BOLI), 800 NE Oregon#32,Portland, Oregon 97232 a certified statement in writing that conforms to the requirements of ORS 279C.845. 18. Hours of Labor/Overtime limitation [ORS 279C.520] [ORS 279C.540] [ORS 279C.545] Pursuant to ORS 279C.520,no person may be employed for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or when the public policy absolutely requires it, and in such cases, except in cases of contracts for personal services,the employee shall be paid at least time and a half pay: (a) (1) For all overtime in excess of eight hours in any one day or 40 hours in any one week when the work week is five consecutive days,Monday through Friday; or (2) For all overtime in excess of 10 hours in any one day or 40 hours in any one week when the work week is four consecutive days,Monday through Friday; and (b) For all work performed on Saturday and on any legal holiday specified in ORS 279C.540. (c) Collective bargaining and negotiated labor agreements may provide exceptions to the requirements of this section and from ORS 279C.520 and ORS 279C.540. (d) When labor is employed by the City through another as a contractor, any worker employed by the contractor shall be foreclosed from the right to collect for any overtime provided in ORS 279C.540 unless a claim for payment is filed with the contractor within 90 days from the completion of the contract,providing the contractor has: (1) Caused a circular clearly printed in boldfaced 12-point type font and containing a copy of this section to be posted in a prominent place alongside the door of the timekeeper's office or in a similar place that is readily available and freely visible to workers employed on the • work. (2) Maintained the circular continuously posted from the inception to the completion of the contract on which workers are or have been employed. 33 (e) At or before the commencement of work,the Contractor shall give notice in writing to employees or by posting, of the number of hours and days per week the employees may be required to work. [279C.520(2)(5)] 19. Medical Care and Workers Compensation [ORS 279C.530] (1) Pursuant to ORS 279C.530(1), Contractor shall promptly, as due,make payment to any person, co- partnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury,to the employees of the contractor, of all sums that the contractor agrees to pay for the services and all moneys and sums that the contractor collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services. (2) Pursuant to ORS 279C.530(2),All employers, including Contractor,that employ subject workers who work under this contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers Compensation coverage unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its subcontractors complies with these requirements. 20. Retainage The withholding of retainage by a contractor or subcontractor,on public improvement contracts shall be in accordance with ORS 701.420. [ORS 279C.555] "Retainage"means the difference between the - amount earned by a contractor on a public improvement contract and the amount paid on the contract by the City. [ORS 279C.550]Moneys retained by a contracting agency under ORS 279C.570(7)shall either be: (a)retained in a fund by the City and paid to the contractor in accordance with ORS 279C.570; or(b)At the election of the contractor,paid to the contractor in accordance with the two options below: • The contractor may deposit bonds, securities, or other instruments with the City or in any bank or trust company to be held in lieu of the cash retainage for the benefit of the contracting agency. In such event the City shall reduce the retainage in an amount equal to the value of the bonds, securities or instruments. and pay the amount of the reduction to the contractor in accordance with ORS 279C.570.Interest on the bonds or securities shall accrue to the contractor. {or} • If the contractor elects,the City shall deposit the retainage, as accumulated, in an interest-bearing account in a bank, savings bank,trust company or saving's association for the benefit of the City. Earnings on the account shall accrue to the contractor. If the contracting agency incurs additional costs as a result of the exercise of the options in ORS 279C.560(1)or(5),the City may recover such costs from the contractor by reduction of the final payment.As work on the contract progresses,the contractingagency shall,upon demand, inform the contractor of all accrued costs. Bonds and securities deposited or acquired in lieu of retainage, as permitted above, shall be of a character approved by the City Attorney and City Finance Director, including but not limited to: a. Bills, certificates,notes or bonds of the United States. b. Other obligations of the United States or its agencies. c. Obligations of any corporation wholly owned by the federal government. d. Indebtedness of the Federal National Mortgage Association. e. General obligation Bond of the State of Oregon or a political subdivision thereof. Unless the City finds that accepting a bond or instrument poses an extraordinary risk that is not typically associated with such bond or instrument,the contractor may deposit a surety bond for all or any portion of the amount of funds retained, or to be retained,by the City in a form acceptable to the City. The bond 34 and any proceeds there from shall be made subject to all claims and liens and in the same manner and priority as set forth for retainage under ORS 279C.550 to 279C.570 and 279C.600 to 279C.625.The City shall reduce the retainage in an amount equal to the value of the bond and pay the amount of the reduction to the contractor in accordance with ORS 279C.570. Whenever a City accepts a surety bond from a contractor in lieu of retainage,the contractor shall accept like bonds from any subcontractor or supplier from which the contractor has retainage. The contractor shall then reduce the retainage in an amount equal to the value of the bond and pay the amount of the reduction to the subcontractor or supplier. [279C.560] 21. Progress Payments a. Payment for all work under the Contract will be made promptly by the City at the price or prices bid, and those prices shall include full compensation for all approved incidental work. b. Contractor shall make progress estimates of work'performed in any calendar month and submit to the City for approval, before the fifth of the following month, or as mutually agreed between the Contractor and City. These estimates shall include value of labor performed and materials incorporated in the work since commencing work under the Contract. Such estimates need not be made by strict measurements and may be approximate only and shall be based upon the whole amount of money that will become due according to terms of the Contract when Project has been completed. The City may include in payments eighty five percent(85%)of the cost to Contractor of materials or equipment not yet incorporated in the Work but delivered and suitably stored at the site, or at some other location agreed upon in writing. Such a payment shall be conditioned upon submission by the Contractor of bills of sale or such other documentation satisfactory to the City Attorney to establish the City's title to such materials or equipment or otherwise protect the City's interest including applicable insurance and transportation to the site, and a statement from Contractor explaining why it is necessary to procure said equipment and/or materials. When such payments are made, the Contractor warrants and guarantees that the title to all materials and equipment covered by a progress payment,whether incorporated in the project or not,will pass to the City upon receipt of such payment by the Contractor, free and clear of all liens, claims, security interests or encumbrances. Notwithstanding the above,when the progress estimate indicates that the progress payment would be less than one thousand dollars ($1,000),no progress payment will be made for that estimate period, unless approved by the City. c. If the Contract price is determined,,in whole or in part,on a Lump Sum basis,Contractor shall prepare an itemized cost breakdown relating thereto and have the City approve same before commencing work; progress estimates based on said itemized cost breakdown may be the basis for progress payments. Upon direction by the City, Contractor shall provide for revision of the costs breakdown to reflect the true costs of the work as it progresses. d. If the Contract price is determined wholly on a unit basis, City may use unit prices bid in making progress estimates on the work. In case said unit prices do not, in the opinion of the City, truly represent actual relative costs of different parts of work, a percentage of the Unit Price may be used in making progress estimate adjustments. e. If the City receives written notice of any unsettled claims for damage or other costs due to'Contractor's operations including, without limitation, claims from any City Department or other governmental agency, an amount equal to the claim may be withheld from the progress payments, final payments or retainage until such claim has been resolved to the satisfaction of City. f. Progress payments will be made by City on a monthly basis within thirty(30) days from sign off by the Contractor of the progress payment or fifteen(15) days after the payment is approved by City of work performed,whichever is the earlier date. Failure to pay progress payments within the timeframe set forth above will result in the imposition of interest as required by ORS 279C.570(2)(3). Defective or improper invoices will be addressed as set forth in ORS 279C.570(4)(5)(6). g. Payment will be issued by City for the amount of the approved estimate, less five percent (5%) retainage. Except as provided in paragraph 19 above and the applicable ORS Sections noted herein, such amount of retainage shall be withheld and retained by City until it is included in and paid to 35 Contractor as part of the final payment of the Contract amount. Upon Substantial Completion of the work under the Contract which shall be understood to be not less than ninety-seven and one-half percent(97.5%)of the work,the City may, at its discretion,reduce the retained amount equivalent to not less than one hundred percent(100%) of the contract value or estimated value or estimated cost, whichever is greater, of the work remaining to be done. [279C.570(7)] h. The City may decline to approve an application for payment and may withhold such approval if, in the City's opinion, and in good faith, the work has not,progressed to the point indicated by the Contractor's submittal. The City may also decline to approve an application for payment or may reduce said payment or,because of subsequently discovered evidence or subsequent inspections,City may nullify the whole or any part of any payment previously made to such extent as may be necessary in their opinion to protect the City from loss because of: (1) defective work not remedied, (2)third party claims filed or failure of the Contractor to make payments properly to Subcontractors for labor, materials or equipment, unless Surety consents to such payment, (3) reasonable doubt that the work can be completed for the unpaid balance of the Contract sum,(4)damage to another contractor's work, (5) reasonable indication that the work will not be completed within the Contract time, (6) unsatisfactory prosecution of the work by the Contractor, (7) claims against the Contractor by the City, (8) failure to submit a construction schedule or failure to keep said construction schedule updated, or (9)exceeding work limits. When any or all of the criteria set forth above have been remedied satisfactorily to the City, payment shall be made for amounts withheld because of them. Withholding of progress payments or partial payments under the criteria set forth above shall not entitle the Contractor to interest on such-withheld payments or partial payments, except as provided in ORS 279C.570(9). i. If Contractor fails to complete the Project within the time limit fixed in the Contract or any extension, no further estimate may be accepted, or progress or other payments allowed until the Project is completed, unless approved, otherwise by City. Progress estimates are for the sole purpose of determining progress payments and are not to be relied on for any other purpose. A progress payment is not considered acceptance or approval of any work or materials or waiver of any defects therein. [ORS 279.570(2)]. 