APP D Construction Contract rev 1.27.26.pdf

[INSERT PROJECT TITLE]

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 1 of 24

CITY OF NEWPORT, OREGON

CONSTRUCTION CONTRACT

(non-EJCDC, CSI, or AIA)

[INSERT PROJECT NAME]

THIS CONTRACT is between City of Newport, an Oregon municipal corporation (“City”), and [enter the legal name of the business], [if the business operates under an assumed name, enter dba and the assumed business name], [enter the legal structure of the business] (“Contractor”), each a “party,” and referred to collectively in this Contract as “the parties.”

TERMS OF AGREEMENT

IT IS HEREBY AGREED by and between the parties above-mentioned, in consideration of the mutual promises hereinafter stated, as follows:

1. Statement of Work (“Work”).

A. Contractor will furnish or perform [enter a brief description of the work] OR [if not described elsewhere, enter a detailed description of the work] in accordance with the requirements of this Contract.

B. The scope of Contractor’s Work is further described in Exhibit A, Scope of Work, attached hereto, and incorporated into this Contract as referenced here.

C. Contractor must perform the Work in a manner consistent with the Contract Documents.

2. Contract Documents.

A. This Contract. This Contract consists of this construction contract form and the exhibits listed in subsection 2.B below, which are incorporated into this Contract by this reference. There are no other contract documents, unless specifically referenced in this Contract.

B. Exhibits. This Contract includes the following incorporated exhibits:

• Exhibit A – Scope of Work

• Exhibit B – Bid/Fee Schedule

• Exhibit C – Drawings

• Exhibit D – Specifications

• Exhibit # – List any other applicable exhibits or delete this bullet

3. Order of Precedence. In the event of a conflict between the requirements of any documents listed in subsections 2.A and 2.B above, the conflict must be resolved in the following order of precedence: first, this contract form, then in order: Exhibit A, Exhibit C, Exhibit D, Exhibit B. [If other exhibits are included, enter the other exhibits in order of intended priority.]

4. Consideration; Payment; Retainage.

A. Consideration. Except as otherwise provided herein, the City shall pay Contractor on a [enter

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 2 of 24 flat fee basis] OR [enter unit price basis]. In consideration for Work, the City agrees to pay Contractor’s fees [enter in an amount in words] ($_____). Such fees shall include all expenses.

The City is not obligated to pay any amount greater than that stated here. Projects partially completed may be paid for in proportion to the degree of completion. Contractor is independently responsible for its obligations for federal, state, and local sales and income taxes, including the Oregon Corporate Activity Tax.

B. Payment; Retainage.

1) All payments will be made in accordance with the requirements of ORS 279C.550 through 279C.570.

2) Payment will be made periodically as the Work progresses, based on monthly progress invoices submitted by Contractor based on an approved schedule of values and percentage of completion. City Public Contracting Rule 137-049-0830(1).

3) A progress payment is not considered acceptance or approval of any work or waiver of any defects therein. City Public Contracting Rule 137-049-0830(2). ORS 279C.570(2).

4) The City will reserve retainage in the amount of 5 perfect (5%) from each progress payment. ORS 279C.570(7). ORS 701.420(1). Prior to approval and payment, City may require, and if required Contractor must provide, any information which City deems necessary to verify work has been performed properly in accordance with the Contract and the requirements of ORS chapter 279C.

5) If the Contractor has performed at least 50 percent (50%) of the Work and is progressing satisfactorily, upon the Contractor's submission of written application containing the surety's written approval, the City may, in its discretion, reduce or eliminate retainage on any remaining progress payments. The City shall respond in writing to all such applications within a reasonable time. When the Work is 97.5 percent (97.5%) completed, the City may, at its discretion and without application by the Contractor, reduce the retained amount to 100 percent (100%) of the value of the remaining unperformed Work. The City may at any time reinstate retainage. Retainage shall be included in the final payment of the Contract price. City Public Contracting Rule 137-049-0820(1). ORS 279C.570(7).

6) Late payment interest shall begin to accrue on payments due and owing on the earlier of 30 days after receipt of invoice or 15 days after the City approval of payment. The interest rate shall equal three times the discount rate on 90-day commercial paper in effect on the progress payment due date at the Federal Reserve Bank in the Federal Reserve district that includes Oregon, up to a maximum rate of 30 percent (30%). City Public Contracting Rule 137-049-0840(2). ORS 279C.570(2).

7) Final payment on the Contract price, including retainage, shall be due and owing no later than 30 days after Contract completion and acceptance of the Work. Late-payment interest on such final payment shall thereafter accrue at the rate of one and one-half percent (1.5%) per month until paid. City Public Contracting Rule 137-049-0840(3). ORS 279C.570().

