McDonald & Wetle ~ CP11007 Contract
ATTACHMENT H
CITY OF TIGARD,OREGON
PUBLIC IMPROVEMENT CONTRACT—PWR COVERED PROJECT
TIGARD PERMIT CENTER RE-ROOF PROJECT
THIS CONTRACT,made and entered into this 18`'day of August, 2010, by and between the City of
Tigard,a municipal corporation of the State of Oregon,hereinafter called "City" and McDonald &Wetle, Inc.
hereinafter called"Contractor",duly authorized to perform such services in Oregon.
RECITALS
WHEREAS,the City requires services which Contractor is capable of providing,under terms and conditions
hereinafter described;and
WHEREAS,time is of the essence in this contract and all work under this contract shall be completed within
the time period stated in the Bid Proposal;
THEREFORE,in consideration of the promises and covenants contained herein,the parties hereby agree as
follows:
TERMS OF AGREEMENT
1. Services
The existing roof of the City of Tigard's 11,840 square foot Permit Center facility has failed. Some
areas of the roof have deteriorated to the point that the R-Value could be 0. American Recovery and
Reinvestment Act (ARRA) funds in the form of an Energy Efficiency and Conservation Block Grant
from the Department of Energy will be used to replace the existing roof with a new Energy Star
compliant roof. The new roof system will carry an R-Value of at least 20.5. The replacement roof
should result in a roughly 13 percent reduction in energy use, (approximately 1003 therms pet year, or
20,060 therms over the 20+year life of the new roo fl. This translates to a reduction in GHG emissions
of 5 metric tons of CO2 annually, or 100 metric tons of CO2 over the life of the roof. All work shall be
done full compliance with the incorporated project specifications contained in Volumes 1 and 2.
2. Prevailing Wage
The provisions of U.S. Department of Labor's Labor Standards Provisions (29 CFR Part 5.5), ORS
Chapters 279A and 279C, and all other Oregon and Federal provisions pertaining to minimum salaries
and wages shall be incorporated by reference as if fully set forth in any contract resulting from this
Invitation to Bid. The successful bidder shall agree that the workmen in each trade or occupation
required for the work to be done pursuant to the resulting contract, employed in the performance of
the resulting contract, either by the successful bidder or any subcontractor or other person doing or
contracting to do any part of the work contemplated by the Contractor shall be paid not less than the
prevailing, minimum hourly tate of wage specified by the Commissioner of the Bureau of Labor, and
attached hereto.
Notwithstanding any other provision of law and in a manner consistent with other provisions of this
Act,all laborers and mechanics employed by contractors and sub contractors on projects funded
directly by or assisted in whole or in part by and through the Federal Government pursuant to this Act
shall be paid wages at Cates not less than those prevailing on projects of a character similar in the locality
as determined by the Secretary of Labor in accordance with subchapter N of chapter 31 of title 40,
United States Code (`Davis Bacon'). With respect to the labor standards specified in this section,the
Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14
of 1950 (64 Stat. 1267;5 U.S.C.App.) and section 3145 of title 40,United States Code.
Effective January 1,2006,Oregon law requires that workers on projects funded in whole or in part with
federal funds that require federal(Davis Bacon) prevailing wage rates will be paid the higher of either
the federal Davis Bacon rates or Oregon prevailing wage rates (also called"PWR"). In addition,the
project is also subject to compliance with all Bureau of Labor and Industries (BOLI) requirements. See
ORS 279C.800 at www.leg.state.or.us/ors/279c.ht-nL
House Bill 2021 enacted during the 2007 Assembly of the Oregon Legislature makes a public agency
liable for any wages,fringe benefits,and liquidated damages unpaid to workers as a result of the public
agency failing to include information about prevailing wage rates in the specifications for public
contracts. This law was effective January 1,2008.
For contracts$50,000 or greater,the City shall pay a fee equal to one-tenth of one percent (.001) of the
price of the contract. The fee shall be paid on or before the first progress payment or 60 days from the
date work first began on the contract, whichever comes first. The fee is payable to the Bureau of
Labor and Industries and shall be mailed or otherwise delivered to the Bureau at the following address:
Bureau of Labor and Industries
Wage and Hours Division
Prevailing Wage Unit
800 NE Oregon Street,#32
Portland,Oregon 97232
Contractor shall provide proof as requested to the City prior to the beginning of any of the work that
the Contractor has filed a public works bond with a corporate surety in the amount of$30,000 with the
Construction Contractors Board as required under Oregon PWR law.
3. Mandatory Pre-Construction Conference
Under the requirements of the Davis-Bacon Act, a preconstruction conference will be held after the
contract award, but prior to the start of construction. Those attending the conference must include a
representative of the developer and the payroll clerk of the Contractor. The conference will include
thorough instructions relative to all labor standards requirements.