22. Final Estimate and Final Payment a. SUBSTANTIAL COMPLETION. Contractor shall notify the City in writing when all or a portion of the work is considered substantially complete. If it appears to the City that the work is not substantially complete, the City shall not make an inspection. The City may make a general list of major work components remaining. If it appears that the work is substantially complete, the City shall, within fifteen(15) days after receiving notice,make an inspection and either accept the work or notify Contractor of work yet to be performed. If accepted, City shall prepare a Certificate of Substantial Completion,Exhibit F. Upon acceptance of the Certificate of Substantial Completion by both parties, the City shall be responsible for operation,and maintenance of that part of the work described in the Certificate of Substantial Completion, subject to the warranty requirements and protection of the work and all other applicable terms of the contract documents. The date of substantial completion of all the work shall stop the accrual of liquidated damages, if applicable. b. FINAL COMPLETION. Contractor shall notify the City in writing when work is 100%complete. If it appears to the City that the work is not 100% complete,the City shall not make a fmal inspection. The City may make a general list of major work components remaining. If it appears that the work is 100% complete, the City shall, within fifteen (15) days after receiving notice, make a final inspection and either accept the work or notify Contractor of work yet to be performed on the Contract. A Certificate of Final Completion shall not be prepared until all provisions of the Contract have been met, including but not limited to,the submission by the Contractor of a signed Certificate of Compliance,Exhibit G and executed"Release of Liens and Claims"(Exhibit H). When the work is 100%complete,the City shall prepare a fmal pay estimate and Certificate of, Final Completion accepting the work as of a certain date. The Contractor shall execute and return the final pay estimate and Certificate of Final Completion within five(5)working days of receipt. 36 • Unless otherwise provided as a Special Provision, when City accepts the Certificate of Final Completion,the date the Contractor signs the Certificate of Final Completion shall be the date the City accepts Ownership of the work and the start date of the warranty period.The contractor may substitute a Warranty Bond in replacement of the Performance and Payment Bonds in accordance with Section 29. The City shall include in the final pay estimate an addition to the contract amount for any contract deduction from the contract amount for any liquidated damages and a deduction from the contract price in a fair and equitable amount for any damages to the City or for any costs incurred or likely to be incurred by the City due to Contractor's failure to meet any contract provision or specification other than timely completion. If the Contractor believes the quantities and amounts'specified in the final pay estimate prepared by the City to be incorrect, Contractor shall submit to the City within five(5)working days of receipt of the City's fmal pay estimate, an itemized statement of any and all claims for additional compensation under the Contract which are based on differences in measurements or errors of computation. Any such claim not sosubmitted and supported by an itemized statement within said period is expressly waived and the City shall not be obligated to pay the same. The Contractor shall commence any suit or action to collect or enforce the claim or claims for any additional compensation arising from errors of computation in the final estimate within a period of one (1) year following the original mailing of the City's final estimate and Certificate of Final Completion to the Contractor's last known address as shown in the records of City.The City's issuance of a revised final estimate pursuant to this subsection does not alter the original fmal estimate date.If said suit, action or proceeding is not commenced in said one(1) year period, the final estimate and Certificate of Final Completion or revised final estimate and Certificate of Final Completion, if revisions are made, shall be conclusive with respect to the amount earned by the Contractor, and the Contractor expressly waives any and all claims for compensation and any and all causes of suit or action for the enforcement thereof that Contractor might have had. Upon return of the fully executed Certificate of Final Completion from the Contractor,the City will submit the Certificate of Final Completion and final estimate to the City for approval. Upon approval and acceptance by the City, Contractor will be paid a total payment equal to the amount due under the Contract including retainage within thirty(30)days in accordance with ORS 279C.570. Failure to pay within 30 days shall implicate the interest on final payment/retainage requirements of ORS 279C.570(8). Monies earned by the Contractor are not due and payable until the procedures set forth in the contract documents for inspection, approval and acceptance of the work; for determination of the work done and the amount due therefore;for the preparation of the final estimate and Certificate of Final Completion and processing the same for payment; for consideration of the Contractor's claim, or claims, if any; and for the preparing of a revised final estimate and Certificate of Final Completion and processing same for payment all have been carried out. As a prerequisite to final payment, if Contractor is not domiciled in or registered to do business in the State of Oregon,the Contractor will provide City with evidence that the requirement of ORS 279A.120(3)has been satisfied. If City declares a default of the Contract, and Surety completes said Contract,all payments made after declaration of default and all retainage held by City shall be paid to Surety and not to Contractor in accordance with the terms of the Contract. Acceptance by Contractor of fmal payment shall release City from any and all claims by Contractor whether known or unknown, arising out of and relating to the work.No payment,however,final or otherwise, shall operate to release Contractor or its Sureties from warranties or other obligations required in the performance of the Contract. 37 • Disputes as to compensation resolved in favor�of the contractor implicate the interest provisions of ORS 279.570(9). 23. Change Orders/Extra Work The Contractor agrees to complete this Contract in accordance with the attached specifications and requirements, including any change orders. A change order submitted by the City must be agreed upon by the Contractor and the City,and in the event of failure to so agree,the City may then proceed with any additional work in any manner the City may choose. A decision by the City to proceed to have work done by another party shall in no way relieve either the Contractor or City of this Contract and neither will such action be cause for collection of damages by either party to the contract, one from the other. Only the City designated Contracting Officer or individual with delegated contracting authority can authorize extra (and/or changed) work and compensation. Such authorization must be in writing.The parties expressly recognize that, except when such order is in writing by an individual with delegated authority, City personnel are not authorized to order extra(and/or) changed work or to waive contract requirements or authorize additional compensation. Failure of the Contractor to secure City authorization for extra work shall constitute a waiver of any and all claims or rights to adjustment in the contract price or contract time due to such unauthorized extra work and thereafter Contractor shall be entitled to no compensation whatsoever for the performance of such work. Contractor further expressly waives any and all right or remedy by way of restitution and quantum meruit for any and all extra work performed by Contractor without express and prior authorization of the City. 24. Contractor/Subcontractor Payment Obligations a. The Contractor is required to include in each subcontract for property or services entered into by the Contractor and a first-tier subcontractor, including a material supplier, for the purpose of performing this contract: i. A payment clause that obligates the Contractor to pay the first-tier subcontractor for satisfactory performance under its subcontract within 10 days out of such amounts as are paid to the Contractor by the City under such contract; [279C.580(3)(a)] and ii. An interest penalty clause that obligates the Contractor,if payment is not made within 30 days after receipt of payment from the City,to pay to the first-tier subcontractor an interest penalty on amounts due in the case of each payment not made in accordance with the payment clause included in the subcontract pursuant to paragraph(a)(i) above. A contractor or first-tier subcontractor shall not be obligated to pay an interest penalty if the only reason that the contractor or first-tier subcontractor did not make payment when payment was due is that the contractor or first-tier subcontractor did not receive payment from the City or contractor when payment was due. The interest penalty shall be: A. For the period beginning on the day after the required payment date and ending on the date on which payment of the amount is due made; and B. Computed at the rate specified in ORS 279C.515(2). [279C.580(3)(b)] b. The Contractor is further required to include in each of its subcontracts, for the purpose of performance of such contract condition, a provision requiring the first-tier subcontractor to include a payment clause and an interest penalty clause conforming to the standards of section a. above in each of its subcontracts and to require each of its subcontractors to include such clauses in their subcontracts with each lower-tier subcontractor or supplier. [279C.580(4)] c. The Contractor shall not request payment of any amount withheld or retained in accordance with ORS 279C.580(5)until such time as the Contractor has determined and certified to the City that the subcontractor is entitled to the payment of such amount. [279C.570(1)]. d. A dispute between the Contractor and a subcontractor relating to the amount or entitlement of a subcontractor to a payment or a late payment interest penalty under a clause included in the subcontract pursuant to subsections(3) and(4) of ORS 279C.580 does not constitute a dispute to 38 J A which the City is a party. The City shall not be included as a party in any administrative or judicial proceeding involving such a dispute. [279C.580(2)] e. The Contractor shall make payment promptly, as due, to all persons supplying to the Contractor. labor or material for the performance of the work provided for in the contract. [ORS 279C.505(1)(a)] The Contractor shall pay all contributions or amounts due the Industrial Accident Fund and the State Unemployment Compensation Fund from the Contractor or Subcontractor incurred in the performance of the contract. [ORS 279C.505(1)(b)]The Contractor shall not permit any claim or lien to be filed or prosecuted against the City and shall be fully responsible for any lien or claim filed against the City on account of any labor or material furnished. [ORS 279C.505(1)(c)] The Contractor shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. [ORS 279C.505(1)(d)] f. Pursuant to ORS 279C.515(1), if Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to the Contractor or a subcontractor by any person in connection with the Contract as such claim becomes due,the proper officer(s)representing the City may pay the claim and charge the amount of the payment against funds due or to become due Contractor under this Contract. g. Pursuant to ORS 279C.515(2),if the Contractor or a first-tier subcontractor fails,neglects or refuses to, make payment to a person furnishing labor or materials in connection with the public improvement contract within 30 