HomeMy WebLinkAbout2024-036 PO 20240353 - Vitus Construction IncL
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City of Ashland
ATTN: Accounts Payable
20 E. Main
Ashland, OR 97520
Phone: 541 /552-2010
Email: payable -ashland.or.us
VITUS CONSTRUCTION INC
1912 SECOND AVENUE
GOLD HILL, OR 97525
Purchase Order
Fiscal Year 2024 Page: 1 of: 1
THIS PO NUMBER MUST APPEAR ON ALL
INVOICES, AND SHIPPING DOCUMENTS.
Purchas
Order # e 20240353
S C/O Public Works Department
IH51 Winburn Way
Ashland, OR 97520
Email: MICHAEL.JAY(cDASHLAND.OR.US
T Phone:541/488-5347
O Fax:541/488-6006
Vendor Phone Number
Vendor Fax Number
Requisition Number
Delivery Reference
20240164
Date Ordered
Vendor Number
Date Required
Freight Method/Terms
Department/Location
05/06/2024
498
FOB ASHLAND OR
Public Works De artment
Item#
Descri tion/PartNo
QTY
UOM
Unit Price
Extended Price
Briscoe school floor replacement
1
Briscoe school flooring replacement
1.0
EACH
$180,990.00
$180,990.00
Project Account: E-201927-999
******,,..,,,.. ' GL SUMMARY
088400 - 704200 $180,990.00
By: Date:
Authorized Signature
PO Total $180,990.00
CITY OF
ASHLAND
PUBLIC IMPROVEMENT CONTRACT
FOR
Briscoe School Floor Replacement Project
PROJECT NO.2019-27b
This Public Improvement Contract (hereinafter "Contract") is entered into by and between the CITY OF
ASHLAND, an Oregon municipal corporation (hereinafter "City"), and
Vitus Construction, 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:
lliickael Jai•
2. WORK:
2.1. The Work under this Contract is for the Briscoe School Floor Replacement Project 2019-27b
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.
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 Briscoe School Floor Revlacemeut Proiect 2019-27b
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:
Im
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 by September 13a',
2024.
4. CONSIDERATION
4.1. City agrees to pay Contractor, at the times and in the manner provided in the Contract
Documents, tlue sum of $180,990.00 for performing the Work
required by this Contract, including allowable expenses. This ruin cannot be modified except
by Change Order approved in writing by the City. Any progress payments to Contractor sliall
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 fiinds have been appropriated to make payments required by this
Contract during the current fiscal year. Contractor understands and agrees that C'ity'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 fiuther liability to Contractor.
5. CONTRACTOR'S REPRESENTATIONS
In order to induce City to enter into this Contract. Contractor makes the folloxving representations:
5.1. Contractor has examined and carefidly 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 carefidly studied all drawings of physical conditions relating to existing surface
or subsurface structures at the Site that have been identified or provided in the project bid
documents especially with respect to Tecimical Data in such reports and drawings. and reports
and drawings relating to Hazardous Environmental Conditions, if any. at or adjacent to tine Site
that have been identified in the project bid documents, 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 oil the information and observations referred to in the preceding paragraph. Contractor
agrees that no fiurther examinations. investigations. explorations, tests. studies. or data are
is
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.
0. 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.
%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 ffirnishing of the Work.
5.10. Contractor represents it has the proper asbestos certifications to complete the floor removal
part of the project.
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 fonun.
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
personam jurisdiction of said courts. In no event shall this section be construed as a xvaiver of the
City of any form of defense or immunity.
CONTRACTOR DATA, CERTIFICATION, AND SIGNATURE
Business Name (please print): Vitus Construction, Inc
Contact Name: Corey Phone: 541-855-7177Fax: 541-855-7520
Address PO Box 1097, Gold Hill, OR 97525
Do Not Wy-ite Federal and State Tav ID Numbers on this Agreement: One copy of li'-9 is to be
submitted with the signed couh•act to be kept on file in the Ciro ofAshlaud Finance Departineut.
