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HomeMy WebLinkAbout2025-098 AGRMT TDW Excavation LLC Clear form, CITY 01, 4SH-LAND Goods and Services Agreement City Information Contractor Information City of Ashland Firm lName: TDW Excavation LLC Attn: Ben Russell Contact: Tom Willis 1195 Oak St Address: 1851 Alta Vista Rd Ashland, Oregon 97520 Eagle Point, OR 97524 Phone (541) 552-2335 Phone (541) 499-1920 Email: ben.russeII@as In landoregon.gov Email: tdwexcavation@gmail.com om Contract Summary Procurement Method, Intermediate Procurement Completion Date: 12/25/2025 Contract Amount: $ 61,570.00 Sixty,;u ne thodfsand dive hwiridlr sa lnt ;dollar's Description of Services: Removal and transport of east oxidation dwtc,h material Supporting Documents: Estimate from TDW Excavation Ll Dated: 07/24/2025 Dated: Dated':. Dated: This Good . and Services Agreement (hereinafter "Agreement") is entered into by and between the City of Ashland, an Oregon municipal corporation (hereinafter "'City") and the Contractor listed under Contractor Information above, (hereinafter "Contractor")„ for the services listed under Description of Services and the Supporting Documents as noted in the Contract 'Summary above. This Agreement and the Supporting Documents shall be construed to be mutually complimentary and supplementary wherever possible, In the event of a conflict which cannot be so resolved„ the provisions of this Agreement itself shall control over any conflicting provisions in any of the Suppo ng Documents. In the event o conflict between provisions of the Supporting Documents, th drting Documents shall be given precedence in the order listed above.The Contractor's initials herein signify acknowledgment and agreement to this provision, if applicable, or if not sign " /A"'. The goods and services defined and described in the Supporting Documents shall hereinafter be collectively referred to as "Work," Page 1 of S: Goods and Services Agreement between the City of Ashland and TDW Excavation LLC 1. Term and Termination 1.1. Term. This Agreement shall be effective from the date of execution on behalf of the City as set forth below (the "Effective Date") and shall continue in full force and effect until the Completion Date indicated in the Contract Summary on page one of this Agreement unless sooner terminated as provided in Subsection 1.2. 1.1. Time is of the essence. Time is of the essence for Contractor's performance of each and every obligation and duty under this Agreement. City, by written notice to Contractor of default or breach, may at any time terminate the whole or any part of this Agreement if Contractor fails to provide the Work called for by this Agreement within the time specified herein or within any extension thereof. 1.2. Termination 1.2.1. The City and Contractor may terminate this Agreement by mutual agreement at any time. 1.2.2. The City may, upon not less than thirty (30) days' prior written notice, terminate this Agreement for any reason deemed appropriate in its sole discretion. 1.2.3. Either party may terminate this Agreement, with cause, by not less than fourteen {14) days' prior written notice if the cause is not cured within that fourteen (14) day period after written notice. Such termination is in addition to and not in lieu of any other remedy at law or equity. 2. Compensation 2.1. City shall pay Contractor the sum listed as the "Contract Amount" in the Contract Summary on page one of this Agreement as provided herein as full compensation for the Work as specified in the supporting documents. 2.2. In no event shall Contractor's total of all compensation and reimbursement under this Agreement exceed the "Contract Amount" listed in the Contract Summary without express, written approval from the appropriate Department Head or City Manager. Contractor acknowledges that any work delivered, or expenses incurred without authorization as provided herein is done at Contractor's own risk and as a volunteer without expectation of compensation or reimbursement. 3. Contractor's Obligations 3.1. Performance. Provide the goods or services as set forth in the Supporting Documents attached hereto and, by this reference, incorporated herein. 3.2. Nondiscrimination. Contractor agrees that no person shall, on the grounds of race, color, religion, creed, sex, marital status,familial status or domestic partnership, national origin, age, mental or physical disability, sexual orientation, gender identity or source of income, suffer discrimination in the performance of this Agreement when employed by Contractor. Contractor agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. Further, Contractor agrees not to discriminate against a disadvantaged business enterprise, minority-owned business,woman- owned business, a business that a service-disabled veteran owns or an emerging small Page 2 of 8: Goods and Services Agreement between the City of Ashland and TDW Excavation LLC business enterprise certified under ORS 200.055, in awarding subcontracts as required by ORS 279A.110. 3.3. Subcontractor Notification. In all solicitations either by competitive bidding or negotiation made by Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractors of the Contractor's obligations under this Agreement and Title VI of the Civil Rights Act of 1964 and other federal nondiscrimination laws. 3.4. Living Wage Requirements. If the amount of this Agreement is $27,163.00 or more, Contractor is required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in that chapter, to all employees performing Work under this Agreement and to any Subcontractor who performs 50% or more of the Work under this Agreement. Contractor is also required to post the notice attached hereto as "Exhibit A" predominantly in areas where it will be seen by all employees. 