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 3 of 24

8) In the event of a dispute as to compensation due a Contractor for Work performed, upon settlement or judgment in favor of the Contractor, interest on the amount of the settlement or judgment shall be added to, and not made part of, the settlement or judgment. Such interest, at the discount rate on 90-day commercial paper in effect at the Federal Reserve Bank in the Federal Reserve District that includes Oregon, shall accrue from the later of the progress payment due date, or thirty days after the Contractor submitted a claim for payment to the City in writing or otherwise in accordance with the Contract requirements. City Public Contracting Rule 137-049-0840(4).

C. Identification. Contractor shall provide its Employer Identification Number (EIN) to the City.

5. Effective Date. This Contract is effective [enter upon the signature of all parties] OR [enter the specific start date desired].

6. Initial Term. Unless extended or terminated earlier in accordance with this Contract, this Contract will terminate [enter on the specific date desired] OR [enter either within a period of ____ days] OR [enter within a period of ____years]. However, such expiration shall not extinguish or prejudice either party's right to enforce this Contract with respect to any breach or default in performance which has not been cured.

7. [Enter No renewals available.] OR [Enter Upon completion of the initial term, the City may elect to extend this Contract for up to ___ additional one-year terms by mutual written Contract of the parties.]

8. Modification. No modification or amendment to this Contract will bind either party unless in writing and signed by both parties.

9. Final Inspection.

A. Notification of Completion. Contractor must notify the City in writing when the Contractor considers the Work completed. The City shall inspect the project within 15 days of receipt of Contractor’s written notice of completion, the City must inspect the project and project records, and either accept or reject the Work in writing. A rejection must state the reasons for the rejection and list the work that must be done before the project can be accepted. If a rejection is issued, Contractor shall complete all work needed to be done and request another inspection. The process shall be continued until the City determines that the project is complete and accepted. City Public Contracting Rule 137-049-0850(1).

B. Acknowledgment of Acceptance. When the City finds that all Work required under this Contract has been completed satisfactorily, the City shall acknowledge acceptance of the Work in writing. City Public Contracting Rule 137-049-0850(2).

10. Prevailing Wages. Prevailing wages shall apply to public work projects only if the contract exceeds $50,000. Contractor [enter is] OR [enter is not] required to pay prevailing wages for the Work under this Contract. If Prevailing wages applies to this Contract, the following provisions apply:

A. Contractor shall pay workers in each trade or occupation the higher of the applicable State prevailing wage rate or the federal prevailing wage rate under the Davis-Bacon Act (40 U.S.C.

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 4 of 24

3141 et seq.). Contractor and any subcontractors shall post the prevailing wage rates and fringe benefits as required by ORS 279C.840.

B. Contractor shall furnish weekly to the City, certified statements, in writing, on a form prescribed by the Commissioner of the Bureau of Labor, certifying: (a) the hourly rate of wage paid each worker whom the contractor or the subcontractor has employed on the works; and

(b) that no worker employed on the work has been paid less than the prevailing rate of wage or less than the minimum hourly rate of wage. If the Contractor has not filed the certified statements as required under this contract, the City shall retain 25 percent (25%) of any amount earned by the Contractor until the Contractor has complied. The City shall pay the Contractor the amount retained under this subsection within 14 days after the Contractor has filed the certified statements with the City.

C. Contractor shall allow the State of Oregon Bureau of Labor and Industries to enter the office or business establishment of Contractor at any reasonable time to determine whether the prevailing rate of wage is actually being paid and shall make payment records available to the State of Oregon Bureau of Labor and Industries on request. Contractor shall require subcontractors to provide the same right of entry and inspection.

D. City shall not make final payment unless the prevailing wage rate certifications are received.

E. Contractor must comply with all laws and regulations relating to prevailing wages, whether or not set out in this contract. Further information regarding prevailing wages, including requirements applicable to Contractor, is available at:

F. Contractor shall pay to workers in each trade or occupation the current, applicable State prevailing rate of wage as established by the State of Oregon Bureau of Labor and Industries, which is available at:

https://www.oregon.gov/boli/employers/pages/prevailing-wage-rates.aspx and, if applicable, the federal prevailing rate of wage required under the Davis-Bacon Act (40 U.S.C.

3141 et seq.) through to the completion of this Contract, which is available at:

https://sam.gov/content/wage-determinations. The current wage rate is determined by the

1st date of advertisement of the project.

G. Davis-Bacon Act and State of Oregon prevailing wage rates included in the Invitation to Bid are applicable to this project; the higher of two wage rates shall be paid for each hour worked.