4. Contract Documents
The Contractor is hereby bound to comply with all requirements of this agreement, the Contractor's
proposal, the detailed specifications and requirements, the drawings, and the special conditions and
modifications in conditions as set forth in the documents prepared by the City and the performance
pertaining to this contract,in the City of Tigard, Oregon, and by this reference made a part hereof to
the same legal force and effect as if set forth herein in full.
5. City's Representative
For purposes hereof, the City's authorized representative will be Nicklas Nissan, Facility Services
Supervisor,who can be reached by mail at 13125 SW Hall Blvd.,Tigard, Oregon 97223; by telephone
at(503) 718-2605;or via email at ngn@tigard-or.gov.
6. Contractor's Representative
For purpose hereof, the Contractor's authorized representative will be Bob Bolt,who can be reached
by mail at 2020 NE 1946,Portland, Oregon 97230 or by phone at(503) 667-0175.
7. Contractor Identification
The City of Tigard Business Tax is required from the Contractor. Chapter 5.4 of the Tigard
Municipal Code states any business doing business in the City of Tigard shall pay a City of Tigard
Business Tax. No contracts shall be signed prior to the obtaining of the City of Tigard Business
Tax. Contractor shall complete a Federal W-9, Request for Taxpayer Identification Number and
Certification Form for the City as well as provide the Contractor's Duns and Central Contractors
Registry (CCR) numbers. Federal Taxpayer Identification, Duns, and CCR numbers shall also be
provided to the City for all sub-contractors on this project.
S. Compensation
Work under this ITB's resulting contract will be funded,in part or in its entirety,with federal funds
from the American Recovery and Reinvestment Act through the Safe Drinking Water Revolving
Loan Fund.
A. Progress Payments: City agrees to pay Contractor an amount not exceeding Two Hundred
Eighty Two Thousand Five Hundred and No/100 Dollars ($282,500.00) for performance of
those services provided hereunder, which payment shall be based upon the following
applicable terms:
1) Payment shall be based upon the unit prices bid by the Contractor,as listed in attached
proposal. Contractor shall prepare and submit each month to the City, at 13125 SW
Hall Blvd., Tigard, Oregon 97223, a statement of services rendered, (indicating the
description of each service used in the proposal and the dollar amount of each service
completed through the stated date), together with a request for payment duly verified
by the Contractor's Representative.
2) Payment by the City shall release the City from any further obligation for payment to
Contractor for services performed or expenses incurred as of the date of the statement
of services. Payment of installments shall not be considered acceptance or approval of
any work or waiver of any defects therein. City certifies that sufficient funds are
available and authorized for expenditure to finance costs of this contract.
3) Contractor shall include proof of payment to any and all subcontractors and suppliers
with each statement submitted to the City. The City shallretain the right to withhold
payments if required proof of payment to subcontractor and suppliers is not included
with a statement.
4) As required under State of Oregon Prevailing Wage Rate (PWR) Law, the City shall
withhold 25% of any progress payment amounts owed to Contractor if Contractor has
failed to file certified payrolls sheets with the City
5) Costs associated with the green infrastructure components of this projects must be
tracked separately by the City and Contractor. Contractor shall break these cost out
separately on any billed invoice. The City will identify the green components prior
work start.
B. Timing of Payments: Progress payments,less a five percent retainage as authorized by ORS
279C.555, shall be made to the Contractor within twenty (20) days of the City's receipt of the
statement of services. The Contractor agrees that the "Time of Completion" is defined herein,
and agrees to complete the work by said date. The Contractor and City agree that the City will
suffer damages each day the work remains uncompleted after the Time of Completion and
that the amounts of those damages are difficult to calculate. Contractor and City agree that a
reasonable amount of damages for late Substantial Completion is $2,500 per day and
Contractor agrees to pay damages in that amount if the work is not completed by the
Substantial Time of Completion. Contractor and City agree that a reasonable amount of
damages for late Final Completion is $1,000 per day and Contractor agrees to pay damages in
that amount if the work is not completed by the Final Time of Completion.
C. Time of Completion: Work shall be substantially completed on or before May 1, 2011.
Substantially completed, as defined generally within paragraph 14.8 of the General Conditions
and more specifically herein, shall be when the Contractor and City agree that the entire Work
is operational following successful testing and start-up and the City is able to take possession
of and have full operational use of the facilities. The Work shall be completed and ready for
final payment in accordance with paragraph 14.13 of the General Conditions on or before
October 1,2011.
D. Final Payment:The Contractor shall notify the City in writing when the Contractor considers
the project complete,and the City shall,within 15 days after receiving the written notice,either
accept the work or notify the Contractor of work yet to be performed on the contract.
Upon acceptance by the City, the entire balance due to the Contractor, including the retained
percentage, shall be paid to the Contractor, by the City within 30 days after the date of said
final acceptance.