4. Contractor's Compliance with Tax Laws 4.1. Contractor represents and warrants to the City that: 4.1.1. Contractor shall, throughout the term of this Agreement, including any extensions hereof, comply with: • All tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; • Any tax provisions imposed by a political subdivision of the State of Oregon applicable to Contractor; and • Any rules, regulations, charter provisions, or ordinances that implement or enforce any of the foregoing tax laws or provisions. 4.1.2. Contractor further certifies that contractor is not in violation of any Oregon tax laws referenced in ORS 305.380(4). 4.2. Tax Compliance Breach. Contractor's failure to comply with the tax laws of the State of Oregon and all applicable tax laws of any political subdivision of the State of Oregon shall constitute a material breach of this Agreement. Further, any violation of Contractor's warranty, as set forth in this Article 9, shall constitute a material breach of this Agreement. Any material breach of this Agreement shall entitle the City to terminate this Agreement and to seek damages and any other relief available under this Agreement, at law, or in equity. 5. Insurance. Contractor shall obtain and maintain during the term of this Agreement and until City's final acceptance of all Work received hereunder, a policy or policies of liability insurance Each policy of such insurance shall be on an "occurrence" and not a "claims made" form, and shall include: 5.1. Commercial general liability -- with a combined single limit, or the equivalent, of not less than $2,000,000 (two million dollars) per occurrence and $3,000,000 (three million dollars) in the aggregate for Bodily Injury and Property Damage, Page 3 of 8: Goods and Services Agreement between the City of Ashland and TDW Excavation LLC 5.2. Commercial Automobile Liability -- with a combined single limit, or the equivalent of not less than $2,000,000 (two million dollars) for each accident for Bodily Injury and Property Damage, including coverage for owned, hired and non-owned vehicles. 5.3. Additional forms: (See Attached) 5.4. Worker's Compensation. Contractor shall, at its own expense, maintain Worker's Compensation Insurance in compliance with ORS 656.017,which requires subject employers to provide workers' compensation coverage for all of its subject workers. As evidence of the insurance required by this Agreement, the Contractor shall furnish an acceptable insurance certificate prior to commencing any Work with limits not less than $500,000. 5A.1. Workers'Com cation Exem tion: If applicable, Contractor affirms and certifies that it is exempt from providing Workers' Compensation per ORS 656.027. Exemption criteria: Contractor initials if exemptesurance. Date: 1 7 I 6. Additional Insured/Certificates of The Contractor shall name the City of Ashland, Oregon, along with its elected officials, officers, and employees, as Additional Insureds on all insurance policies (excluding Professional Liability and Workers' Compensation) necessary for this Agreement. This inclusion applies solely to the services provided by the Contractor under this Agreement. The Contractor's insurance must be primary and non-contributory. Before commencing work, the Contractor must provide acceptable insurance certificates as proof of the required coverage. These certificates must specify all parties included as additional Insureds, treating each named and additional named insured as if they were covered under separate policies, without increasing policy limits. Insuring companies or entities must be accepted by the City. Upon request, the Contractor must provide complete copies of insurance policies and trust agreements to the City.Additionally,the Contractor must provide an endorsement naming the City, its officers, employees, and agents as additional insureds by the Effective Date of this Agreement, accompanied by approved certificate(s) of insurance. 7. indemnity. Contractor shall defend, save, hold harmless and indemnify the City and its officers, employees and agents from and against any and all claims, suits, actions, losses, damages, liabilities, costs, and expenses of any nature resulting from, arising out of, of relating to the activities of Contractor or its officers, employees, contractors, or agents under this Agreement. 8. Notice Whenever notice is required or permitted to be given under this Agreement, such notice shall be given in writing to the other party by personal delivery, by sending via a reputable commercial overnight courier, or by mailing using registered or certified United States mail, return receipt requested, postage prepaid, to the addresses set forth above with a copy to: City of Ashland—Legal Department 20 E. Main Street Ashland, Oregon 97520 Phone: (541) 488-5350 Page 4 of 8: Goods and Services Agreement between the City of Ashland and TDW Excavation LLC 6. Remedies 6.1. In the event Contractor is in default of this Agreement, City may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, including, but not limited to: 6.1.1. Termination of this Agreement. 6.1.2. Withholding all monies due for the Work that Contractor has failed to deliver within any scheduled completion dates or any Work that have been delivered inadequately or defectively. 6.1.3. Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief. 6.1.4. These remedies are cumulative to the extent the remedies are not inconsistent, and City may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. 