days after receipt of payment from the contracting agency or a contractor, the contractor or first-tier subcontractor shall owe the person the amount due plus interest charges commencing at the end of the 10-day period that payment is due under ORS 279C.580(4)and ending upon final payment, unless payment is subject to a good faith dispute as defined in ORS 279C.580. The rate of interestcharged to the contractor or first-tier subcontractor on the amount due shall equal three times the discount rate on 90-day commercial paper in effect • at the Federal Reserve Bank in the Federal Reserve district that includes Oregon on the date that is 30 days after the date when payment was received from the contracting agency or from the contractor, but the rate of interest may not exceed 30 percent. The amount of interest may not be waived. h. Pursuant to ORS 279C.515(3),if the Contractor or a subcontractor fails,neglects or refuses to make payment to a person furnishing labor or materials in connection with the public improvement contract,the person may file a complaint with the Construction Contractors Board,unless payment is subject to a good faith dispute as defined in ORS 279C.580. Pursuant to ORS 279C.515(4),the payment of a claim in the manner authorized in this section does not relieve the contractor or the contractor's surety from obligation with respect to any unpaid claims. j. Living Wage Rates: If the amount of this contract is$18,703 or more, and Contractor is not paying prevailing wage for the work, Contractor must comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in this chapter,to all employees performing work under this contract and to any subcontractor who performs 50% or more of the work under this contract. Contractor must post the attached Living Wage Notice predominantly in areas where it will be seen by all employees. 25. Inspection and Acceptance Inspection and acceptance of all work required under this contract shall be performed by the City. The Contractor shall be advised of the acceptance or of any deficiencies in the deliverable items. 26. Liquidated Damages City and Contractor recognize that time is of the essence of this Contract and that City will suffer substantial financial loss if the project work is not completed within the timeframe specified in Section (1)of the Public Improvement Contract. City and Contractor also recognize the delays, expense, and • difficulties involved in proving in a legal or other dispute resolution preceding the actual loss suffered 39 by City if theprojectwork is not completed on time. Accordingly, instead of requiring any such proof, City and Contractor agree that as liquidated damages for delay(but not as a penalty)the Contractor shall pay the City a dollar amount per day based on calculations set forth in the Oregon Standard Specifications for Construction and the Special Provisions for this project,for each and every day that elapses in excess of the contract time or the final adjusted contract time. This amount is a genuine pre- estimation of the damages expected because of a delay in the completion of this project. Any sums due as liquidated damages shall be deducted from any money due or which may become due to the Contractor under this Contract. Payment of liquidated damages shall not release the Contractor from obligations in respect to the fulfillment of the entire contract,nor shall the payment of such liquidated damages constitute a waiver of the City's right to collect any additional damages which may be sustained by failure of the Contractor to complete the work on time. Permitting the Contractor to continue and finish the project work or any part thereof after the contract time, or adjusted contract time, has expired shall in no way operate as a waiver on the part of the City or any of its rights under this contract. The City may in its discretion grant the-Contractor an extension of time upon a showing made by the Contractor that the work has been unavoidably delayed by conditions beyond the control of the parties. 27. Liability,Indemnity and Hold Harmless Contractor warrants that all its work-will be performed in accordance with generally accepted practices and standards as well as the requirements of applicable federal,state, and local laws, it being understood that acceptance of Contractor's work by City shall not operate as a waiver or release. The Contractor shall hold hatmless,indemnify, and defend City, its officers, agents, and employees from any and all liability, actions, claims, losses, damages or other costs of whatsoever nature, including attorney's fees and witness costs'(at both trial and appeal level,whether or not a trial or appeal ever takes place)that may be asserted by any person or entity arising from, during or in connebtion with the performance of the work, actions or failure to perform actions, and other activities of Contractor or its officers, employees, subcontractors or agents, under this contract, including the professional negligent acts, errors, or omissions of Contractor or its officers, employees, subcontractors,or agents except liability arising out of the sole gross negligence of the City and its employees. The Contractor shall assume all responsibility for the work and shall bear all losses and damages directly or indirectly resulting to the Contractor,to the City, and to their officers, agents, and employees on account of(a)the character or performance of the work, (b)unforeseen difficulties, (c) accidents, or(d)any other cause whatsoever. The Contractor shall assume this responsibility even if(a)fault is the basis of the claim, and(b) any act, omission or conduct of the City connected with the Contract is a condition or contributory cause of the claim, loss, damage or injury. Contractor waives any and all statutory or common law rights of-defense and indemnification by the City. Such indemnification shall also cover claims brought against City under state or federal workers compensation laws. Contractor shall also defend and indemnify City from all loss or damage that may result from Contractor's wrongful or unauthorized use of any patented article or process. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. Any specific duty or liability imposed or assumed by the Contractor as may be otherwise set forth in the Contract documents shall not be construed as a limitation or restriction of the general liability or duty imposed upon the Contractor by this section. In the event any such action or claim is brought against the City,the Contractor shall, if the City so elects and upon tender by the City, defend the same at the Contractor's sole cost and expense,promptly satisfy any judgment adverse to the City or to the City and the Contractor jointly, and\reimburse the City for any loss, cost, damage, or expense, including attorney fees, suffered or incurred by the City. 28. Insurance The Contractor shall provide and maintain during the life of this Contract the insurance coverage as described in Exhibit C. All costs for such insurance shall be borne by the Contractor and shall be included in the contract price. In case of the breach of any provision of this section,the City may elect' to take out and maintain at the expense of the Contractor such insurance as the City may deem proper. 40 The City may deduct the cost of such insurance from any monies that may be due or become due the Contractor under this Contract. Failure to maintain insurance as provided is also cause for immediate termination of the Contract. Contractor shall furnish City certificates of insurance acceptable to City prior to execution by the City and before Contractor or any subcontractor commences work under this Contract. The certificate shall show the name of the insurance carrier, coverage,type, amount(or limits),policy numbers, effective and expiration dates and a description of operations covered. The certificate will include the deductible or retention level and required endorsements. Insuring companies or entities are subject to City's acceptance. If requested, copies of insurance policies shall be provided to the City. Contractor shall be responsible for all deductibles, self-insured retention's, and/or self- insurance. Approval of the insurance shall not relieve or decrease the liability of the Contractor hereunder. , • 29. Performance,Payment and Warranty Bonds/Notice of Bond Claims At the time of execution of the Contract,the Contractor shall furnish: (1)Performance Bond and(2) Payment Bond written by a corporate surety or other financial assurance in an amount equal to the amount of the Contract based upon the estimate of quantities or lump sum as set forth in the Contract and in accordance with ORS 279.380. The bonds shall be continuous in effect and shall remain in full force and effect until compliance with and fulfillment of all terms and provisions of the Contract, including the obligations of Sections 27 and 30,all applicable laws and the prompt payment of all persons supplying labor and/or material for prosecution of the work. The bond(s) or other financial assurance is subject to approval by the City. Contractor shall furnish a separate warranty bond written by a corporate surety or other financial assurance, in an amount equal to 10%of the final amount of the contract. The City may permit the warranty amount to be included in the initial performance and payment bonds. The warranty bond or other financial assurance shall be in effect for a period of one year from the date of Final Completion. The City may require a separate warranty bond or financial assurance for any repairs done pursuant to the warranty obligation. Such separate warranty bond or financial assurance shall be for a period of one year from the date of completion of such repairs. The notice of claim on a bond required by ORS 279C.600 must be sent by registered or certified mail or hand delivered no later than 120 days after the day the person last provided labor or furnished materials or 120 days after the worker listed in the notice of claim by the Commissioner of the Bureau of Labor and Industries last provided labor. The notice may be sent or delivered to the contractor at any place the contractor maintains an office or conducts business or at the residence of the contractor. Notwithstanding the above, if the claim is for a required contribution to a fund of any employee benefit plan,the notice required by ORS 279C.600 must be sent or delivered within 150 days after the employee last provided laborormaterials. The notice of claim must be in writing substantially as set forth in ORS 279C.605(3)-(5). 30. One-Year Warranty In addition to and not in lieu of any other warranties required under the Contract,Contractor shall make all necessary repairs and replacements to remedy, in a manner satisfactory to the City and at no cost to the City, any and all defects, breaks,or failures of the work occurring within one year following the date of completion due to faulty or inadequate materials or workmanship. Repair damage or disturbances to other improvements under,within, or adjacent to the work,whether or not caused by settling,washing, or slipping,when such damage or disturbance is caused, in whole or in part,from activities of the Contractor in performing its duties and obligations under this Contract when such defects or damage occur within the warranty period. The one-year warranty period shall,with relation to such required repair,be extended one year from the date of completion of such repair. 41 If Contractor, after written notice,fails within ten days to proceed to comply with the terms of this section, City may have the defects corrected, and the Contractor and Contractor's surety shall be liable for all expense incurred. In case of an emergency where, in the opinion of the City, delay would cause serious loss or damage,repairs may be made without notice being given to Contractor and Contractor or Surety shall pay the cost of repairs. Failure of the City to act in case of an emergency shall not relieve Contractor or Surety from liability and payment of all such costs. 