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Endres Northwest Inc ~ C200081 i CITY OF TIGARD.OREGON-CONTRACT SUMMARY FORM (THIS FORM MUSTACCOMPANYEVERY CONTRACT) Contract Title: Windmill Park Structure Repair Number: ( ( 0/0 Contractor: Endres Northwest Incorporated Contract Total: 30,000 Contract Overview: Repair work on the windmill located within Windmill Park. Initial Risk Level: ❑ Extreme ❑ High ❑ Moderate ❑ Low Risk Reduction Steps: Risk Comments: Risk Signature: Contract Manager: Martin McKnight Ext: 2583 Department: PW Parks Type: ❑ Personal Svc ❑ Professional Svc ® Public Imp ❑ General Svc ❑ Coop Purchase ❑ Other: Start Date: End Date: 06/30/2020 Quotes/Bids/Proposal: FIRM[ AmOUNT/SCORE Endres NW $30.000 Jacobs Consturction To Busy Randy Wheeeler.LLC $3U82 Account String: Fund-Division-Account Work Order—Activit;Tvue Amount FY 191920 420-8000-56005 92053-140 $30,000 FY FY FY FY Approvals - LCRB Date: Department Comments: Department Signature: Purchasing Comments: Purchasing Signature: City Manager Comments: City Manager Signature: After securing all required approvals, forward original copy to the Contracting and Purchasing Office along with a completed Contract Checklist. Contract 4(1�o 0V CITY OF TIGARD PUBLIC IMPROVEMENT CONTRACT—PWR COVERED PROJECT WINDMILL PAR%STRUCTURE REPAIR THIS CONTRACT,made and entered into this 22nd day of January,2020,by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called "City" and Endres Northwest Incorporated (ENI) 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 Contract Documents;and THEREFORE, in consideration of the promises and covenants contained herein, the parties hereby agree as follows: TERMSOFAGREEMENT 1. Services Contractor agrees to provide services re4ated to repair work on the windmill located in Windmill Park in Tigard as detailed in this Agreement including all Exhibits by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION This Agreement is effective upon notice to proceed issued by the City and shall be substantially completed by June 30,2020. 3. Prevailing Wage The provisions of ORS Chapters 279A and 279C and all other Oregon and Federal provisions pertaining to minimum salaries and wages are incorporated herein by reference as if fully set forth. The Contractor agrees that the workmen in each trade or occupation required for the work to be done pursuant to the contract, employed in the performance of the Contract, either by the Contractor or 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 rate of wage specified by the Commissioner of the Bureau of Labor,and attached hereto. If this project is subject to both Federa4 Davis-Bacon Act requirement and State of Oregon Prevailing Wage Rate requirements, the Contractor must ensure that workers will be paid the higher of the applicable federal or state rate. If the Contractor fails to pay for labor or services,the City may pay for those labor and services and withhold these amounts from payment s that are due the Contractor in accordance with ORS 279C.515. 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. Contractor shall also require in every subcontract to this Agreement that the subcontractor file a public works bond with the Construction Contractors Board in the amount of$30,000 prior to starting work on this project unless otherwise exempt. 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 to the Bureau of Labor and Industries. The fee shall be paid on or before the first progress payment or sixty (60) days from the date work first began,whichever comes first. 4. Contract Documents The Contractor is hereby bound to comply with all requirements of the Contract 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. Cm's Representative For purposes hereof, the City's authorized representative will be Martin McKnight, Parks Supervisor, who can be reached by mail at 13125 SW Hall Blvd.,Tigard, Oregon 97223;by telephone at (503) 718- 2598;or via email at martin&igard-or.ggv. 6. Contractor's Representative For purpose hereof, the Contractor's authorized representative will be Randell Endres, who can be reached by phone at(503) 557-1700. 7. Contractor Identification Contractor shall furnish to the City the Contractor's employer identification number, as designated by the Internal Revenue Service,or Contractor's social security number,as City deems applicable. 8. Compensation A. Progress Payments: City agrees to pay Contractor an amount not to exceed Thirty Thousand and No/100 Dollars ($30,000.00)for performance of those services provided hereunder. Payments shall be based upon the Bid Schedule included in Exhibit A. Payment shall be based upon the following applicable terms: The City will pay only for measures)Pay Item quantities incorporated into the Work or performed according to the terms of the Agreement. The Contractor understands and agrees that Pay Item quantities listed in the Schedule of Items do not govern payment. Payment constitutes full compensation to the Contractor for furnishing all materials, equipment, labor,and incidentals necessary to complete the Work;and for risk,loss,damage,and expense arising from the nature or prosecution of the Work or from the action of the elements, subject to the provisions of 00170.80. The Contractor shall include the costs of bonds and insurance for the Project in the unit price for each Pay Item of Work to be performed. When the specifications state that the unit price for a Pay Item is compensation for certain materials or work essential or incidental to the Pay Item,the same materials or work will not be measured or paid under any other Pay Item. Contractor shall prepare and submit each month to the Project Manager 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 state date, together with a request for payment duly verified by the Contractor's Representative and copies of certified payroll statements. 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 2 1 P a g e 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 during the current fiscal year. Funding in future fiscal years shall be contingent upon budgetary approval by the Tigard City Council. Contractor shall include proof of payment to any and all subcontractors and suppliers with each statement submitted to the City. The City shall retain the right to withhold payments if required proof of payment to subcontractor and suppliers is not included with a statement. 