The City shall pay to the Contractor interest at the rate of one and one-half percent per month
on the final payment due the Contractor, to commence 30 days after the work under the
Contract has been completed and accepted and to run until the date when final payment is
tendered to the Contractor. If the City does not,within 15 days after receiving written notice
of completion, notify the Contractor of work yet to be performed to fulfill contractual
obligations, the interest provided by this subsection shall commence to run 30 days after the
end of the 15-day period.
As a further conditions of final acceptance, the City may require the Contractor to submit
evidence, satisfactory to the City's Representative, that all payrolls, material bills, and other
indebtedness connected with the project have been paid, except that in case of any disputed
indebtedness or liens,the Contractor may submit in lieu of evidence of payment, a surety bond
satisfactory to the City guaranteeing payment of all such disputed amounts when adjudicated in
cases where such payment has not already been guaranteed by surety bond.
9. Buy American
The Contractor acknowledges to and for the benefit of the City of Tigard and the State of Oregon that
it understands the goods and services under this Agreement are being funded with monies made
available by the federal American Recovery and Reinvestment Act of 2009 (ARRA) (or are being made
available for a project being funded with monies made available by the federal ARRA) and such law
contains provisions commonly known as "Buy American" that require all of the iron, steel, and
manufactured goods used in the project be produced in the United States ("Buy American
Requirements") including iron, steel, and manufactured goods provided by the Contractor pursuant to
this Agreement. The Contractor hereby represents and warrants to and for the benefit of the City and
the State of Oregon that:
A. The Contractor has reviewed and understands the Buy American Requirements,
B. All of the iron, steel, and manufactured goods used in the project will be and/or have been
produced in the United States in a manner that complies with the Buy American
Requirements,unless a waiver of the requirements is approved,and
C. The Contractor will provide any further verified information, certification or assurance of
compliance with this condition, or documentation of a waiver and information necessary to
support a waiver of the Buy American Requirements, as may be requested by the City or the
State of Oregon
Notwithstanding any other provision of this Agreement, any failure to comply with this condition by
the Contractor shall permit the City or the State of Oregon to recover as damages against the
Contractor any loss, expense, or cost (including without limitation attorney's fees)incurred by the City
or State of Oregon resulting from any such failure (including without limitation any impairment or loss
of funding,whether in whole or in part, from the State or the Department of Energy, as the case may
be, or any damages or indemnification owed to the State of Oregon by the City). While the
Contractor has no direct contractual privity with the State of Oregon, as a lender to the City for the
funding of its project, the City and the Contractor agree that the State is a third-party beneficiary and
neither this condition (nor any other provision of this Agreement necessary to give this condition
force or effect) shall be amended or waived without the prior written consent of the State.
10. Status Of Contractor As Indeuendent Contractor
Contractor certifies that:
A. Contractor acknowledges that for all purposes related to this Agreement, Contractor is and
shall be deemed to be an independent Contractor as defined by ORS 670.600 and not an
employee of City, shall not be entitled to benefits of any kind to which an employee of City is
entitled and shall be solely responsible for all payments and taxes required by law.
Furthermore, in the event that Contractor is found by a court of law or any administrative
agency to be an employee of City for any purpose, City shall be entitled to offset
compensation due, or to demand repayment of any amounts paid to Contractor under the
terms of this Agreement, to the full extent of any benefits or other remuneration Contractor
receives (from City or third party) as a result of said finding and to the full extent of any
payments that City is required to make (to Contractor or to a third party) as a result of said
finding.
B. The undersigned Contractor hereby represents that no employee of the City, or any
partnership or corporation in which a City employee has an interest, has or will receive any
remuneration of any description from Contractor, either directly or indirectly, in connection
with the letting or performance of this Agreement,except as specifically declared in writing.
C. If this payment is to be charged against Federal funds, Contractor certifies that he or she is not
currently employed by the Federal Government and the amount charged does not exceed his
or her normal charge for the type of service provided.
D. Contractor and its employees,if any, are not active members of the Oregon Public Employees
Retirement System and are not employed for a total of 600 hours or more in the calendar year
by any public employer participating in the Retirement System.
E. Contractor certifies that it currently has a City business license or will obtain one prior to
delivering services under this Agreement.
F. Contractor is not an officer, employee, or agent of the City as those terms are used in ORS
30.265.
11. Subcontracts -Assignment&Delegation
Contractor shall submit a list of Subcontractors for approval by the City, and Contractor shall be fully
responsible for the acts or omissions of any Subcontractors and of all persons employed by them, and
neither the approval by City of any Subcontractor not anything contained herein shall be deemed to
create any contractual relation between the Subcontractor and City.
This agreement, and all of the covenants and conditions hereof, shall inure to the benefit of and be
binding upon the City and the Contractor respectively and their legal representatives. Contractor shall
not assign any rights not delegate any duties incurred by this contract, or any part hereof without the
written consent of City,and any assignment or delegation in violation hereof shall be void.