31. Nondiscrimination in Labor No person shall be subject to discrimination in the receipt of the benefits of any services or activities made possible by or resulting from this Agreement on the grounds of sex,race, color, creed, marital status, age, sexual orientation or national origin. Contractor shall comply with provisions of Owner's Equal Opportunity Policy and comply with ORS Chapter 659 and ORS Chapter 659A relating to unlawful employment practices and discrimination by employers against any employee or applicant for employment because of race,religion, color, sex, national origin,marital status or age if the individual is 18 years of age or older. Particular reference is made to ORS 659A.030,which states that it is unlawful employment practice for any employer, because of the race,religion, color, sex,national origin, marital status or age if the individual is 18 years or older or because of the race, religion, color, sex,national origin or age of any other person with whom the individual associates, or because of a juvenile record that has been expunged pursuant to ORS 419A.260 and ORS 419A.262 of any individual, or to refuse to hire or employ or to bar or discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. Any violation of this provision shall be considered a material violation of the Agreement and shall be grounds for cancellation,termination, or suspension in whole or in part(q). 32. Construction Debris and Yard Waste Contractor shall salvage or recycle construction and demolition debris, if feasible and cost effective. If the contract includes lawn and landscaping maintenance, Contractor shall compost or mulch yard waste material at an approved site, if feasible and cost effective. [ORS 279C.510(1)&(2)] 33. Environmental Regulations Pursuant to ORS 279C.525(1),the following is a list of federal, state and local agencies which have enacted ordinances or regulations dealing with the prevention of environmental pollution and the preservation of natural resources that may affect the performance of the contract. Federal Agencies: Agriculture,Department of Forest Service Soil Conservation Service Commerce Department of National Oceanic and Atmospheric Administration(NOAA) National Marine Fisheries Service(NMFS) Defense,Department of Army Corps of Engineers Energy,Depal latent of Federal Energy Regulatory Commission Environmental Protection Agency Health and Human Services Department of Housing and Urban Development, Solar Energy and Energy Conservation Bank Interior,Department of Bureau of Land Management 42 Bureau of Indian Affairs Bureau of Mines Bureau of Reclamation Geological Survey Minerals Management Service U.S.Fish and Wildlife Service Labor,Department of Mine Safety and Health Administration Occupational Safety and Health Administration Transportation,Department of Coast Guard Federal Highway Administration Water Resources Council State Agencies: Administrative Services,Department of Agriculture,Department of Consumer&Business Services, Department of Oregon Occupational Safety&Health Division Energy,Department of Environmental Quality,Department of Fish and Wildlife, Department of Forestry,Department of Geology and Mineral Industries,Department of Human Resources,Department of Land Conservation and Development Commission Parks and Recreation,Department of Soil and Water Conservation Commission State Engineer State Land Board(Lands,Division of State) Water Resources Department Local Agencies: CITY of ASHLAND City Council(Ashland Municipal Code) County Courts County Commissioners of Jackson County, County Service Districts Sanitary Districts Water Districts Fire Protection Districts Historical Preservation Commissions Planning Commission If the Contractor awarded the project is delayed or must undertake additional work by reason of existing ordinances,rules or regulations of agencies not cited above or due to the enactment of new or the amendment of existing statutes, ordinances,rules or regulations relating to the prevention of environmental pollution and the preservation of natural resources occurring after the submission of the successful bid,the City may: (a) Terminate the contract; (b) Complete the work itself; (c) Use non-City forces already under contract with the City; (d) Require that the underlying property owner be responsible for cleanup; 43 L � (e) Solicit bids for a new contractor to provide the necessary services; or (f) Issue the contractor a change order setting forth the additional'work that must be undertaken. The solicitation documents make specific reference to known conditions at the construction site that may require the successful bidder to comply with the ordinances,rulesor regulations identified above. If Contractor encounters a condition not referred to in the solicitation documents, not caused by the successful bidder and not discoverable by a reasonable pre-bid visual site inspection, and the condition requires compliance with the ordinances,rules or regulations enacted by the governmental entities identified above,the successful bidder shall immediately give notice of the condition to the contracting agency. Except in the,case of an emergency and except as may otherwise be required by any environmental or natural resource ordinance,rule or regulation,the Contractor shall not commence work nor incur any additional job site costs in regard to the condition encountered and described in subsection(3) of this section without written direction from the contracting agency. Upon request by the City,the Contractor shall estimate the emergency or regulatory compliance costs as well as the anticipated delay and costs resulting from the encountered condition. This cost estimate shall be promptly delivered to the contracting agency for resolution. Within a reasonable period of time following delivery of an estimate of this section,the City may: (a) Terminate the contract; • (b) Complete the work itself; (c) Use non-City forces already under contract with the City; ' (d) Require that the underlying property owner be respopsible for cleanup; (e) Solicit bids for a new contractor to provide the necessary services; or (f) Issue the contractor a change order setting forth the additional work that must be undertaken. If the City chooses to terminate the contract under either subsection(a)of this section,the Contractor shall be entitled to all costs and expenses incurred to the date of termination, including overhead and reasonable profits, on the percentage of the work completed. The City shall have access to the contractor's bid documents when making the contracting\agency's determination of the additional compensation due to the contractor. If the contracting agency causes work to be done by another contractor under either subsection(c) or(e) above,the initial contractor may not be held liable for actions or omissions of the other contractor. The change order under either subsection(f) of4his,section shall include the appropriate extension of contract time and compensate the contractor for all additional costs, including overhead and reasonable profits,reasonably incurred as a result of complying with the applicable statutes, ordinances,rules or regulations. The City shall have access to the contractor's bid documents when making the contracting agency's determination of the additional compensation due to the contractor. Notwithstanding the above,the City has allocated all or a portion of the known environmental and natural resource risks to a Contractor by listing such environmental and natural resource risks in the solicitation documents. 34. Waiver The failure of the City to enforce any provision of this contract shall not constitute a waiver by the City of that or any other provision. City shall not be precluded or estopped by any measurement, estimate or certificate made either before or after completion and acceptance of work or payment therefore, from showing the true amount and character of work performed and materials furnished by the Contractor, or from showing that any such measurement, estimate or certificate is untrue or incorrectly made, or that work or materials do not conform in fact to the Contract. City shall not be precluded or estopped, notwithstanding any such measurement, estimate or certificate, or,payment in accordance therewith, from recovering from the Contractor and their Sureties such damages as it may sustain by reason of their failure to comply with terms of the Contract, or from enforcing compliance with the Contract. 44 Neither acceptance by City, or by any representative or agent of the City, of the whole or any part of the work,nor any extension of time,nor any possession taken by City,nor any payment for all or any part of the project, shall operate as a waiver of any portion of the Contract or of any power herein reserved, or any right to damages herein provided. A waiver of any breach of the Contract shall not be held to be a waiver of any other breach. 35. Errors The Contractor shall perform such additional work as may be necessary to correct errors in the work required under this Contract without undue delays and without additional cost. 36. Severability If any term or provision of this contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law,the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular term or provision held invalid. 37. Attorney's Fees If a suit or action is filed to enforce any of the terms of this contract,the prevailing party shall be entitled to recover from the other party,in addition to costs and disbursements provided by statute, any sum which a court,including any appellate court,may adjudge reasonable as attorney's fees. 38. Business License The Contractor shall obtain a City of Ashland business license as required by City ordinance prior to beginning work under this Contract. The Contractor shall provide a business license number in the space provided in this contract. 39. Notices/Bills/Payments All notices,bills, and payments shall be made in writing and may be given by personal delivery or by mail. Notices,bills, and payments sent by mail should be addressed as follows: City of Ashland Chance Metcalf, Project Manager • Public Works/Engineering Department 20 E.Main Street Ashland, OR 97520 and when so addressed, shall be deemed given upon deposit in the United States Mail, postage prepaid. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills, and payments are to be given by giving notice pursuant to this paragraph. 40. Conflict of Interest Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services. The Contractor further covenants that in the performance of this contract no person having any such interest shall be employed. 