11. Performance and Payment Bonds.

A. Contractor [enter is] OR [enter is not] required to provide 100 percent (100%) performance and payment bonds in accordance with ORS 279C.380. No separate payment is due to Contractor for such bonds. Contractor shall execute and deliver to the City a performance bond and a payment bond each in a sum equal to the Contract price for public improvement contracts with a value, estimated by the City, of more than $100,000 or, in the case of contracts for highways, bridges and other transportation projects, more than $50,000. City Public Contracting Rule 137-049-0460(1).

B. Surety.

https://www.oregon.gov/boli/employers/pages/prevailing-wage-rates.aspx https://sam.gov/content/wage-determinations

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 5 of 24

1) Requirement for Surety Bond. The City shall accept only a performance bond furnished by a surety company authorized to do business in Oregon, unless otherwise specified in the solicitation document (i.e., the City may accept a cashier's check or certified check in lieu or all or a portion of the required performance bond if specified in the solicitation document). The payment bond must be furnished by a surety company authorized to do business in Oregon, and in an amount equal to the full Contract price. City Public Contracting Rule 137-049-0460(3).

2) Substitute Contractor. If the Contractor provided a performance bond, the Contracting Agency, in its sole discretion, may afford the Contractor's surety the opportunity to provide a substitute contractor to complete performance of this Contract. A substitute contractor shall perform all remaining Work and comply with all terms and conditions of this Contract, including the provisions of the performance bond and the payment bond.

City Public Contracting Rule 137-049-0470.

C. Time for Submission. Contractor must promptly furnish the required performance security upon the City’s request. City Public Contracting Rule 137-049-0460(4).

12. Public Records. The parties acknowledge that this Contract and all records held by the City are public records and subject to public disclosure unless a statutory exemption applies, and agree that the City will have no liability for the disclosure of any confidential information in response to a public records request where such disclosure is required by court or district attorney order, or by the City’s good faith interpretation of its statutory requirements.

13. Confidentiality and Protection of Consumer Personal Information. If Contractor as part of performing Work under this Contract receives any consumer personal information, Contractor must maintain confidentiality of such consumer personal information and may not use, release, or disclose any information concerning any employee, client, applicant, or person doing business with City for any purpose not directly connected with the administration of the City's or Contractor's responsibilities under this Contract, except upon written consent of the City and, if applicable, the employee, client, applicant, or person. Contractor must ensure that its officers, employees, agents, and subcontractors understand and comply with the confidentiality provisions of this Contract. If Contractor owns, maintains, or otherwise possesses data that includes a consumer's personal information, Contractor must have and maintain appropriate administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of consumer personal information, and agrees to comply with all other provisions of the Oregon Consumer Identity Theft Protection Act (ORS 646A.600 et seq.) throughout the term of this Contract.

14. Records Maintenance, Access, Inspection, and Right to Audit Records.

A. Record Maintenance and Access to Records. Contractor and its subcontractors shall maintain all fiscal records relating to this Contract in accordance with generally accepted accounting principles). In addition, Contractor and its subcontractors performing work related to this Contract shall maintain all other records necessary to clearly document (i) their performance;

and (ii) any claims arising from or relating to their performance this Contract. Contractor and its subcontractors shall make all records pertaining to their performance and any claims under this Contract (the books, fiscal records and all other records, hereafter referred to as

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 6 of 24

“Records”) accessible to the City at reasonable times and places, whether or not litigation has been filed as to such claims. City Public Contracting Rule 137-049-0880(1).

B. Inspection and Audit. The City may, at reasonable times and places, have access to and an opportunity to inspect, examine, copy, and audit the Records of any person that has submitted cost or pricing data according to the terms of the Contract to the extent that the Records relate to such cost or pricing data. If the person must provide cost or pricing data under the Contract, the person shall maintain such Records that relate to the cost or pricing data for three (3) years from the date of final payment under the Contract, unless a shorter period is otherwise authorized by written agreement between the parties. City Public Contracting Rule 137-049-0880(2).

C. Records Inspection; Contract Audit. The City, and its authorized representatives, shall be entitled to inspect, examine, copy, and audit any Contractor's or its subcontractor's Records, as provided in subsection 14.A above. Contractor and subcontractor shall maintain the Records and keep the Records accessible and available at reasonable times and places for a minimum period of three (3) years from the date of final payment under the Contract or subcontract, as applicable, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later, unless a shorter period is otherwise authorized in Writing. City Public Contracting Rule 137-049-0880(3).

15. Assignment.

A. Neither party shall assign or transfer any interest in or duty under this Contract without the written consent of the other.

B. If City agrees to assignment of tasks to a subcontractor, Contractor shall be fully responsible for the acts or omissions of any subcontractors. Any assignee or transferee shall be considered the agent of the Contractor and be bound to abide by all provisions of this Contract. Any approval of a subcontractor does not create a contractual relationship between the subcontractor and City.