Effective January 1,2006,Oregon law requires that workers on projects funded in whole or in part with
federal funds that require federal (Davis Bacon) prevailing wage rates will be paid the higher of either
the federal Davis Bacon rates or Oregon prevailing wage rates (also called "PWIU). In addition, the
project is also subject to compliance with all Bureau of Labor and Industries (BOLI) requirements. See
ORS 279c.800 at http:www.lcg.state.or.us/ors/279c.htrnl.
12. Non-Discrimination&Disadvantaged Business Enterprises
The Contractor shall not discriminate on the basis of race, color, national origin or sex in the
performance of the contract. Contractor shall ensure that a good faith implementation of the six good
faith efforts for procurement from all types of Disadvantaged business Enterprises is in place prior to
any work under this contract Documentation demonstrating that these six good faith efforts have
been taken must be included and maintained in a monthly report to the City for the project's files. The
six good-faith efforts in soliciting subcontractors shall be as follows:
A. Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable
through outreach and recruitment activities.
B. Make information on forthcoming opportunities available to DBEs and arrange time frames
for contracts and establish delivery schedules, where the requirements permit, in a way that
encourages and facilitates participation by DBEs in the competitive process. This includes,
whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar
days before the bid or proposal closing date.
C. Consider in the contracting process whether firms competing for large contracts could
subcontract with DBEs. This may include dividing total requirements, when economically
feasible, into smaller tasks or quantities to permit maximum participation by DBEs in the
competitive process.
D. Encourage contracting with a consortium of DBEs when a contract is too large for one of
these firms to handle individually.
E. Utilize the services of the Small Business Administration (SBA) and the Minority Business
Development Agency of the Department of Commerce.
F. Require the sub-contractors to take these six good-faith efforts in subcontracting with
Disadvantaged Business Enterprises for any secondary subcontract that they let.
13. Contractor-Payment of Benefits -Hours of Work
A. The Contractor shall:
1) Make payment promptly, as due, to all persons supplying to such Contractor labor or
material for the prosecution of the work provided for in this contract;
2) Pay all contributions or amounts due the under the Industrial Accident Fund form the
Contractor or subcontractor incurred in the performance of this Agreement;
3) Pay to the Department of Revenue all sums withheld from employees pursuant to
ORS 316.167.
4) Not permit any lien or claim to be filed or prosecuted against the City of Tigard, on
account of any labor or material furnished;
B. The Contractor or the Contractor's Surety and every Subcontractor or the Subcontractor's
Surety shall file certified statements with the City in writing in form prescribed by the
Commissioner of the Bureau of Labor and Industries, certifying the hourly rate of wage paid
each worker which the Contractor or the Subcontractor has employed upon such public work,
and further certifying that no worker employed upon such public work has been paid less than
the prevailing rate of wage,which certificate and statement shall be verified by the oath of the
Contractor or the Contractor's Surety or Subcontractor or the Subcontractor's Surety that the
Contractor or Subcontractor has read such statement and certificate and knows the contents
thereof and that the same is true to the Contractor's or Subcontractor's knowledge.
1) The certified statements shall set out accurately and completely the payroll records for
the prior week, including the same and address of each worker, the worker's correct
classification, rate of pay, daily and weekly number of hours worked, deductions made
and actual wages paid.
2) Each certified statement required herein shall be delivered or mailed by the Contractor
or Subcontractor to the City. A true copy of the certified statements shall also be filed
at the same time with the Commissioner of the Bureau of Labor and Industries.
Certified statements shall be submitted as follows:
a) For any project 90 days or less from the date of the award of the contract to
the date of completion of work under the contract, the statements shall be
submitted once before the first payment is made, and once before final
payment is made of any sum due on account of the contract.
b) For any project exceeding 90 days from the date of the award of the contract
to the date of completion of work under contract, the statements shall be
submitted once before the first payment is made, at 90 day intervals thereafter,
and once before final payment is made of any sum due on account of the
contract.
c) Each Contractor or Subcontractor shall preserve certified statements for a
period of three years from the date of completion of the contract.
C. The Contractor agrees that if the Contractor fails,neglects or refuses to make prompt payment
of any claim for labor or services furnished to the Contractor or a Subcontractor by any
person in connection with this contract as such claim becomes due, the proper office of the
City of Tigard may pay such claim to the person furnishing the labor or services and charge the
amount of the payment against funds due or to become due to the Contractor by reason of
such contract. Payment of a claim in this manner shall not relieve the Contractor or the
Contractors Surety from obligation with respect to any unpaid claims.