41. Merger Clause 45 THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT,MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC:INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS,AGREEMENTS, OR REPRESENTATIONS,ORAL OR WRITTEN,NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. BY ITS SIGNATURE, CONTRACTOR ACKNOWLEDGES IT HAS READ AND UNDERSTANDS THIS CONTRACT,AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. ATTACHMENTS: EXHIBITS B-J EXHIBIT B COMPLIANCE WITH APPLICABLE PUBLIC CONTRACT LAW EXHIBIT C INSURANCE REQUIREMENTS EXHIBIT D INDEPENDENT CONTRACTOR CERTIFICATION EXHIBIT E BONDS(BID,PAYMENT AND PERFORMANCE) EXHIBIT F CERTIFICATE OF SUBSTANTIAL'COMPLETION EXHIBIT G CERTIFICATE OF COMPLIANCE EXHIBIT H RELEASE OF LIENS AND CLAIMS EXHIBIT I CERTIFICATE OF FINAL COMPLETION EXHIBIT J INSTRUCTIONS TO BIDDERS l \ 46 EXHIBIT B Compliance with Applicable Law Public Improvement Contract This exhibit contains the requirements for public contracting as set forth in ORS Chapter 279C.360 through and including 279C.800 and is available through the City Engineering Office at 51 Winburn Way,Ashland, Oregon or online at www.leg.state.or.us/ors • 47 • EXHIBIT C Public Improvement Contract Insurance Requirements To: Insurance Agent. Please provide Certificates of Insurance to the Project Manager. During the term of the contract,please provide Certificates of Insurance prior to each renewal. Insurance shall be without prejudice to coverage otherwise existing. During the term of this contract,Contractor shall maintain in force at its own expense all insurance noted below: Workers Compensation insurance in compliance with ORS 656.017. All employers, including Contractor and any subcontractors,that employ subject workers who work under this Contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage,unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its subcontractors complies with these requirements. Commercial General Liability insurance on an occurrence basis,with a combined single limit of not less than■ $2,000,000 or❑ $3,000,000 for each occurrence of bodily injury,personal injury and property damage. It shall include coverage for broad form contractual liability;broad form property damage; personal and advertising injury; owners and contractor protective;premises/operations; and products/completed operations. Coverage shall not exclude excavation, collapse,underground, or explosion hazards. Aggregate limits shall apply on a per-project basis. ■ Required by City ❑ Not required by City Commercial Automobile Liability insurance with a combined single limit, or the equivalent of not less than • $2,000,000 or ❑ $3,000,000 for each accident for Bodily Injury and Property Damage, including • coverage for owned;hired and non-owned vehicles. "Symbol One"coverage shall be designated. ■ Required by City ❑ Not required by City O Builders Risk(Check here if required) insurance during construction to the extent of 100 percent of the value of the work for the benefit of the parties to the Contract as their interest may appear. Coverage shall also include: (1)formwork in place; (2)form lumber on site; (3)temporary structures; (4)equipment; and (5)supplies related to the work while at the site. Notice of Cancellation or Change. There shall be no cancellation,material change,reduction of limits or intent not to renew the insurance coverage(s)without 30 days written notice from the Contractor or its insurer(s)to the City. This notice provision shall be by endorsement physically attached to the certificate of insurance. Additional Insured. For general liability insurance and automobile liability insurance the City, and its agents, officers, and employees will be Additional Insured's, but only with respect to Contractor's services to be provided under this contract. This coverage shall be by endorsement physically attached to the certificate of insurance. The Contractor shall defend,indemnify, and hold harmless,the City and the City's officers, agents, and employees against any liability that may be imposed upon them by reason of the Contractor's or subcontractor's failure to provide workers' compensation and employers liability coverage. Certificates of Insurance. Contractor shall furnish insurance certificates acceptable to City prior to commencing work. The certificate will include the deductible or retention level and required endorsements. Insuring companies or entities are subject to City approval. If requested, copies of insurance policies shall be provided to the City. Contractor shall be responsible for all deductibles, self-insured retention's, and/or self-insurance. 48 L • EXHIBIT D CERTIFICATION STATEMENT FOR CORPORATION OR INDEPENDENT CONTRACTOR • A; YCONTRACTOR TS A CORPORATION • CORPORATION CERTIFICATION: I am authorized to act on behalf of the entity named below and • certify under penalty of perjury that it is a corporation. 1. C. L.G. 1I 1 :. _, Entity - Signa /re Date B.xCONT=RACTOR:IS INDEPENDENT Independent Contractor Standards.'As used in various provisions of ORS Chapters including but not limited to 316,656, 657,and 701,an individual or business entity that performs labor or services for remuneration shall be considered to perform the labor or services as an"independent contractor"if the standards of ORS 670.600 are met. Contractor and Project Manager certifies that the Contractor meets the following standards: 1.Contractor is free from direction and control over the means and manner of providing the labor or services,subject only to the specifications of the desired results. 2.Contractor is responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local ordinances. - 3. Contractor furnishes the tools or equipment necessary for the contracted labor or services. 4. Contractor has the authority to hire and fire employees to perform the labor or services. . • 5. Payment to the Contractor is made upon completion of the performance or is made on the basis of a periodic retainer. 6. Contractor is registered under ORS chapter 701, if the Contractor provides labor or services for which such registration is required. 7.Contractor has filed federal and state income tax returns in the name of the business or a business Schedule C as part of the personal income tax return, for the previous year,for labor or services performed as an independent contractor in the previous year: ' 8.Contractor represent to the public that the labor or services are to be provided by an-independently' established business as four or more of the following circumstances exist. • • • • 49 (Check four or more of the following;) A. The labor or services are primarily carried out at a location that is separate from Contractors residence or is primarily carried out in a specific portion of Contractors residence,which is set aside as the location of the business. ✓ B. Commercial advertising or business cards are purchased for the business, or Contractor has a trade association membership. �7 1� C. Telephone listing is used for the business that is separate from the personal residence listing. D. Labor or services are performed only pursuant to written contracts. E. Labor or services are performed for two or more different persons within a period of one year. F. Contractor assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided. If any action is taken by a person or enforcement agency relating to Contractor's independent contractor status in connection with this contract, 'Contractor shall defend, hold harmless and indemnify the CITY of ASHLAND,its elected and appointed officials, employees,volunteers and agents from any such action,claim,judgment,fine,penalty,or order to pay. Contractor shall pay any additional costs incurred by the City in defending such action or incurred as a result of such action. This indemnification is in addition to any indemnification otherwise in this agreement. g-44/tiAn. .0 � X3120Contractornature ate Proje t Manager Signature Date • 50 1 EXHIBIT E BONDS CITY OF ASHLAND STANDARD PUBLIC IMPROVEMENT CONTRACT BID BOND We, ,a corporation or partnership duly organized under the laws of the State of , and authorized to transact business in the State of Oregon, as"PRINCIPAL,"and, We, ,a corporation or partnership duly organized under the laws of the State of , and authorized to transact business in the State of Oregon,as"SURETY," • hereby jointly and severally bind ourselves, our respective heirs, executors, administrators,successors and assigns firmly by these presents to pay unto the City of Ashland,'Oregon, (OBLIGEE)the sum of ($ ) Dollars. The condition of the obligation of this bond, is that the PRINCIPAL herein has in response to City's Notice to Contractors and Invitation to Bid, submitted its Offer for the INDEPENDENT WAY CONSTRUCTION No. 2013-25,which Offer is incorporated herein and made a part hereof by this reference, and Principal is required to furnish bid security in an amount equal to ten(10%)percent of the total amount of the bid r. pursuant to ORS 279C.365 and the City's public contracting rules and contract documents. NOW THEREFORE, if the Offer, submitted by PRINCIPAL, is accepted, and if the Contract pursuant to the Offer is awarded to the PRINCIPAL,and if the PRINCIPAL executes such contract and furnishes such good and sufficient Performance and Payment Bonds as required by the Bidding and Contract documents within the time specified and fixed by the Documents,then this obligation shall be void; otherwise it shall remain in full force and effect. If the PRINCIPAL shall fail to execute the proposed Contract and to furnish the Performance and Payment-Bonds,the SURETY hereby agrees to pay the OBLIGEE the surety bond sum as liquidated damages within ten(10)days of such failure. IN WITNESS WHEREOF,we have caused this instrument to be executed and sealed by our duly authorized legal representatives this day of ,20_ Surety Principal • Address Address • By: By: Attorney-in-Fact [A certified copy of the Agent's Power of Attorney must be attached hereto.] • IMPORTANT—Surety companies executing BONDS must appear on the Treasury Department's most current list(Circular 570 as amended)and be authorized to transact business in the State.of Oregon. 51 ( 4, PERFORMANCE BOND The undersigned as principal, further referred to in this bond as Contractor, and / , as surety, further referred to in this bond as Surety, are jointly and severally bound unto City of Ashland, as obligee, further referred to in this bond as City, in the sum of Dollars ($ ). Contractor and City have entered into a written contract dated , for the following project: INDEPENDENT WAY CONSTRUCTION No.2013-25. This contract is further referred to in this bond as the Contract and is incorporated into this bond by this reference. The conditions of this bond are: 1. If Contractor faithfully performs the Contract in accordance with the plans,specifications and conditions of the contract within the time prescribed by the Contract, as required by ORS 279C. 380 through 279C.385,then this obligation is null and void; otherwise it shall remain in full force and effect. 2. If Contractor is declared by City to be in default under the Contract,the Surety shall promptly remedy the default, perform all of Contractor's obligations under the contract in accordance with its terms and conditions and pay to City all damages that are due under the Contract. 3. This bond is subject to claims under ORS 279C.380 through 279C.390. 4. This obligation jointly and severally binds Contractor and Surety and their respective heirs, executors, administrators, successors. 5. Surety waives notice of modification of the Contract or extension of the Contract time. 6. Nonpayment of the bond premium shall not invalidate this bond. 7. The bond number and the name, address, and telephone number of the agent authorized to receive notices concerning this bond are as follows. Bond Number: Bond Agent: Address: Telephone: SIGNED this , day of 20_ 52 PERFORMANCE BOND Page 2 WITNESS: CONTRACTOR: By: (Corporate Seal) Title: Legal Address: Attest: Corporate Secretary WITNESS: SURETY: By: (Corporate Seal) Title: Legal Address: Attest: Corporate Secretary 53 r � PAYMENT BOND The undersigned , as principal, further referred to in this bond as Contractor, and as surety, further referred to in this bond as Surety, are jointly and severally bound unto City of Ashland, as obligee, further referred to in this bond as City, in the sum of Dollars ($ ). Contractor and City have entered into a written contract dated , for the following project: INDEPENDENT WAY CONSTRUCTION No.2013-25.This contract is further referred to in this bond as the Contract and is incorporated into this bond by this reference. The conditions of this bond are: 1. If Contractor faithfully performs the Contract within the time prescribed by the Contract, and. promptly makes payment to all claimants, as defined in ORS 279C.600 through 279C.620,then this obligation is null and void; otherwise it shall remain in full force and effect. 2. If Contractor is declared by City to be in default under the Contract, the Surety shall promptly remedy the default,perform all of Contractor's obligations under the contract in accordance with its terms and conditions and pay to City all damages that are due under the Contract. 3. This bond is subject to claims under ORS 279C.600 through 279C.620. 4. This obligation jointly and severally binds Contractor and Surety and their respective heirs, executors, administrators, successors. 5. Surety waives notice of modification of the Contract or extension of the Contract time. 6. Nonpayment of the bond premium shall not invalidate this bond. 7. The bond number and the name,address,and telephone number of the agent authorized to receive notices concerning this bond are as follows: Bond Number: Bond Agent: Address: Telephone: SIGNED this day of 20_ 54 4.,„.....