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 statements with the City. B. Timing of Payments: Progress payments, less a five percent retainage as authorized by ORS 279C.555, shall be made to the Contractor within thirty (30) days of the City's receipt of the statement of services. The Contractor agrees that the "Time of Completion" is defined in the Bid Proposal,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 amount of those damages are difficult to calculate. Contractor and City agree that a reasonable amount of damages for late completion is $500.00 per day and Contractor agrees to pay damages in that amount if the work is not completed by the Time of Completion. C. 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 Contractot 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. Status Of Contractor As Independent 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 3 1 P a g e 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. 10. Indemnification 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 sole 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. 11. Insurance Contractor 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 shall provide at least the following limits and coverages: 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 (CG 2010 1185 or equivalent). This 41 Page 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 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 Combined Single Limit per occurrence 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 $1,000,000 each accident. D. Additional Insured Provision: The City of Tigard, Oregon,its officers, directors,and employees shall be added as additional insureds with respect to this contract. All Liability Insurance policies will be endorsed to show this additional coverage. E. Insurance Carrier Rating: Coverage provided by the Contractor must be underwritten by an insurance company deemed acceptable by the City. The insurance carrier shall have a minimum of an AM Best Rating "A" with a financial strength of VII or better. The City reserves the right to reject all or any insurance carrier(s)with an unacceptable financial rating. F. Certificates of Insurance: 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 all such insurance provisions of this Contract shall be forwarded to: City of Tigard Attn: Office of Contracts and Purchasing 13125 SW Hall Blvd Tigard,Oregon 97223 Such policies or certificates must be delivered prior to commencement of the work and no Contract shall be effected until the required certificates have been received and approved by the City. Ten days cancellation notice shall be provided City by certified mail to the name at the address listed above in event of cancellation or nqn-renewal of the insurance.A renewal certificate will be sent to the above address 10 days prior to coverage expiration. The procuring of such required insurance shall not be construed to limit Contractor's liability hereunder. Notwithstanding said insurance, 5 1 P a g e Contractor shall be obligated for the total amount of any damage,injury,or loss connected with this Contract. G. Primary Coverage Clarification: All parties to this contract hereby agree that the contractor's coverage will be primary in the event of a loss. H. Cross-Liability Clause: A cross-liability clause or separation of insureds clause will be included in all general liability,and pollution policies required by this Contract. 12. 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 nor 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. Any and all subcontracts issued by the contractor shall contain a provision that workers shall be paid not less that the PWR Law specified n*-iimum wage. 13. Contractor-Payment of Benefits - Uours 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 bled or prosecuted against the City of Tigard, on account of any labor or material famished; 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 name and address of each worker,the workers 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 6 1 P a g e time with the Commissioner of the Bureau of Labor and Industries. Certified statements shall be submitted as follows: a) 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 famishing 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. A 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. The Contractor agrees to provide a written schedule to all employees showing the number of hours per day and days per week the employee may be required to work. F. 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. G. 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 fust-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.515(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. H. 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). 7 1 P a g e 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 PgMents 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 as referenced in ORS 279C.530. 16. Early Termination A. This agreement maybe 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 ternrination. 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,stale,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. 81Page I 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 tendered 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. 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 City 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 Contr4ctor 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 wort 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 91Page I 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. Pursuant to ORS 279C.525(1),the following list identifies Governmental Agencies of which the City has knowledge that have enacted Environmental Laws which may affect the performance of the work: i FEDERAL AGENCIES ➢ Agriculture • Department of Forest Service • Soil Conservation Service ➢ Defense • Department of Arany Corps of Engineers Y Energy • Department of Federal Energy Regulatory Commission ➢ Environmental Protection Agency ➢ Department of Health and Human Services ➢ Housing and Urban Development • Department of Solar Energy Conservation Bank Y Interior,Department of • Bureau of Sports Fisheries and Wildlife • Bureau of Outdoor Recreation • Bureau of Land Management • Bureau of Mines • Bureau of Indian Affairs • Bureau of Reclamation • Geological Survey • Minerals Management 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 ➢ Columbia River Gorge Commission ➢ Consumer&Business Services,Department of Oregon Occupational Safety&Health ➢ Division Energy,Department of ➢ Environmental Quality,Department of ➢ Fish and Wildlife,Department of Forestry,Department of 101 Page ➢ Geology and Mineral Industries,Department of ➢ Human Resources,Department of ➢ Land Conservation and Development Commission Parks and Recreation,Department of ➢ Soil and Water Conservation Commission ➢ State Engineer ➢ State Land Board ➢ Water Resources Board LOCAL AGENCIES City Council ➢ County Court ➢ County Commissioners,Board of ➢ Port Districts ➢ Metropolitan Services Districts Y County Service Districts ➢ Sanitary Districts ➢ Water Districts ➢ Fire Protection Districts 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 party 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. 