D. Contractor agrees that no person shall be employed for more than ten (10) hours in any one
day, or 40 hours in any one week, except in cases of necessity or emergency or when the City
deems it in the best interest of the public or policy absolutely requires it, in which event, the
person so employed for excessive hours shall receive at least time and a half pay for the
following:
1) For all overtime in excess of eight hours in any one day or 40 hours in any one week
when the work week is five consecutive days,Monday through Friday;or
2) For all overtime in excess of 10 hours in any one day or 40 hours in any one week when
the work week is four consecutive days,Monday through Friday;and
3) For all work performed on Saturday and on the legal holidays specified in ORS
279C.540.
E. No City employee shall be required to work overtime or on a Saturday, Sunday or holiday in
the fulfillment of this contract except where the Contractor agrees to reimburse the City in the
amount of money paid the employee for such work as determined by state law, the City's
personnel rules or union agreement. The Contractor shall require every Subcontractor to
comply with this requirement.
F. If Contractor or any first-tier subcontractor fails to pay a person furnishing labor or material
within 30 days after receipt of payment form the City or from the Contractor to a
subcontractor, the Contractor or first-tier subcontractor shall owe the person the amount due
plus interest commending at the end of the 10 day period that the payment is due under ORS
279C.580, unless payment is subject to a good-faith dispute. The interest rate shall be as
specified in ORS 279C.505(2). If the Contractor or any subcontractor fails,neglects,or refuses
to pay a person furnishing labor or material, the person may file a complaint with the
Construction Contractors Board, unless the payment is subject to a good faith dispute as
defined in ORS 279C.580.
G. Contractor shall include a clause in each contact with a subcontractor a requirement that the
contractor pay the subcontractor for satisfactory performance within 10 days of receipt of
payment from the City for the work. Contractor shall include in contracts with subcontractors
an interest provision for such payments in compliance with ORS 279C.580. Contractor shall
include a clause in each contract with a subcontractor requiring the subcontractor to meet the
same payment and interest standards as required by ORS 279C.580 (4).
14. Drug Testing Program
ORS 279C.505 requires that all public improvement contracts contain a provision requiring contractors
to demonstrate that an employee drug-testing program is in place. The Contractor demonstrates that a
drug-testing program is in place by signing of the contact. The drug testing program will apply to all
employees and will be maintained for the duration of the Contract awarded. Failure to maintain a
program shall constitute a material breach of contract.
15. Contractor's Employee Medical Payments
Contractor agrees to pay promptly as due, to any person, co-partnership, association or corporation
furnishing medical, surgical, and hospital care or other needed care and attention incident to sickness
or injury to the Contractor's employees,all sums which the Contractor agreed to pay for such services
and all money and sums which the Contractor collected or deducted from employee wages pursuant
to any law, contract or agreement for providing or paying for such service.
16. Early Termination
A. This agreement may be terminated without cause prior to the expiration of the agreed upon
term by mutual written consent of the parties and for the following reasons:
1) If work under the Contract is suspended by an order of a public agency for any reason
considered to be in the public interest other than by a labor dispute or by reason of
any third party judicial proceeding relating to the work other than a suit or action filed
in regard to a labor dispute; or
2) If the circumstances or conditions are such that it is impracticable within a reasonable
time to proceed with a substantial portion of the Contract.
B. Payment of Contractor shall be as provided by ORS 279C.660 and shall be prorated to and
include the day of termination and shall be in full satisfaction of all claims by Contractor
against City under this Agreement.
C. Termination under any provision of this paragraph shall not affect any right, obligation, or
liability of Contractor or City which accrued prior to such termination.
17. Cancellation with Cause
A. City may terminate this Agreement effective upon delivery of written notice to Contractor, or
at such later date as may be established by City,under any of the following conditions:
1) If City funding from federal, state, local, or other sources is not obtained and
continued at levels sufficient to allow for the purchase of the indicated quantity of
services. This Agreement may be modified to accommodate a reduction in funds,
2) If Federal or State regulations or guidelines are modified, changed, or interpreted in
such a way that the services are no longer allowable or appropriate for purchase under
this Agreement,
3) If any license or certificate required by law or regulation to be held by Contractor, its
subcontractors, agents, and employees to provide the services required by this
Agreement is for any reason denied,revoked, or not renewed, or
4) If Contractor becomes insolvent, if voluntary or involuntary petition in bankruptcy is
filed by or against Contractor, if a receiver or trustee is appointed for Contractor, or if
there is an assignment for the benefit of creditors of Contractor.
Any such termination of this agreement under paragraph (a) shall be without prejudice to any
obligations or liabilities of either party already accrued prior to such termination.
B. City, by written notice of default (including breach of contract) to Contractor, may terminate
the whole or any part of this Agreement:
1) If Contractor fails to provide services called for by this agreement within the time
specified herein or any extension thereof, or
2) If Contractor fails to perform any of the other provisions of this Agreement, or so fails
to pursue the work as to endanger performance of this agreement in accordance with
its terms, and after receipt of written notice from City, fails to correct such failures
within ten (10) days or such other period as City may authorize.