--.."" � ® DATE(MMIDD/YYYY) A 9 o CERTIFICATE OF LIABILITY INSURANCE 05/14/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS'NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS -CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(les)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER NAME: Kris ti R Dolmage Hart Insurance Agency PHONE FAX PO Box 1240 (A/C.No.Extl: (541) 779-4232 (A/C,No):(541) 772-3963 E-MAIL ADDRESS: kdolmage®hartinsurance.com Grants Pass OR 97528 INSURER(S)AFFORDING COVERAGE NAIC# INSURER A:American Hallmark Insurance Co 43494 INSURED (541) 779-4916 INSURER B: Pilot Rock Excavation Inc. I INSURER C: 5 S Stage Road INSURERD: Medford OR 97501 INSURERS: INSURER F: COVERAGES CERTIFICATE NUMBER:Cert ID 12941 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY.THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INADDL SURANCE NSD VJVD POLICY NUMBER (UBR MM/DD ) (EFF MMIDDIYYYPY) LIMITS A X COMMERCIAL GENERAL LIABILITYEACH OCCURRENCE $ 1,000,000 CLAIMS-MADE X OCCUR Y 44CL494969 07/20/2019 07/20/2020 pREMSESE(Eaoccu ence) $ 100,000 MED EXP(Any one person) $ 5,000 PERSONAL&ADV INJURY $ 1,000,000 GEN'LAGGREGATE LIMIT APPLIESPER: GENERAL AGGREGATE _$ 2,000,000 POLICY X T PRO- LOC • PRODUCTS-COMP/OPAGG $ 2,000,000 JEC OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 (Ea accident) A X ANY AUTO '1 44CL494969 07/20/2019 07/20/2020 BODILYINJURY(Perperson) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY(Per accident) $ _ — HIRED NON-OWNED • PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY (Per accident) $ A X UMBRELLA LIAB X OCCUR 44C17495062 07/20/2019 07/20/2020 EACH OCCURRENCE $ 1,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 1,000,000 DED X RETENTION$ 10,000 $ \ WORKERS COMPENSATION H- AND EMPLOYERS'LIABILITY PERE YIN STATUTE ER ANYPROPRIETOR/PARTNERlE_XECUTIVE N/A E.L.F?,CHACCIDENT $ OFFICER/MEMBEREXCLUDED7 (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below , E.L.DISEASE-POUCY LIMIT $ $ $ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached,if more space Is required) Additional insured form MP9767 10/10 attached. City of Ashland and its employees, officers and agents are included as additional insured as respects to general liability and auto liability. Form BA2060 attached and applies RE: Independent Way Construction Project 2013-25 ' CERTIFICATE HOLDER . CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Ashland I 20 E. Main Street AUTHORIZED EPRESEENNTATIVE Ashland OR 97520 �✓ �/ Z , I ©1988-2015 ACORD CORPORATION. All rights reserved. . ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD Page 1 of 1 A General Liability Additional Coverages The following Additional Coverages are added to the COMMERCIAL GENERAL LIABILITY COVERAGE FORM. A. Blanket Additional Insured Coverage 1.SECTION II—WHO IS AN INSURED of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is amended to include as an insured any person or organization(referred to as Additional Insured)whom you are required to add as an Additional Insured on this policy under: a.A written contract or agreement;and b.Where a certificate of insurance showing that person or organization as an additional insured has been issued c.When the written contract or agreement and certificate of insurance are currently in effect or becoming in effect during the term of the policy and executed prior to the"bodily injury,""property damage,"or"personal and advertising injury." 2.The insurance provided to the Additional Insured is limited as follows: a.The Additional Insured is only an additional insured for: (1)"Bodily injury,""property damage,"or"personal and advertising injury"caused in whole or in part by negligent acts or omissions of the Named Insured or anyone directly or indirectly employed by the Named Insured or for whose acts a Named Insured may be liable. (2) Liability arising out of your ongoing operations for the Additional Insured by or for you.A person's or organization's status as an insured under this coverage ends when your operations for that insured are completed. b.The Limits of Insurance applicable to the Additional Insured are those specified in the written contract or agreement but not more than the Limits of Insurance specified in the Declarations for this policy.The Limits of Insurance applicable to the Additional Insured are inclusive of and not in addition to the Limits of Insurance shown in the Declarations for the Named Insured. 3. In addition to the other exclusions applicable to Section I, Coverages A., B.and C.of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM,the insurance provided to the Additional Insured does not apply to: a."Property damage"to: (1) Property owned, used,occupied by, loaned or rented to the Additional Insured; (2)Property in the care,custody or control of the Additional Insured or over which the Additional Insured are for any purpose exercising physical control;or (3)"Your work"performed for the Additional Insured. b."Bodily injury,""property damage,"or"personal and advertising injury"arising out of an architect's,engineer's or surveyor's rendering or failure to render any professional services for you,for the Additional Insured or for others, including,but not limited to: (1)The preparing, approving or failure to prepare or approve maps,drawings, opinions, reports,surveys,change orders, designs or specifications;or (2)Supervisory, inspection or engineering services. c."Bodily injury"or"property damage"occurring after: (1)All work,including materials,parts or equipment furnished in connection with such work, on the project(other than service, maintenance or repairs)to be performed by or on behalf of the additional insured at the site of the covered operations has been completed; or (2)That portion of"your work"out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. 4.SECTION IV—COMMERCIAL GENERAL LIABILITY CONDITIONS, Paragraph 4.Other Insurance,is amended to add the following subparagraph: d.Additional Insured's Other Insurance As Excess Insurance To the extent required by an"insured contract,"this insurance is primary on behalf of the Additional Insured;and any other insurance maintained by the Additional Insured is excess and not contributory with this insurance. If the "insured contract"does not require this provision,then Paragraph a.above will apply. B.Mobile Equipment Broadened Coverage V.12.f.(1)of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM is replaced by the following: (1)Equipment designed primarily for: (a)Snow Removal; (b) Road maintenance,but not construction or resurfacing;or (c)Street cleaning. Except the above provisions do not apply to self-propelled vehicles of less than 1,000 pounds gross vehicle weight which are not intended for use on a highway. C.Aggregate Limit Per Project MP 97 67 10 10 Includes copyrighted material of Insurance Services Office,Inc.and Page 1 of 2 American Association of Insurance Services,Inc.,with their permission The General Aggregate Limit under SECTION III—LIMITS OF INSURANCE of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM applies separately to each of your projectsaway from premises owned by or rented to you. Page 22 of 25 Includes copyrighted material of Insurance Services Office, Inc. and MP 97 67 10 10 American Association of Insurance Services, Inc.,with their permission D.Blanket Waiver C4 Transfer Of Rights Of Recovery Agairist Others To Us ; The Transfer Of Rights Of Recovery Against Others To Us Condition (SECTION IV—COMMERCIAL GENERAL LIABILITY CONDITIONS)is amended by the addition of the following: We waive any right of recovery we may have against any person or organization to whom you by written contract or written agreement have waived your own right or recovery for loss caused by that person or organization because of payments we make for injury or damage arising out of your ongoing operations or"your work"done under a written contract or written agreement with that person or organization and included in the"products-completed operations hazard." This provision does not apply unless the written contract or written agreement has been executed prior to the "occurrence"or offense giving rise to the"bodily injury"or"property damage."' E.Voluntary Property Damage Coverage 1.We will,at your request, pay but not defend any claim for"property damage"to the property of others otherwise excluded under A.2.j.(4),(5)and(6)of the COMMERCIAL GENERAL LIABILITY COVERAGE FORM provided that: a.Such"property damage"takes place while such property is in your care,custody or control, or is property of others over which you,for any purpose,are exercising or have exercised physical control;and b. Such"property damage"takes place away from any premises you own,rent or lease;and c. Such"property damage"takes place within the"coverage territory"and during the policy term;and d. Such"property damage"takes place only during your operations that are known to us,are scheduled on the policy and for which a premium has been charged. 2.The insurance under this additional coverage does not apply to"property damage"to property: a. Held by you for servicing,repair,storage or sale at premises owned by, rented or leased to you; b.While being transported by or caused by the ownership,maintenance,operation,use,"loading or unloading"of any "auto,"watercraft or aircraft;or c.Owned or occupied by or rented to you. 3. Deductible This additional coverage will apply only to that amount of any loss in each"occurrence"that exceeds $500.The terms of the policy with respect to your duties in the event of"occurrence,"claim or"suit"and the Company's right to investigate,negotiate and settle any claim or"suit"apply irrespective of the application of the deductible amount of$500. We may pay any part or all of the deductible amount of$500 to effect settlement of any claim or"suit."Upon notification of the action taken,you must promptly reimburse us for such part of the deductible amount as has been paid by us. 4. Limits of Liability The Limit of Liability for this additional coverage shall not exceed$2,500 for each"occurrence"and is the limit of the Company's liability for all damages on account of each claim or"suit"covered herein.The annual aggregate Unlit of Liability is$2,500 and is,subject to the above provisions respecting each claim,the total limit of the Company's liability for all damages. 5.Settlement In the event of loss covered by this additional coverage,you shall,if requested by us, replace the property or furnish the labor and materials necessary for repairs thereto at actual cost to you,excluding prospective profit or overhead charges of any nature.Any property so paid for or replaced shall,at our option,become the property of the Company. Payment hereunder shall not constitute an admission of liability of you or,except as stated herein,of the Company. it MP 97 67 10 10 Includes copyrighted material of Insurance Services Office,Inc.and Page 2 of 2 American Association of Insurance Services,Inc.,with their permission ' r • COMMERCIAL AUTO BA 20 60 04 11 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTO COVERAGE FORM ENHANCEMENT ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. A. SECTION II—LIABILITY COVERAGE,A.1.Who Is An Insured, is amended by the addition of the following: • 1. Broadened Named Insured Any organization you newly acquire or form, other than a partnership,joint venture or limited liability com- pany, and over which you maintain ownership or majority interest, and there is no other similar insurance available to that organization. However, insurance provided by this provision: a. Is afforded only until the 180th day after you acquire or form the organization or the end of the policy period,whichever is earlier; b. Does not apply to "bodily injury" or "property damage" resulting from an "accident" that occurred be- fore you acquired or formed the organization; c. Does not apply to an insured under any other automobile liability policy, or would be an insured under such a policy but for the exhaustion of such policy's limits of insurance or the termination of such poli- cy; and d. No newly acquired or formed organization is an insured with respect to any current or past partner- ship, joint venture or limited liability company that is not shown as a Named Insured in the Declara- tions. 