Ashland Business License #14001523 Construction Contractors Board # 63643
Citizenship: Nonresident alien
Business Designation (check one):
Partnership x Corporation
Yes X No
Individual Sole Proprietorship
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 31 percent backup withholding.
I, the undersigned, understand that the Standard Terms and Conditions For Public Improvement
Contracts (Exhibit A) together with Exhibits B through K together with all other Contract
Documents as described in Standard Terms and Conditions Section 5 below, and the separately bound
Oregon 2021 Standard Specifications for Construction, as amended by the City of Ashland's most
recent Addenda to the 2021 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. I 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; I hereby certify, under penalty of perjury and false swearing,
that Fmy business am/is not in violation of any Oregon tax laws; I further certify that the certification
and representations in Standard Term and Condition # 16 [CCB Registration Requirements] are true
and correct, and further I certify that I am an independent contractor as defined in ORS 670.600.
20
CONTRACTOR:
Z`� President
Signature/Title
Corey E. Vitus
Printed name
4/24/2024
Date
NOTICE TO CONTRACTOR: Ybis contract does not bind the Cite of.4shland unless and until it has
been executed by the Public Contracting Officer or designee.
CITY OF ASHLAND SIGNATURE
CITY:
City Manager, City of Ashland
5/1 /2024
Date
ATTACM IENTS: Certificate of Representation
Standard Terms & Conditions
Bid Schedule
Insurance Requirements
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
G) it is exempt from backup withholding or
00 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 back-up 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 perjury 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:
x (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 file business.
X (2) Commercial advertising or business cards or a trade association membership are purchased
for the business.
X (3) Telephone listing is used for the business separate from the personal residence listing.
X (4) Labor or services are performed only pursuant to written contracts.
X (5) Labor or services are performed for two or more different persons within a period of one year.
X (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.
t� ` �--- 4/24/2024
Contractor Date
m
EXHIBIT A: STANDARD TERMS AND CONDITIONS FOR PUBLIC
IMPROVEMENT CONTRACTS
1. Contractor is Independent Contractor
a. Contractor shall perforni 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) tneets the specific independent contractor standards of
ORS 670.600. as certified on the Independent Contractor Certification Statement attached as Exhibit
C.
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.
Subcontracts and Assignment
Contractor shall not subcontract any of the work required by this contract, or assign. sell. dispose ofor
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
assigntttent. 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 equiptent. 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 06. Workers' Compensation.
3. No Third -Party Beneficiaries
City and Contractor are the only parties to this Contract and are tite only parties entitled to enforce its
tenors. Nothing in this Contract gives or provides any benefit or right, whether directly, indirectly. or
otherwise. to third persons tmless 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
9
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.
5. Contract Documents
The Contract Documents, tyhich 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, Construction
Drawings, Standard Drawings, and Contract Addenndunns. all attached hereto, and incorporated herein by
this reference, together with the Prevailing Wage (BOLI) ii Opp able AND mn othev stern melt boned
reference, Oregon 2021 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 tine Contract Documents. or otherwise available from the City, shalt be deemed a
part of the Contract Documents and incorporated herein. where applicable, as if filly 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 tine Contract Documents, and the
written resolution thereof by the City is acceptable to tine Contractor, and the Contract Documents are
generally sufficient to indicate and convey understanding of terns and conditions for performing and
fiurnishinng the project work.
7. Drug Testing [ORS 279C.505(21)]
a. Contractor shall certif}, to the City that it has a drug -testing program in place for all its employees that
includes. at a tnininnun, 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 nneets the above requirements will be deemed a ' Qualif}-ing 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.
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 inn
full force and effect for the duration of this contract. and that Contractor will comply with the
provisions of subsection (d) below. Further. the C'ity's performance obligation (which includes.
without limitation. tine 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 Qualih ing
Employee Drug-testuig 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
ii. Require that tite 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 «•ill 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 pernvts or easements or utility
relocation. The Contractor shall continence the project work within ten (10) days of the date of the -written
Notice To Proceed. Contractor is not to commence Nvork under the Contract prior to such written notice.