The rights and remedies of City provided in the above clause related to defaults (including
breach of contract) by Contractor shall not be exclusive and are in addition to any other rights
and remedies provided by law or under this Agreement.
If City terminates this Agreement under paragraph (b),Contractor shall be entitled to receive as
full payment for all services satisfactorily rendered and expenses incurred, an amount which
bears the same ratio to the total fees specified in this Agreement as the services satisfactorily
rendered by Contractor bear to the total services otherwise required to be performed for such
total fee; provided, that there shall be deducted from such amount the amount of damages, if
any,sustained by City due to breach of contract by Contractor. Damages for breach of contract
shall be those allowed by Oregon law, reasonable and necessary attorney fees, and other costs
of litigation at trial and upon appeal.3
18. Access to Records
City shall have access to such book, documents, papers and records of Contractor as are directly
pertinent to this Agreement for the purpose of making audit,examination,excerpts,and transcripts.
19. Work is Property of Q
All work performed by Contractor under this Agreement shall be the property of the City.
20. Adherence to Law
A. Contractor shall adhere to all applicable laws governing its relationship with its employees,
including but not limited to laws, rules, regulations, and policies concerning workers'
compensation,and minimum and prevailing wage requirements.
B. To the extent applicable, the Contractor represents that it will comply with Executive Order
11246 as amended, Executive Order 11141, Section 503 of the Vocational Rehabilitation Act
of 1973 as amended and the Age Discrimination Act of 1975, and all rules and regulations
issued pursuant to the Acts.
C. As provided by ORS 279C.525, all applicable provisions of federal, state or local statutes,
ordinances and regulations dealing with the prevention of environmental pollution and the
preservation of natural resources that affect the work under this contract are by reference
incorporated herein to the same force and affect as if set forth herein in full. If the Contractor
must undertake additional work due to the enactment of new or the amendment of existing
statutes, ordinances or regulations occurring after the submission of the successful bid, the
City shall issue a Change Order setting forth the additional work that must be undertaken.
The Change Order shall not invalidate the Contract and there shall be, in addition to a
reasonable extension,if necessary, of the contract time,a reasonable adjustment in the contract
Price,if necessary, to compensate the Contractor for all costs and expenses incurred,including
overhead and profits,as a result of the delay or additional work.
21. Changes
City may at any time, and without notice, issue a written Change Order requiring additional work
within the general scope of this Contract, or any amendment thereto, or directing the omission of or
variation in work. If such Change Order results in a material change in the amount or character of the
work, an equitable adjustment in the Contract price and other provisions of this Contract as may be
affected may be made. Any claim by Contractor for and adjustment under this section shall be
asserted in writing within thirty (30) days from the date of receipt by Contractor of the notification of
change or the claim will not be allowed. Whether made pursuant to this section or by mutual
agreement, no change shall be binding upon City until a Change Order is executed by the Authorized
Representative of City,which expressly states that it constitutes a Change Order to this Contract. The
issuance of information, advice, approvals, or instructions by City's Representative or other City
personnel shall not constitute an authorized change pursuant to this section. Nothing contained in
this section shall excuse the Contractor from proceeding with the prosecution of the work in
accordance with the Contract,as changed.
22. Force Majeure
Neither City nor Contractor shall be considered in default because of any delays in completion of
responsibilities hereunder due to causes beyond the control and without fault or negligence on the part
of the parry so disenabled, including, but not restricted to, an act of God or of a public enemy,
volcano, earthquake, fire, flood, epidemic, quarantine, restriction, area-wide strike, freight embargo,
unusually severe weather or delay of Subcontractor or suppliers due to such cause; provided that the
party so disenabled shall within ten (10) days from the beginning of such delay, notify the other party
in writing of the causes of delay and its probable extent. Such notification shall not be the basis for a
claim for additional compensation. Each party shall, however, make all reasonable efforts to remove
or eliminate such a cause of delay or default and shall, upon cessation of the cause, diligently pursue
performance of its obligation under Contract.
23. Non-waiver
The failure of the City to insist upon or enforce strict performance by Contractor of any of the terms
of this contract or to exercise any rights hereunder shall not be construed as a waiver or
relinquishment to any extent of its right to assert or rely upon such terms or rights on any future
occasion.
24. Warranties
All work shall be guaranteed by the Contractor for a period of one year after the date of final
acceptance of the work by the Owner. Contractor warrants that all practices and procedures,
workmanship, and materials shall be the best available unless otherwise specified in the profession.
Neither acceptance of the work nor payment therefore shall relieve Contractor from liability under
warranties contained in or implied by this contract.
25. Attorney's Fees
In case suit or action is instituted to enforce the provisions of this contract, the parties agree that the
losing party shall pay such sum as the Court may adjudge reasonable attorney's fees and court costs
including attorney's fees and court costs on appeal.