6.2. Default: The Contractor shall be in default of this Agreement if Contractor: commits any material breach or default of any covenant, warranty, certification, or obligation under the Agreement; institutes an action for relief in bankruptcy or has instituted against it an action for insolvency; makes a general assignment for the benefit of creditors; or ceases doing business on a regular basis of the type identified in its obligations under the Agreement; or, without written authorization by the City, attempts to assign rights in, or delegate duties under, this Agreement. 6.3. Liability Limitation.in no event shall City be liable to Contractor for any expenses related to termination of this Agreement or for anticipated profits. If previous amounts paid to Contractor exceed the amount due, Contractor shall pay immediately any excess to City upon written demand provided. 7. General Provisions 7.1. Non-exclusive Agreement. City is not obligated to procure any specific amount of Work from Contractor and is free to procure similar types of goods and services from other Contractors in its sole discretion. 7.2. Independent Contractor Status. Contractor is an independent contractor and not an employee or agent of the City for any purpose. 7.3. Statutory Requirements. The following laws of the State of Oregon are hereby incorporated by reference into this Agreement: ORS 27913.220, 279B.230 and 27913.235 7.4. Assignment. Contractor shall not assign this Agreement or subcontract any portion of the Work to be provided hereunder without the prior written consent of the City. Any attempted assignment or subcontract without written consent of the City shall be void. Contractor shall be fully responsible for the acts or omissions of any assigns or subcontractors and of all persons employed by them, and the approval by the City of any assignment or subcontract shall not create any contractual relation between the assignee or subcontractor and the City. Page 5 of 8: Goods and Services Agreement between the City of Ashland and TDW Excavation LLC 7.5. Force Majeure. Neither party to this Agreement shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the other or the other's officers, employees or agents. 7.6. Deliveries F.O.B destination. Contractor shall pay all transportation and handling charges for the Goods. Contractor is responsible and liable for loss or damage until final inspection and acceptance of the Goods by the City. Contractor remains liable for latent defects, fraud, and warranties. 7.7. Goods Rejection. The City may reject non-conforming Goods and require Contractor to correct them without charge or deliver them at a reduced price, as negotiated. If Contractor does not cure any defects within a reasonable time,the City may reject the Goods and cancel this Agreement in whole or in part. This paragraph does not affect or limit the City's rights, including its rights under the Uniform Commercial Code, ORS Chapter 72 (UCC). 7.8. Goods Warranty Representation. Contractor represents and warrants that the Goods are new, current, and fully warranted by the manufacturer. Delivered Goods will comply with Supporting Documents and be free from defects in labor, material and manufacture. Contractor shall transfer all warranties to the City. 7.9. Waiver of Breach. One or more waivers or failures to object by either party to the other's breach of any provision, term, condition, or covenant contained in this Agreement shall not be construed as a waiver of any subsequent breach, whether or not of the same nature. 7.10. Jurisdiction. This Agreement shall be governed by the laws of the State of Oregon without regard to conflict of laws principles. Exclusive venue for litigation of any action arising under this Agreement shall be in the Circuit Court of the State of Oregon for Jackson County unless exclusive jurisdiction is in federal court, in which case exclusive venue shall be in the federal district court for the district of Oregon. Each party expressly waives any and all rights to maintain an action under this Agreement in any other venue, and expressly consents that, upon motion of the other party, any case may be dismissed or its venue transferred, as appropriate, so as to effectuate this choice of venue. 7.11. Severance. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permitted the intent of Contractor and the City set forth in this Agreement. 8. Merger. This agreement and the attached exhibits constitute the entire understanding and agreement between the parties. No waiver, consent, modification or change of terms of this agreement 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 agreement. Contractor, by signature of its authorized representative, hereby acknowledges that he/she has read this agreement, understands it, and agrees to be bound by its terms and conditions. Page 6 of 8: Goods and Services Agreement between the City of Ashland and TCW Excavation LLC WITNESS WHEREOF, the parties have executed this Agreement in their respective names by their duly authorized representatives as of the dates indicated below. This Agreement may be executed in two counterparts, each of which shall be deemed an original,with equal force and effect as if executed in a single document. CITY OF ASHLAND: TDW Excavation LLC(CONTRACTOR): ........................ BY: 4 0 441::afK Signature Scott Fleury Signature Printed Name 8.11.2025 Printed Name Date Title Date Purchase Order No. (W-9 is to be submitted with this signed Agreement) APPROVED AS TO FORM: City Attorney Page 7 of 8: Goods and Services Agreement between the City of Ashland and TOW Excavation LLC City of Ashland,, Oregon ALL employers, described below rust comply with City of Ashland laws regulating payment of living wage. Employees must be Maid a hiving wage: w r w r w w w w w w - w w� • w w w •w �- w w w• � � w w ,w- •w- , www w w w w ". , • w, w w w '- w �^w, w• r ' � w w ♦ r- » N i w w r - i For additional information: Form W=9 Request for Taxpayer Give form to the (Rev.March 2024) Identification Number and Certification requester.Do not Department of the Treasury Internal Revenue Service GO to WWWJr3.gov1FonmW,9 for Instructions and the taterst information. send to the IRS., Before you begin.For guidance related to the purpose of Form W-9,see Purpose of Form,below, I Name of entity/Individual,An entry Is required.(For a sole proprietor or disregarded entity,enter the owner's name on line 1,and enter the bushessidisreganded el name on line 2.) ' 11� !L 2 Business namo/disregarded entity name If difil from above. as Check the appropriate box for federal tax classification of the entityAndividuar whose name Is entered on line 1,Check 4 Exemptions(codes apply only to only one of the following seven boxes. OL call entities,not individul co Individuaysole proprietor E] C corporation ;g_S corporation [] Partnership Trust/estate see Instructions on page 3): LLC.Enter the tax classification(C=C corporation,S=S corporation,P=partnership) Exempt payee code(if any) Note:Check the"Ll box above and,in the entry space,enter the appropriate code(C,S,or P)for the tax classification of the LLC,unless it Is a disregarded entity.A disregarded entity should instead check the appropriate Exemption from Foreign Account Tax as box for the tax classification of As owner. Compliance Act(FATCA)reporting 1Z Other(see instructions code(If any) 3b If on line 3a you checked"Parmarshiip"or"Trustlestate,"or checked"LLC"and entered"P as its tax classification, and you are providing this form to a partnership,trust,or estate In which you have an ownership interest,check (Applies to accunts maintained this box If you have any foreign partners,owners,or beneficiaries.Seel instructions 0 outside the UnJted States.) 5 Addr m(nuns street,and apt.or sullto ) S Requester's name and address(optional) _4o..Sea Vnstr tons, 6 City,state,and ZIP V 0 Eaq I 1 00- 0 f 7 List al number(s)here(optional) Enter your TIN in the appropriate box.The TIN provided must match the name given on line I to avoid Soclat security number backup withholding.For individuals,this is generally your social security number(SSN).However,for a FT7 resident alien,sole proprietor,or disregarded entity,see the instructions for Part 1,later.For other entities,it is your employer identification number(EN).If you do not have a number,see Now to get a TIN,later, cnr Note:If the account is in more than one name,see the instructions for line 1.See also What Name and Employer Identification number Number To Give the Requester for guidelines on whose,number to enter. MIZ Under penalties of perjury,I certify that: 1.The number shown on this form IS My correct taxpayer identification number(or I am waiting for a number to be issued to me);and 2.1 am not subject to backup withholding because(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal Revenue Service(IRS)that I am subject to backup withholding as a result Of a failure to report all interest or dividends,or(c)the IRS has notified me that l am no longer subject to backup withholding;and 3,1 am a U.S.citizen or other U.S.person(defined beloll and 4.The FATCA code(s)entered on this form(if any)indicating that I am exempt from FATCA reporting is correct. Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return.For real estate transactions,item 2 does not apply.For mortgage interest paid, acquisition or abandonment of secured property„c,ancpfrition of debt,contributions to an individual retirement arrangement(IRA),and,generally,payments other than interest and dividendsl not r=qu�Ao to sit n the certification,but you must provide our correct TIN.See the instructions for Part It,later. Sign Signature of Here � U.S.person 017_ Date A Al General lnstr�uctions New line 3b has been added to this form.A flow-through entity is required to complete this line to indicate that it has direct or indirect Section references are to the Internal Revenue Code unless otherwise foreign partners,owners,or beneficiaries when it provides the Form W-9 noted, to another flow-through entity in which it has an ownership interest.This Future developments.For the latest information about developments change Is Intended to provide a flow-through entity with information related to Form W-9 and its instructions,such as legislation enacted regarding the status,of its indirect foreign partners,owners,or after they were published,go to www.irs.gov/F`on-nW9, beneficiaries,,so that it can satisfy any applicabJe reporting requirements.For example,a partnership that has any indirect foreign What's New partners may be required to complete Schedules K-2 and K-3.See the Line 3a has been modified to clarify how a disregarded entity completes Partnership Instrueficins,for Schedules K-2 and K-3(Form 1065). this line,An LLC:that is a disregarded entity should check the Purpose of'Form appropriate box for the tax classification of Its owner.Otherwise,It should check the"LLC"box and enter its appropriate tax classilificaton. An individual or entity(Form W-9 requester)who is required to file an information return with the IRS is giving you this form because they Cat.No.10231X Form W-9'(Rev.3-2024)