9. Suspension of the Rork
Tile City, and its authorized representatives. ilia), suspend portions or all of the project Nvork 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. wltich are unsuitable for performing the project Avork:
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 (d). (e) and (f). tite 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 allo-wance
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 NVork 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.
ord fiances. riles 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 tite Contractor has not progressed satisfactorily with
tite 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 tenninate this Contract for any reason
deemed appropriate in its sole discretion.
c. The City may tenninate 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 tine 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 tine breach within 15 days of tine notice. then the party giving the notice may terminate
the Contract at any time thereafter by giving a written notice of termination.
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 tine 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 tine
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
tine 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 rennedy shall be lunited to
ternination of the Contract and receipt of payment as provided in section 11(b).
0. 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 lunited to background
data, documentation and staff work that is preliminary to final reports, are the property of City. Draft
documents and preliminary work submitted to the City for review and continent shall not be considered as
owned, used or retained by the City until the final document is submitted.
The City shall ov m 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 Nvork products shall be considered • %vorks 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.
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'.S30 and ORS 279C'.580. 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 Rage 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 into this contract by this reference as though set forth
in full. Without limiting the foregoing. Contractor expressly agrees to comply Nvith: (i) any requirements
of the DAMS 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 Nvith
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 shall be considered
included and incorporated into the Contract and made a par 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.
fiurther, that all subcontractors perfornning 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 tine 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 hiperforming 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 tine
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 Nvebsite: https: hszsly.oreeon.gov, boli tVHD PNVRPages'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 «'age Law. CONTRACTOR AGREES TO BE BOUND BY A3 D WILL COMPLY WITH
PROVISIONS OF ORS 279C.840. Pursuant to ORS 279C.830(1), the existing prevailing rate 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 S50,000 or more, all workers shall be paid not less than such specified
nnininmm 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 tine commissioner and as provided in ORS 279C.825(1). The fee
shall be paid out or before tine 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 «'age and Hour Division Prevailing Wage Unit 800
N.E. Oregon Street T32 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 S30.000 as
required by ORS 2 79C.836 and shall cause all subcontractors to do tee same prior to starting work oil
the project. [ORS 279C'.830(2)] The bond must provide that tine contractor or subcontractor will pa}'
claims ordered by the Bureau of Labor and Industries to workers performing labor upon public works
projects. The bond must be a continuing obligation. and the surety's liability for tine aggregate of claims
that may be payable from the bond may not exceed the penal stun of the bond. The bond must remain
in effect continuously until depleted by claims paid under this section. unless tine 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 S50.000 or more, Contractor shall supply
and file, and require every Subcontractor to supply and file, Nvith 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 /Overthne 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 tune 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 %vhen the
work week is fire consecutive days, Monday through Friday: or
(2) For all overtfine 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 overture 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 Nvork.
(2) Maintained the circular continuously posted from the inception to the completion of the
contract on which workers are or have been employed.
(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 AVorkers 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 %vages of employees raider 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 wlro
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. Retaluage
,q
Tine withholding of retainage by a contractor or subcontractor on public improvement contracts shall be in
accordance with ORS 701.420. [ORS 279C.555] "Retaitnage" means the difference between the amount
earned by a contractor on a public improvement contract and the amount paid on tine 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 tine 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 tine 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 savings 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 tine exercise of the options in ORS
279C.560(i) or (5), the City may recover such costs from the contractor by reduction of the final payment.
As work on the contract progresses. the contracting agency 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 tine United States.
b. Other obligations of the United States or its agencies.
c. Obligations of any corporation wholly oNviued 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 fiends retained. or to be retained, by the City in a form acceptable to the City. The bond 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 tine value of the bond and pay the amount of the reduction to
the contractor in accordance with ORS 279C.570. NVhenever 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 trill 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 snake 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 contnrencing %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 (850ND) 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 C'ity's interest including
applicable insurance and transportation to the site. and a statement from Contractor explaining Nvhy it
is necessary to procure said equipment and'or materials. When such payments are made, the
Contractor warrants and guarantees that tine 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 (51.000), 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 Lunip Sum basis. Contractor shall prepare
an itemized cost breakdown relating thereto and have the City approve same before conuuencing 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 tine opinion of the City. truly
represent actual relative costs of different pars of work. a percentage of the Unit Price may be used in
making progress estimate adliustinerrts.