26. Governing Law
The provisions of this Agreement shall be construed in accordance with the provisions of the laws of
the State of Oregon. Any action or suits involving any questions arising under this Agreement must be
brought in the appropriate court of the State of Oregon.
27. Conflict Between Terms
It is further expressly agreed by and between the parties hereto that should there be any conflict
between the terms of this instrument and the proposal of the Contractor,this instrument shall control
and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting
herewith.
28. Indemnification
Contractor warrants that all its work will be performed in accordance with generally accepted
professional practices and standards as well as the requirements of applicable federal, state and local
laws,it being understood that acceptance of a contractor's work by City shall not operate as a waiver or
release.
Contractor agrees to indemnify and defend the City,its officers, agents and employees and hold them
harmless from any and all liability, causes of action, claims,losses, damages, judgments or other costs
or expenses including attorney's fees and witness costs and (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 which in any way
arise from, during or in connection with the performance of the work described in this contract,
except liability arising out of the negligence of the City and its employees. If any aspect of this
indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder of this indemnification.
29. Insurance
Contractor and its subcontractors shall maintain insurance acceptable to City in full force and effect
throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly
out of Contractor's activities or work hereunder, including the operations of its subcontractors of any
tier. Such insurance shall include provisions that such insurance is primary insurance with respect to the
interests of City and that any other insurance maintained by City is excess and not contributory
insurance with the insurance required hereunder.
The policy or policies of insurance maintained by the Contractor and its subcontractor shall provide at
least the following limits and coverage's:
A. Commercial General Liability Insurance: Contractor shall obtain, at contractor's expense, and
keep in effect during the term of this contract, Comprehensive General Liability Insurance
covering Bodily Injury and Property Damage on an "occurrence" form (1996 ISO or
equivalent). This coverage shall include Contractual Liability insurance for the indemnity
provided under this contract. The following insurance will be carried:
Coverage Limit
General Aggregate $2,000,000
Products-Completed Operations Aggregate $1,000,000
Personal&Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage (Any one fire) $50,000
Medical Expense (Any one person) $5,000
Aggregate limit are to apply on a per project basis.
B. Commercial Automobile Insurance: Contractor shall also obtain, at contractor's expense, and
keep in effect during the term of the contract, "Symbol 1" Commercial Automobile Liability
coverage including coverage for all owned, hired, and non-owned vehicles. The General
Aggregate shall not be less than$2,000,000.
C. Workers' Compensation Insurance: The Contractor, its subcontractors, if any, and all
employers providing work,labor or materials under this Contract are subject employers under
the Oregon Workers' Compensation Law and shall comply with ORS 656.017,which requires
them to provide workers' compensation coverage that satisfies Oregon law for all their subject
workers. Out-of-state employers must provide Oregon workers' compensation coverage for
their workers who work at a single location within Oregon for more than 30 days in a calendar
year. Contractors who perform work without the assistance or labor of any employee need
not to obtain such coverage. This shall include Employer's Liability Insurance with coverage
limits of not less than$500,000 each accident.
D. Additional Insured Provision: The City of Tigard, Oregon, its officers, directors and
employees, and Murray, Smith & Associates, Inc. shall be added as additional insured's with
respect to this contract. All Liability Insurance policies will be endorsed to show this
additional coverage.
E. Notice of Cancellation: There shall be no cancellation, material change, exhaustion of
aggregate limits or intent not to renew insurance coverage without 30 days written notice to
the City. Any failure to comply with this provision will not affect the insurance coverage
provided to the City. The 30 days notice of cancellation provision shall be physically endorsed
on to the policy.
F. Insurance Carrier Rating: Coverage provided by the Contractor must be underwritten by an
insurance company deemed acceptable by the City. Insurance is to be placed with insurers
with an A.M. Best rating of no less than A-VII for all coverage's other than Workers' Comp.
The City reserves the right to reject all or any insurance carrier(s) with an unacceptable
financial rating.
G. Certificates of Insurance: As evidence of the insurance coverage required by the contract, the
contractor shall furnish a Certificate of Insurance to the City. No contract shall be effected
until the required certificates have been received and approved by the City. The certificate will
specify and document all provisions within this contract. A renewal certificate will be sent to
the above address 10 days prior to coverage expiration.
H. Independent Contractor Status: The service or services to be rendered under this contract are
those of an independent contractor. Contractor is not an officer, employee or agent of the
City as those terms are used in ORS 30.265.
I. Primary Coverage Clarification: All parties to this contract hereby agree that the contractor's
coverage will be primary in the event of a loss.
J. Cross-Liability Clause:A cross-liability clause or separation of insured's clause will be included
in all general liability,professional liability,pollution and errors and omissions policies required
by this contract.
K. Property: Property damage liability will provide explosion, collapse, and underground
coverage's.