111Page 23. Nonwaiver 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. 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. 25. Choice of Law.Venue The provisions of this Agreement are governed by Oregon law. Venue will be the State of Oregon Circuit Court in Washington County or the US District Court for Oregon,Portland. 26. 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, th s instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 27. Method and Place of Giving Notice, Submitting Bills and Making 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 ENDREs NORTHWEST INCORPORATED(ENI) Attn: Martin McKnight,Parks Supervisor Attn: Randell Endres Address: 13125 SW Hall Blvd Address: 450 Main Street Tigard, Oregon 97223 Oregon City,Oregon 97045 Phone: (503) 718-2598 Phone: (503) 557-1700 Email: matfin@fLZard-or.gov ard-or.gov Email: randyendres@endresnw.com 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. 28. 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(5). 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. 29. 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 121 Page I I 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. 30. 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. 31. 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. 32. Reuresentations and Warranties Contractor represents and warrants to the City that: A. Contractor has the power and authority to enter into and perform this Agreement. B. This Agreement, when executed and delivered, is a valid and binding obligation of Contractor, enforceable in accordance with its terms. C. Contractor (to the best of Contractor's knowledge, after due inquiry), for a period of no fewer than six calendar years (or since the firm's inception if less than that) preceding the effective date of this Agreement, faithfully has complied with: 1) All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317,and 318; 2) Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor's property, operations, receipts, or income, or to Contractor's performance of or compensation for any work performed by Contractor; 3) Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods,services,or property,whether tangible or intangible,provided by Contractor;and 4) Any rules,regulations,charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions. D. Any intellectual property rights or such delivered to the City under this Agreement, and Contractor's services rendered in the performance of Contractor's obligations under this Agreement, shall be provided to the City free and clear of any and all restrictions on or conditions of use,transfer,modification,or assignment,and shall be free and clear of any and all liens,claims, mortgages,security interests,liabilities,charges, and encumbrances of any kind. 33. Compliance with Tax Laws A. Contractor must, throughout the duration of this Agreement and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of the State of Oregon. For the purposes of this Section,"tax laws"includes all the provisions described in subsection 25.C. 1) through 4) of this Agreement. B. Any violation of subsection A of this section shall constitute a material breach of this Agreement. Further, any violation of Contractor's warranty, in subsection 25.0 of this Agreement, that the 131 Page Contractor has complied with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of this state also shall constitute a material breach of this Agreement. Any violation shall entitle the City to termaiate this Agreement,to pursue and recover any and all damages that arise from the breach and the tem-iination of this Agreement, and to pursue any or all of the remedies available under this Agreement,at law,or in equity,including but not limited to: 1) Termination of this Agreement,in whole or in part; 2) Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor,in an amount equal to State's setoff right,without penalty; and 3) Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief The City shall be entitled to recover any and all damages suffered as the result of Contractor's breach of this Agreement, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing a replacement Contractor. These remedies are cumulative to the extent the remedies are not inconsistent,and the City may pursue any remedy or remedies singly,collectively, successively,or in any order whatsoever. 34. 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�y its terms and conditions. IN WITNESS WHEREOF,City has caused this Agreement to be executed by its duly authorized undersigned officer and Contractor has executed this Agreement on the date hereinabove fust written. CITY OF TIGARD ENDREs NORTHWEST INCORPORATED(ENI) Signature Signature ;C/0-"4- Printed C/0-" "Printed Name&Title Printed Name&Title a4/ 31/ U)z© Date Date 14 1 Page EXHIBIT A SCOPE AND BID SCHEDULE Under this Agreement,the Contractor shall perform the following services on the City's windmill located at Windmill Park: • Fill in Side Doors • Repair Broken Corner Boards at Rear of Building • Pressure Wash and Stain Shake Siding • Paint Upper Building • Paint Windmill Itself • Grease Windmill Itself • Replace Roof • 12'Ladder • Clean Building Interior This work shall exclude plans,permits,dry rot repair,and all other items and services not listed herein. 151 Page CORPORA Budget / Estimate D 450 Main Street ate Estimate# Oregon City, OR 97045 8f7/2 19 S19-059 Phone tt 503 5571700 Fax# 503 557 1819 Submitted to: Project Location: CITY OF TIGARD WINDIll PARK 13126 SW HALL BLVD. 12130 SW KATHERINE STREET TIGARD,OR 97223 TIGARD,OR 97223 Description Total Remodel per Justin James •Fill in Side Doors 30.000.00 -Fix Broken Corner Boards at Rear of Building •Pressure Wash and Slain Shake Siding •Paint Upper Building •Paint Windmill itself •Grease Windmill itself •Replace Roof • 12'l Ladder •Clean Building Interior Excludes:Plans,Permits,Dry Rot Repair.and All Other Items and Services Not Listed Above Respectfully submitted by:Randell C.Endres Oregon License 162776 Total $30,000.00