e. If the City receives written notice of any unsettled claims for damage or other costs due to Contractor's
operations including. Nvithout limitation. claims from any City Department or other governmental
agency, all 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 tWi (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. AvWchever is the earlier date. Failure to pay progress payments within the titnefrarne
set forth above will result in tite 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( l)(5)(6).
g. Payment will be issued by Cit' for the amount of the approved estimate. less five percent (5° o )
retainage. Except as provided in paragraph 19 above and the applicable ORS Sections noted herein.
such amount of retainage shall be xithheld and retained by City until it is included ill and paid to
Contractor as part of the final payment of the Contract amount. Upon Substantial Completion of the
work under tite Contract which shall be understood to be not less than ninety-seven and one-half
Percent (97.50o) of the work. the City may. at its discretion. reduce the retained amount equivalent to
M
not less than one hundred percent (100° o) of the contract value or estimated value or estimated cost.
whichever is greater, of the work remaining to be done. [279C.570(7)]
11. The City may decline to approve an application for payment and may withhold such approval if, in the
C'ity'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
tlhe 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 tune, (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 tine
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 COINIPLETION. Contractor shall notify tine City in writing when all or a portion of
tine 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 E. 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.
FL`AL COMPLETION. Contractor shall notify- the City in writing when work is 1000 o complete. If
it appears to the City that the work is not 100% complete. the City shall not make a final inspection.
The City may make a general list of nnaior work components remaining. If it appears that the work is
100° o complete, the City shall. within fifteen (15) days after receiving notice. make n 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, mchudm4 but not limited to. the submission by tine Contractor of a signed Certificate of
Compliance. Exhibit F and executed "Release of Liens and Claims". Exhibit G.
NVhen the work is 1000o complete. the City shall prepare a final 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. Unless
otherwise provided as a Special Provision. when City accepts the Certificate of Filial Completion, the
date the Contractor signs the Certificate of Final Completion shall be the date tine 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 Nyith 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 tiluely completion.
If the Contractor believes the quantities and amounts specified in the final pay estilnate prepared by
the City to be incorrect. Contractor shall submit to the City within five (5) working days of receipt of
the City's final pay estunate, 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 so submitted 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 continence any suit or action to collect or enforce the claim or claims for atny
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 Filial Completion
to the Contractor's last known address as shown in the records of City. Tine City's issuance of a revised
final estimate pursuant to this subsection does not alter tine original final 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 tine 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 finlly executed Certificate of Final Completion from the Contractor, the City will
submit the Certificate of Filial Completion and final estimate to the City for approval. Upon approval
and acceptance by tine 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 tine interest on final paynnenV retainage requirements of ORS
279C.570(8).
Monies earned by tine 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 Filial
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. tine Contractor will provide City with evidence that the requirement of ORS
279A.120(3) has been satisfied.
If Citv declares a default of the Contract. and Surety campletes said Contract. all payments made after
declaration of default and all retainage held by Citv_ shalt be paid to Surety_ and not to Contractor ill
accordance with the terms of the Contract.
IM
Acceptance by Contractor of final payment shall release City from any and all claims by Contractor
whether known or unknown, arising out of and relating to the work. I`'o 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.
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 tine 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
(anndlor 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 clauns or rights to adjustment un 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 an), and all right or
remedy by way of restitution and quawniu tuei-idt 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 perforating
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. Ann interest penalty clause that obligates tine 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 penain
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 tine
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 out 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 paynietnt clause and an interest penalty clause confonning to the standards of section a. above in
4
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 detennniued and certified to tine City that the
subcontractor is entitled to tine 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 tine
subcontract pursuant to subsections (3) and (4) of ORS 279C.580 does not constitute a dispute to
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. Tine Contractor shall make payment promptly. as due. to all persons supplying to the Contractor
labor or material for tine performance of the work provided for in the contract. [ORS 279C.505(1)(a)]
The Contractor shall pay all contributions or amounts due tine 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 pennit 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 an%. labor or material furnished. [ORS 279C.505(1)(c)] Tine
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 refitses to make prompt payment of
any claim for labor or services furnished to tine Contractor or a subcontractor by any person in
connection with the Contract as such claim becomes due, tine proper officer(s) representing the City
may pay the claim and charge the amount of the payment against fiords 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 furtnishing 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
conunencing 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.