1) Contractor shall purchase and maintain property insurance upon the Work at the site
in an amount equal to the full amount of the contract, subject to such deductible
amounts as may be required by Laws and Regulations. This insurance shall:
a) Include the interests of the City, Contractor, Subcontractors, Engineer,
Engineer's Consultants, and any other persons or entities identified in the
Supplementary Conditions, each of whom is deemed to have an insurable
interest and shall be listed as an insured or additional insured;
b) Be written on a Builder's Risk, "all risk", or open peril or special causes of loss
policy form that shall at least include insurance for physical loss and damage to
the Work,temporary buildings, false work,and Work in transit and shall insure
against at least the following perils: fire, lightning, extended coverage, theft,
vandalism and malicious mischief, earthquake, flood, collapse, debris removal,
demolition occasioned by enforcement of Laws and Regulations, water
damage,and such other perils as may be specifically required;
c) Include expenses incurred in the repair or replacement of an insured property
(including but not limited to fees and charges of engineers and architects);
d) Cover materials and equipment in transit for incorporation in the Work or
stored at the site or at another location that was agreed to in writing by City
prior to being incorporated in the Work, provided that such materials and
equipment have been included in an Application for Payment recommended
by Engineer;and
e) Be maintained in effect until final payment is made unless otherwise agreed to
in writing by City, Contractor, and Engineer with thirty days written notice to
each other additional insured to whom a certificate of insurance has been
issued.
Contractor's insurance policy shall contain provisions that such policies shall not be canceled or their
limits of liability reduced without thirty (30) days prior notice to City. A copy of each insurance policy,
certified as a true copy by an authorized representative of the issuing insurance company, or at the
discretion of City, in lieu thereof, a certificate in form satisfactory to City certifying to the issuance of
such insurance shall be forwarded to:
City of Tigard
Attn: Joe Barrett,Senior Management Analyst
13125 SW Hall Blvd
Tigard, Oregon 97223
Such policies or certificates must be delivered prior to commencement of the work. Ten days
cancellation notice shall be provided City by certified mail to the name at the address listed above in
event of cancellation or non-renewal of the insurance. The procuring of such required insurance shall
not be construed to limit contractor's liability hereunder. Notwithstanding said insurance, Contractor
shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect
connected with this contract.
30. Method and Place of Giving Notice, Submitting Bills and Malcing Payments
All notices, bills and payments shall be made in writing and may be given by personal delivery or by
mail. Notices,bills and payments sent by mail should be addressed as follows:
CITY OF TIGARD MCDONALD&WETLE,INC.
Attn: Nicklas Nissan,Facility Svcs. Super. Atm: Bob Bolt
Address: 13125 SW Hall Blvd Address: 2020 NE 194th
Tigard,Oregon 97223 Portland,Oregon 97230
Phone: (503)718-2605 Phone: (503) 667-0175
Fax: (503) 684-7297 Fax: (503) 665-0141
Email Address: ngn(a ggrd-or.gov Email Address: (insert address)
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 written notice pursuant to this paragraph.
31. Hazardous Materials
Contractor shall supply City with a list of any and all hazardous substances used in performance of this
Agreement. That list shall identify the location of storage and use of all such hazardous substances and
identify the amounts stored and used at each location. Contractor shall provide City with material
safety data sheets for all hazardous substances brought onto City property, created on City property or
delivered to City pursuant to this Agreement. For the purpose of this section, "hazardous substance"
means hazardous substance as defined by ORS 453.307(4). Contractor shall complete the State Fire
Marshall's hazardous substance survey as required by ORS 453.317 and shall assist City to complete any
such survey that it may be required to complete because of substances used in the performance of this
Agreement.
32. Hazardous Waste
If, as a result of performance of this Agreement, Contractor generates any hazardous wastes,
Contractor shall be responsible for disposal of any such hazardous wastes in compliance with all
applicable federal and state requirements. Contractors shall provide City with documentation,
including all required manifests, demonstrating proper transportation and disposal of any such
hazardous wastes. Contractor shall defend, indemnify, and hold harmless City for any disposal or
storage of hazardous wastes generated pursuant to this Contract and any releases or discharges of
hazardous materials.
33. Severability
In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any
court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect
and shall in no way be affected or invalidated thereby.
34. Demolition—Salvage and Recycling
As required by ORS 279C.510, Contractor shall salvage or recycle any construction and demolition
debris if feasible and cost-effective.
35. Complete Agreement
This Agreement and attached exhibits constitutes the entire 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 specific instances and for the specific purpose given. There are no understandings,
agreements, or representations, oral or written, not specified herein regarding this Agreement.
Contractor, by the signature of its authorized representative,hereby acknowledges that he has read this
Agreement,understands it and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its duly authorized
undersigned officer and Architect has executed this Agreement on the date hereinabove first written.
Approved by Tigard's Local Contract Review Board: August 17,2010
CITY O TI ARD MCDONALD&WETLE,INC.
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