2. Blanket Additional Insured Any person or organization with respect to the operation, maintenance, or use, of a covered "auto" that you are required to include as additional insured on the Coverage Form in a written agreement or written "insured contract" that is signed and executed by you before the "bodily injury" or"property damage" oc- curs. However, such person or organization is an insured: a. Only for"bodily injury" or"property damage" caused by an "accident"which takes place after you exe- cuted the written agreement or written"insured contract"; b. Is in effect during the policy period; and c. Only for damages to which this insurance applies and only to the extent that person or organization qualifies as an"insured" under the Who Is An Insured provision contained in Section II. B. Employee Hired Autos 1. SECTION II—LIABILITY COVERAGE,A.1.Who Is An Insured, is amended by the addition of the follow- ing: An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that"employee's" name,with your permission, while performing duties related to the conduct of your business. 2. Under SECTION IV— BUSINESS AUTO CONDITIONS, B.5., Other Insurance, Paragraph b. is deleted and replaced with the following: b. For Hired Auto Physical Damage Coverage,the following are deemed to be covered"autos"you own: (1) Any covered"auto"you lease, hire, rent or borrow; and BA 20 60 04 11 Includes copyrighted material of Insurance Services Office, Inc., Page 1 of 4 with its permission _ • (2) Any covered "auto" hired or rented by your"employee" under a contract in that individual "employ- ee's" name,with your permission,while performing duties related to the conduct of your business. However, any"auto"that is leased, hired, rented or borrowed with a driver,is not a covered"auto". If Employee Hired Autos Coverage Form CA 20 54 is attached to this policy, then the Employee Hired Autos coverage described above does not apply. C. Supplementary Payments Under SECTION H — LIABILITY COVERAGE, A.2., Coverage Extensions, a. Supplementary Payments, Paragraphs a.(2)and a.(4)are deleted and replaced by the following: (2) Up to $2,500 for cost of bail bonds (including bonds for related traffic law violations) required because of an"accident"we cover. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a day because of time off from work. D. Transportation Expenses Under SECTION III — PHYSICAL DAMAGE COVERAGE, A.4., Coverage Extensions, a. Transportation Expenses is deleted in its entirety and replaced with the following: a. Transportation Expenses We will pay up to $50 per day to a maximum of$1,500 for temporary transportation expense incurred by you because of the total theft of a covered"auto" of the private passenger type. We will pay only for those covered"autos"for which you carry either Comprehensive or;Specified Causes Of Loss Coverage, includ- ing Theft Coverage. We will pay for temporary transportation expenses incurred during the period begin- ning 48 hours after the theft and ending, regardless of the policy's expiration, when the covered "auto" is ' returned to use or we pay for its"loss". E. Loss Of Use Expenses Under SECTION III — PHYSICAL DAMAGE COVERAGE, A. Coverage, 4. Coverage Extensions, the last paragraph under b.Loss Of Use Expenses is replaced as follows: However,the most we will pay for any expenses for loss of use is$65 per day,to a maximum of$1,000. F. Theft Expense Under SECTION III - PHYSICAL DAMAGE COVERAGE, A.4., ,Coverage Extensions, the following is add- ed: If Comprehensive Coverage is purchased on a covered "auto", and that covered "auto" is stolen, we will pay the expense,of returning that stolen auto to you. The limit for this coverage extension is$1,000. G. Rental Agency Expense Under SECTION III — PHYSICAL DAMAGE COVERAGE, A.4., Coverage Extensions, the following is add- ed: We will pay the following expenses that you or any or your"employees"are legally obligated to pay because of a written contract or written agreement entered into for use of a rental vehicle in the conduct of your business: Maximum amount we will pay for any one written contract or written agreement: 1. $2,500 for loss of income incurred by the rental agency during the period of time that vehicle is out of use due as a result of actual damage to, or"loss" of, that vehicle, including income lost due to absence of that vehicle for use as a replacement; 2. $2,500 for decrease in trade-in value.of the rental vehicle because of actual damage to that vehicle arising out of a covered"loss"; and 3. $2,500 for administrative expenses incurred by the rental agency, as stated in the written.contract or writ- ten agreement. 4. Maximum total amount payable under Paragraphs 1.,2.and 3.combined is$7,500. H. Hired Auto Physical Damage Under SECTION III — PHYSICAL DAMAGE COVERAGE, A.4., Coverage Extensions, the following is added: Page 2 of 4 Includes copyrighted material of Insurance Services Office, Inc., BA 20 60 0411 with its permission - If hired "autos" are covered "autos" for Liability Coverage, and if Comprehensive, Specified Causes Of Loss, or Collision Coverage as provided under this Coverage Part, then coverage is extended to"autos" you hire without a driver, subject to the following: 1. The most we will pay for"loss"to any hired "auto" is $35,000 or the actual cash value or cost to repair or replace, whichever is less, minus a deductible. 2. The deductible will be equal to the largest deductible applicable to any owned"auto"for that coverage. Coverage provided by this extension applies only to"autos"you hire of the private passenger type or light truck (gross vehicles weight 10,000 pounds or less)type vehicles. If a limit for Hired Auto — Physical Damage is shown in the Declarations, then that limit replaces, and is not added to, the$35,000 limit indicated above. I. Airbag Coverage Under SECTION III — PHYSICAL DAMAGE COVERAGE, B. Exclusions, Paragraph 3.a. is'replaced as fol- lows: a. Wear and tear, freezing, mechanical or electrical breakdown. However, mechanical or electrical break- down does not apply to the unintended discharge of an airbag. Any loss covered under this provision is excess over any other collectible insurance or warranty. J. Glass Breakage Under SECTION III—PHYSICAL DAMAGE COVERAGE, D., Deductible,the following is added: However, if Comprehensive or Specified Causes Of Loss Coverage is purchased on a covered "auto", any deductible shown in the Declarations as applying to the covered "auto" will not apply to glass breakage if the damaged glass is repaired in a manner acceptable to us rather than replaced. K. Rental Reimbursement SECTION III—PHYSICAL DAMAGE COVERAGE is amended by the addition of the following: If Physical Damage Coverage for which a premium is shown, is designated in the Declarations for a covered "auto"we will provide Rental Reimbursement Coverage. 1. We will pay for rental reimbursement expenses incurred by you for the rental of an "auto" because of "loss"to a covered "auto". Payment applies in addition to the otherwise applicable amount of each cover- age you have on a covered"auto". No deductible applies to this coverage. 2. We will pay only for those expenses incurred during the policy period beginning 24 hours after the "loss" and ending, regardless of the policy's expiration,with the lesser of the following number of days: a. 30 days; or b. The number of days reasonably required to repair or replace"the covered"auto". If"loss' is caused by theft, this number of days is added to the number of days it takes to locate the-covered"auto" and re- turn it to you. 3. Our payment is limited to the lesser of the following amounts: a. $40 any one day; or b. Necessary and actual expenses incurred. 4. This coverage does not apply while there are spare or reserve"autos"available to you for your operations. 5. If "loss" results from the total theft of a'covered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided for under Paragraph A.4.Coverage Extensions, a.Transportation Expenses. If Rental Reimbursement Coverage Form CA 99 23 is attached to this policy, then the Rental Reimbursement Coverage described above does not apply. L. Blanket Waiver of Subrogation Under SECTION IV — BUSINESS AUTO CONDITIONS, A. Loss Conditions, Paragraph 5., Transfer Of Rights Of Recovery Against Others To Us, is amended by the addition of the following: We will, however, waive any right of recovery we may have against any person or organization because of payments we make for "bodily injury" or "property damage" arising out of the operation of a covered "auto" when you have assumed liability for such"bodily injury"or"property damage" under an "insured contract". BA 20 60 0411 Includes copyrighted material of Insurance Services Office, Inc., Page 3 of 4 with its permission This provision does not apply unless the permit has been issuedltor the written contract or written agreement has been executed, prior to the"bodily injury" or"property damage". M. Unintentional Failure To Disclose Hazards - Under SECTION IV BUSINESS AUTO CONDITIONS,B. General Conditions, Paragraph 2.Concealment, Misrepresentation Or Fraud, is amended by the addition of the following: The unintentional omission of, or unintentional error in, any information given by you shall not prejudice your rights under this insurance. However, this provision does not affect our right to collect additional premium or exercise our right of cancellation or non-renewal. N. Duties In The Event Of Accident,Claim,Suit Or Loss Under SECTION IV—BUSINESS AUTO CONDITIONS, A.2. Duties In The Event Of Accident, Claim, Suit Or Loss, Paragraph 2.a., is deleted and replaced with the following: a. In the event of"accident", claim, "suit" or"loss", you must give us or our authorized representative prompt notice of the"accident"or"loss" after it becomes known to: (1) You, if you are an individual; (2) A partner or member, if you are a partnership or joint venture; (3) A member or manager, if you are a limited liability company; or (4) An executive officer or insurance manager if you are an organization other than a partnership, joint venture or limited liability company. Notice should include the following: (1) How,when and where the"accident"or"loss"occurred; (2) The"insured's" name and address; and (3) To the extent possible,the names and addresses of any injured persons and witnesses. Your"employees" may know of an "accident", claim, "suit" or"loss". This will not mean that you have such knowledge of an"accident", claim, "suit"or"loss". \ I / Page 4 of 4 ' Includes copyrighted material of Insurance Services Office, Inc., BA 20 60 0411 with its permission I L BBB! 900796 • A Human Resource Management Company May 14, 2020 PILOT ROCK EXCAVATION INC 5 SOUTH STAGE RD MEDFORD, OR 97501-2482 Re: Barrett Business Services, Inc. ("BBSI") Letter of Self-Insurance for Workers' Compensation Coverage As the named addressee of this Letter, your company's required workers' compensation coverage is provided through BBSI's state approved Self-Insured Workers' Compensation Plan by way of your co-employment contract with BBSI. Additional information is as follows: • State: Oregon Workers'Compensation Limits: Employer Liability Limits: Self Insurance Certification #: 1068 Statutory $5,000,000.00 Each Accident $5.000,000.00 Disease Coverage Limit by Client $5,000,000.00 Disease; Each Employee Other Comments(place an"X" if applicable): • X Named "Letter Holder": City of Ashland 20 E Main St Ashland, OR 97520 X Other: RE:All Operations. Contract effective 5/1/12, renewed through 4/30/21. Subject to 30 days' notice of cancellation. Additionally, BBSI's self-insured program is further supported by an excess workers' compensation insurance policy with ACE American Insurance Co.. Copy of certificate is available upon request. For additional information, please contact your local BBSI office at: MEDFORD (541) 772-5469 3512 Excel Drive Suite 107 Very truly yours, Medford, OR 97504 Gary Kramer President and Chief Executive Officer doc:Losi 2 -_ • ' STATE OF OREGON • vek.fi• STATUTORY PUBLIC WORKS BOND Surety bond#: 0607983 CCB#(if applicable): • We, Pilot Rock Excavation,Inc. ,as principal,and International Fidelity Insurance Company. ,1 a corporation qualified and authorized to do business in the State of Oregon,as surety,are held and firmly bound unto the State of Oregon for the use and benefit of the Oregon Bureau of Labor and Industries(BOLI)in thesum of thirty thousand dollars($30,000)lawful money of the United States of America to be paid as