Tine rate of interest charged to the contractor or first -tier subcontractor oil the amount due shall equal
three tunes the discount rate on 90-dav 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
tna}' 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.
i. Pursuant to ORS 279C.515(4). the payment of a claim in the manner authorized in this section does
not relieve the contractor or tine contractor's surety from obligation with respect to any unpaid
claims.
j. Living Wage Rates: If tlne annonutt of this contract is S1S.703 or ttnore. and Contractor is not paying
prevailing wage for the work. Contractor must comply with Chapter 3.12 of tine 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 500% 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 withui the tiniefranie 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 by
City if the project work 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 ainiount per day based oil 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-estiniation of the
damages expected because of a delay in the completion of this project.
Any suits due as liquidated damages shall be deducted from any money due or which may become clue 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 tine Contractor that
the work has been unavoidably delayed by conditions beyond the control of tine 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 harmless. indeninify. 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 connection 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 brouelit against City under state or federal workers
compensation laws. Contractor shall also defend and indeinnify Cite 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 tlue 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 agairnst the City. the Contractor shall, if the City
so elects and upon tender by the City. defend the saine at the Contractor's sole cost and expense, promptly
satisfy any judgment adverse to the City or to tine 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 B. 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 tine Contractor such insurance as the City may deetnn proper. 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 inuitediate tertnittation 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 C'ity'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. Perfoi-tnance, Payment and Warranty Bonds / -Notice of Bond Claims
At the tune 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 all 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'_79.380. The bonds shall be continuous in effect and shall remain in fall force and
effect until compliance with and fulfillment of all tennis 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. Tile bond(s) or other financial assurance is subject to
approval by the City.
Contractor shall fitrnish a separate warranty bond written by a corporate surety or other financial assurance.
in all amount equal to 10% of the final annount of the contract. The City may pennit the warranty amount
to be included in the initial performance and payment bonds. The warratnty bond or other financial
assurance shall be in effect for a period of one year from the date of Final Completion. The City tnay
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.
Tine notice of claim on a bond required by ORS 279C.600 must be sent by registered or certified trail 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 claimm by the Commissioner of the Bureau of Labor and
Industries last provided labor. Tine notice may be sent or delivered to tine contractor at any place the
contractor maintains an office or conducts business or at the residence of the contractor. i`;otiyithstanding
the above. if the claim is for a required contribution to a fond of any employee benefit plan. the notice
required by ORS 279C'.600 must be sent or delivered within 150 days after Elie employee last provided
labor or materials.
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 necessan, repairs and replacements to remedy, in a mariner satisfactory to the City and at no cost to the
City, any and all defects, breaks. or failures of the work occurring -,vthin one year following the date of
completion due to faulty or inadequate materials or workmanship. Repair damage or disturbances to other
improvements under. Nvithin. 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 pan, 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.
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 front this Agreement on the grounds of sex. race. color. creed. marital status, age.
sexual orientation or national origin. Contractor shall comply with provisions of ONvner's Equal
Opportunity Policy and comply with ORS Chapter 659 and ORS Chapter 659A relating to unla«fitl
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 vears 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. Coustivction Debris and Yard Waste
Contractor shall salyase or recycle constriction 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.
:S
Federal Agencies:
Agriculntre. Department of
Forest Service
Soil Conservation Service
Conuuerce Department of
National Oceanic and Atmospheric Administration (NOAA)
National Marine Fisheries Service (NMFS)
Defense. Department of
Army Corps of Engineers
Energy. Department of
Federal Energy Regulatory Conunission
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 I'vIanagetnent
Bureau of Indian Affairs
Bureau of ,lines
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 Qualitv
Department of Fish and Wildlife
Department of Forestry
Department of Geology and Mineral Industries
Department of Human Resources
Department of Land Conservation and Development Conunission
Parks and Recreation
Department of Soil and Rater Conservation Commission
State Engineer
State Land Board (Lands, Division of State)
Water Resources Department
Local Agencies:
CITY of ASHLAND
City Comicil (Ashland Municipal Code)
Comm Courts
County C'ontimissioners 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 successfitl bid. the
City may:
(a) Terminate tine 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;
(e) Solicit bids for a new contractor to provide the necessary services; or
(f) Issue the contractor a change order setting forh 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 tine ordinances, rules or regulations identified above. If
Contractor encounters a condition not referred to in the solicitation documents. not caused by the successfitl
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. rile or regulation, the Contractor shall not continence 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 time 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 tine work itself;
(e) Use non -City forces already under contract with the City;
(d) Require that the underlying property owner be responsible 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 cottracting agenev 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 (i) of this 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 knoNvn environunental and natural
resource risks to a Contractor by listing such environunnental and natural resource risks in the solicitation
documents.
34. Waive].
Tile 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 estoppel 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 fitrnislted by tine Contractor. or
from showing that any such measurement, estimate or certificate is untrue or incorrectly nnade, or that
work or materials do not conform in fact to the Contract. City shall not be precluded or estopped.
notwithstanding an)' such measurement. estimate or certificate. or payment in accordance therewith, from
recovering from tine Contractor and their Sureties such damages as it may sustain by reason of their failure
to comply with terns of the Contract, or from enforcing compliance with the Contract. Neither acceptance
by City, or by any representative or agent of the City, of the ,vliole or any part of tine 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 field to be a waiver of ally
other breach.
35. Errors
The Contractor shall perform such additional work as may be necessary to correct errors in tine 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 an%' lace. the validity of the remaining terns and provisions shall not be affected. and the
rights and obligations of tine parties shall be construed and enforced as if the contract did not contain the
particular term or provision held invalid.
37. Attornev'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 tine 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. Tine Contractor shall provide a. business license number in the space
provided in this contract.
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39. NoticesBills/Payinents
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
Michael Jay — Project Manager
Public Works
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
THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT
BETWEEN THE PARTIES. NO WAIVER. CONSENT, MODIFICATION OR CHANGE OF TERMS
OF THIS CONTRACT SHALL BD1D 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
«'RITTEI\°. NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. BY ITS SIGNATURE.
CONTRACTOR ACKNI O«'LEDGES IT HAS READ AND UNDERSTANDS THIS CONTRACT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
-1_
EXHIBIT B: 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 othernvise 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 tender 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 ❑
S 1,000,000 or ® S2,000.000 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 connpleted 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 ❑
S 1.000.000 or ® S2.000,000 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
❑ 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 stnictures: (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 tine 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 Insureds. 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.
Tlie Contractor shall defend, indemnifv. 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 tine Contractor's or subcontractor's failure to
provide workers compensation and employers liability coverage.
Certificates of Insurance. Contractor shall fiirnish 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.
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EXHIBIT C: CERTIFICATION STATEMENT FOR CORPORATION OR
INDEPENDENT CONTRACTOR
A. CONTRACTOR IS 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.
Vitus Construction, Inc f v�f 4/24/2024
Entity Signature Date
B. CONTRACTOR 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 ani
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.
(Check four or more of the following:)
44
x 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.
x B. Commercial advertising or business cards are purchased for the business. or Contractor has a
trade association membership.
x C. Telephone listing is used for the business that is separate from the personal residence listing.
x D. Labor or services are performed only pursuant to written contracts.
x E. Labor or services are performed for two or more different persons within a period of one year.
x 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, ]told haruniess and
Indemnify the CITY of ASHLA_ND, its elected and appointed officials, employees, volunteers and
agents front any such action, claim, judgment, flue, 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 fit addition to any indemnification other wise in this agreement.
Contractor Signature
Project Manager Signature
Date
Date