provided in ORS chapter 279C,as amended by Oregon Laws 2005,jchripter 360,for which payment well and truly to be made,we bind ourselves,our heirs,personal representatives,successors and assigns,jointly and severally,firmly by this agreement. • WHEREAS,the above-named principal wishes to be eligible to work on public works project(s) subject to the provisions of ORS chapter 279C,as amended by Oregon Laws 2005,chapter 360,and is,therefore,required to obtain and file a statutory public works • bond in the penal sum of$30,000 with good and sufficient surety as required pursuant to the provisions of section 2,chapter 360, Oregon Laws 2005,conditioned as herein set forth. NOW,THEREFORE, the conditions of the foregoing obligations are that if said principal with regard to all work done by the principal as a contractor or subcontractor on public works project(s),shall pay all claims ordered by BOLI against the principal to workers performing labor upon public works projects for unpaid wages determined to be due,in accordance with ORS chapter 279C, • as amended by Oregon Laws 2005,chapter 360,and OAR Chapter 839,then this obligation shall be void;otherwise to remain in full force and effect. - I ' This bond is for the exclusive purpose of payment of wage claims ordered by BOLL to workers performing labor upon public works projects in accordance with ORS chapter 279C,as amended by Oregon Laws 2005,chapter 360. This bond shall be one continuing obligation,and the liability of the surety for the aggregate of any and all claims which may arise hereunder shall in no event exceed the amount of the penalty of this bond. This bond shall become effective on the date it is executed by both the principal and surety and shall continuously remain in effect until depleted by claims paid under ORS chapter 279C,as amended by Oregon Laws 2005,chapter 360,unless the surety sooner cancels.the bond. This bond may be cancelled by the surety and the surety be relieved of further liability for work performed on contracts entered after cancellation by giving 30 days'written notice to the principal,the Construction Contractors Board,and BOU. Cancellation shall not limit the responsibility of the surety for the payment of claims ordered by BOLE relating to work performed during the work period of a contract entered into before cancellation of this bond: IN WITNESS WHEREOF,the principal and surety execute This agreement. The surety fully authorizes its representatives in the State of Oregon to enter into this obligation. SIGNED,SEALED AND DATED this. 18th day of March 2015 Surety by: Principal,by: International Fidelity Insurance Company (Seat) Pilot Rock Excavation,Inc. Cont an Vame ) Name Sign re Signature Attorney In Fact _ • . Tide(e.g.Attorney-in=Fact) Title ! • a 5 South Stage Road .• l ';-e' ','moi; - PAYMENT BOND The undersigned Pilot Rock Excavation, Inc. , as principal, further referred to in this bond as Contractor.andlntemational Fidelity Insurance Company as surety, further referred to in this bond as Surety. are jointly and severally bound unto City of Ashland.as obligee, further referred to in this bond as City, in the sum of One Million Two Hundred Sixty Nine Thousand Nine Hundred Two 75/00 Dollars($ 1,269,902.75 Contractor and City have entered into a written contract dated June 2,2020 , for the following project: INDEPENDENT WAY CONSTRUCTION No.2013-25.This contract is further referred to in this bond as the Contract and is incorporated into this bond by this reference. The conditions of this bond are: 1. If Contractor faithfully performs the Contract within the time prescribed by the Contract, and promptly makes payment to all claimants,as defined in ORS 279C.600 through 279C.620.then this obligation is null and void;otherwise it shall remain in full force and effect. 2. if Contractor is declared by City to be in default under the Contract. the Surety shall promptly remedy the default,perform all of Contractor's obligations under the contract in accordance with its terms and conditions and pay to City all damages that are due under the Contract. 3. This bond is subject to claims under ORS 279C.600 through 279C.620. 4. This obligation jointly and severally binds Contractor and Surety and their respective heirs, executors,administrators.successors. 5. Surety waives notice of modification of the Contract or extension of the Contract time. 6. Nonpayment of the bond premium shall not invalidate this bond. 7. The bond number and the name,address,and telephone number of the agent authorized to receive notices concerning this bond are as follows: Bond Number: 750390 Bond Agent: Bond Experts II,Ltd. Address: 4850 SW Scholls Ferry Road Suite 204 Portland,OR 97225 • Telephone: 503-292-2582 SIGNED this 3rd • day of June 2020 • 54 PAYMENT BOND Page 2 WITNESS: CONTRACTOR: Pilot Rock Excavation,Inc. By: . (Corporate Seal) Title: 0051 Legal Address: 356 Bateman Drive Central Point,OR 97502 Attest: d-41 /Corporate Secretary • WITNESS: Inte -tional Fidelity Insurance Company SURETY: (Corporate Seal) Bjo- / r� Title: A . ey-in-Fact / Legal Address: One Newark Center 20th Floor Newark,NJ 07102 Attest: Attached Corporate Secretary 55 • d POWER OF ATTORNEY Bond# 750390 INTERNATIONAL FIDELITY INSURANCE COMPANY ALLEGHENY CASUALTY COMPANY One Newark Center,20'h Floor,Newark,New Jersey 07102-5207 PHONE:(973)624-7200 KNOW ALL MEN BY THESE PRESENTS: That INTERNATIONAL FIDELITY INSURANCE COMPANY,a corporation organized and existing under the laws of the State of New Jersey,and ALLEGHENY CASUALTY COMPANY a corporation organized and existing under the laws of the State of New Jersey,having their principal office in the City of Newark,New Jersey,do hereby constitute and appoint KRISTINE T. YATES Portland, OR their true and lawful attomey(s)-in-fact to execute,seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of Indemnity and other writings obligatory in the nature thereof,which are or may be allowed,required or permitted by law,statute,rule,regulation,contract or otherwise,and the execution of such instrument(s)in pursuance of these presents,shall be as binding upon the said INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY, as fully and amply,toall intents and purposes,as if the same had been duly executed and acknowledged by their regularly elected officers at their principal offices. This Power of Attomey,is executed, and may be revoked, pursuant to and by authority of the By-Laws of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY and is granted under and by authority of the following resolution adopted by the Board of Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 20th day of July,2010 and by the Board of Directors of ALLEGHENY CASUALTY COMPANY at a meeting duly held on the 10th day of July,2015 RESOLVED,that(1)the Chief Executive Officer,President, Executive Vice President,Vice President, or Secretary of the Corporation shall have the power to appoint,and to revoke the appointments of,Attorneys-in-Fact or agents with power and authority as defined or limited in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings, recognizances, contracts of indemnity and other written obligations in the naturelthereof or related thereto; and(2)any such Officers of the Corporation may appoint and revoke the appointments of joint-control custodians, agents for acceptance of process,and Attorneys-in-fact with authority to execute waivers and consents on behalf of the Corporation;and(3)the signature of any such Officer of the Corporation and the,Corporation's seal may be affixed by facsimile to any power of attorney or certification given for the execution of any bond,undertaking,recognizance,contract of indemnity or other written obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter, being hereby adopted by the Corporation as the original signature of such officer and the original seal of the Corporation,to be valid and binding upon the Corporation with the same force and effect as though manually affixed." IN WITNESS WHEREOF,INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY have each executed and attested these presents - - on this 31st day of December,2017 SIT001:— STATE OF NEW JERSEY �y GpSUALTyc County of Essex -o d 1936 134,4, George R.James *� 47 r k Executive Vice President (International Fidelity Insurance Company)and Vice President (Allegheny Casualty Company) 4`611/JERS On this 31st day of December,2017 ,before me came the individual who executed the preceding instrument,to me personally known,and, being by me duly sworn,said he is the therein described and authorized officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and of ALLEGHENY CASUALTY COMPANY;that the seals affixed to said instrument are the Corporate Seals of said Companies;that the said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies. .�``aun,,,rn',, IN TESTIMONY WHEREOF,I have hereunto set my hand affixed my Official Seal,at the City of Newark, pP�NY ARG'' New Jersey the day and year first above written. , �,ssrotic c. V NOTARY roA • 1111“-4111 /14,1 /212--d PUBLIC y. 4.: Cathy Cruz a Notary Public of New Jersey S.15. •'° •�r6•z��' 5`c My Commission Expires April 16,2019 Q•� °„,;CF NEIN�S CERTIFICATION '',,,irnnita`� I,the undersigned officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY do hereby certify that I have compared the foregoing copy of the Power of Attorney and affidavit,and the copy of the Sections of the By-Laws of said Companies as set forth In said Power of Attorney,with the originals on file in the home of said companies,and that the same are correct transcripts thereof,and of the whole of the said originals,and that the said Power of Attorney has not been revoked and is now in full force and effect. IN TESTIMONY WHEREOF,I,have hereunto set my hand on this day, June 03,2020 A00891 *411,Ogee, Maria H.Branco,Assistant Secretary •r PERFORMANCE BOND • • The undersigned Pilot Rock Excavation, Inc. as principal. further referred to in this bond as Contractor,and International Fidelity Insurance Company as surety. further referred to in this bond as Surety, are jointly and severally bound unto City of Ashland. as obligee, further referred to in this bond as City, in the sum of One Million Two Hundred Sixty Nine Thousand Nine Hundred Two 75/00 Dollars($ 1,269,902.75 ' Contractor and City have entered into a written contract dated June 2,2020 , for the followingproject: INDEPENDENT WAY CONSTRUCTION No.2013-25. Thiscontract is further referred to in this bond as the Contract and is incorporated into this bond by this reference. The conditions of this bond are: 1. If Contractor faithfully performs the Contract in accordance with the plans,specifications and conditions of the contract within.the time prescribed by the Contract, as required by ORS 279C.380 through 279C.385,then this obligation is null and void; otherwise it shall remain in full force and effect. 2. If Contractor is declared by City to be in default under the Contract,the Surety shall promptly remedy the default,perform all of Contractor's obligations under the contract in accordance with its terms and conditions and pay to City all dainages that are due under the Contract. 3. This bond is subiect to claims under ORS 279C.380 through 279C.390. . 4. This obligation jointly and severally binds Contractor and Surety and their respective heirs. executors,administrators,successors. 5. Surety waives notice of modification of the Contract or extension of the Contract time. 6. Nonpayment of the bond premium shall not invalidate this bond. 7. The bond number and the name, address, and telephone number of the agent authorized to receive notices concerning this bond are as follows: Bond Number: 750390 Bond Agent: Bond Experts II,Ltd Address: 4850 SW Schoils Ferry Road Suite 204 Portland,OR 97225 Telephone: 503-292-2582 SIGNED this 3rd day of June 2020 • • 52 • . 1 I PERFORMANCE BOND Page 2 WITNESS: CONTRACTOR: Pilo k Excavation, Inc. • By: /Let tifrvk � (Corporate Seal) Title: P 4 e..0 4 Legal Address: 556, 3ak{31a v1 1V, ttitv , D)4 q751)2. Attest: a/4.---)4._ /Corporate Secretary WITNESS: SURcETBY; In ational Fidelity Insurance Company y • Itfrth qthit, (Corporate Seal) Title: Att rney-in-Fact Legal Address: One Newark Center 20th Floo Newark, NJ 07102 Attest: Attached Corporate Secretary 53