C. If the City consents in writing to an assignment, sale, disposal or transfer of the Contractor's rights or delegation of Contractor's duties, the Contractor and its surety, if any, shall remain liable to the City for complete performance of the Contract as if no such assignment, sale, disposal, transfer or delegation had occurred unless the Contracting Agency otherwise agrees in writing.

16. Binding on Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the parties to this Contract, their respective successors, and permitted assigns.

17. No Third-Party Beneficiaries. The City and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives or may be construed to give or provide any benefit or right to third persons, either directly or indirectly, that is greater than the rights and benefits enjoyed by the general public, unless that party is identified by name in this Contract.

18. Independent Contractor. Contractor is an independent contractor as defined by ORS 670.600 and

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 7 of 24 not an employee of the City. Contractor is not an officer, employee or agent of the City as those terms are used in ORS 30.265. Contractor acknowledges that it is not entitled to benefits of any kind to which a City employee is entitled and that it shall be solely responsible for any workers’ compensation coverage, social security, unemployment insurance or retirement payments, and federal or state taxes due as a result of payments under this Contract, whether due on account of Contractor or Contractor’s subcontractor, if any. In the event that Contractor is found by a court of law or an administrative agency to be an employee of the 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 Contract, to the full extent of any benefits or other remuneration Contractor receives (from the City or third party) as a result of the finding and to the full extent of any payments that the City is required to make as a result of the finding.

19. Indemnity.

A. General Indemnification. To the fullest extent permitted by law, and to the extent covered by private contracts of insurance, Contractor shall indemnify, defend, and hold harmless the City, its officers, employees, volunteers, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses, including reasonable attorney fees and costs of defense, arising out of or resulting from the Contractor’s performance of, or failure to perform, any obligations under this Contract.

B. Owner's Actions. Subsection 19.A above does not include indemnification by Contractor of the City for the City's acts or omissions, whether related to this Contract or otherwise.

C. Owner Defense Requirements. Notwithstanding the foregoing defense obligations, neither Contractor nor any attorney engaged by Contractor shall defend any claim in the name of the City, nor purport to act as legal representative of the City or any of its agencies, without the prior written consent of the City. The City may assume its own defense and settlement of any claims, and reserves all rights to pursue any claims it may have against Contractor.

D. Intellectual Property, Defense. This indemnification must extend to Work that may be the subject of protection under any state or federal intellectual property law or doctrine, including any claim that the City's use thereof infringes any patent, copyright, trade secret, trademark, or other proprietary right of any third party.

20. Insurance.

A. Prior to Commencement of Work. Contractor may not commence any Work until Contractor provides the City with a Certificate of Insurance (COI) for all required coverage and obtains the City's approval as to limits, form, and amount.

B. Coverage. Contractor shall maintain, at a minimum, the types and amounts of insurance coverage listed in the subsections below. These amounts represent minimum required limits and shall not be construed as maximums or limitations of the Contractor’s liability. Umbrella or excess liability insurance may be used to satisfy the required minimum policy limits for Commercial General Liability, Automobile Liability, and Employers’ Liability Insurance, provided such coverage is at least as broad as the underlying policies. Any modification to the insurance requirements in this contract form must be approved by the City Attorney’s Office.

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1) Commercial General Liability Insurance. Contractor shall maintain Commercial General Liability Insurance covering claims for bodily injury (including death), property damage, medical expenses, personal and advertising injury, and products/completed operations.

Coverage shall be written on an occurrence basis, with minimum limits of $2,000,000 per occurrence, $4,000,000 general aggregate, $4,000,000 products/completed operations aggregate, $2,000,000 personal and advertising injury, $50,000 damage to rented property, and $5,000 medical expenses. The policy shall include a combined single limit per occurrence for bodily injury and property damage.

2) Commercial Automobile Insurance. Commercial Automobile Liability Insurance covering liability arising out of the ownership, maintenance, or use of all owned, hired, and non-owned vehicles. Coverage shall be written on a per accident basis, with minimum limits of $2,000,000 per accident for bodily injury and property damage. The policy shall include a combined single limit of liability per accident for bodily injury and property damage.

3) Workers' Compensation and Employers' Liability Insurance. Contractor shall maintain Workers' Compensation and Employers' Liability Insurance as required by Oregon law for all persons performing work under this Contract. Any subcontractor engaged by Contractor shall also maintain such coverage. Out-of-state employers must obtain Oregon workers’ compensation coverage for any employees working at a single location in Oregon for more than thirty (30) days in a calendar year. Contractors who perform work without the assistance or labor of any employee are not required to obtain such coverage.

This shall include Employer’s Liability Insurance with coverage limits of not less than $500,000 each accident, $500,000 per employee for disease, and $500,000 policy limit for disease.

C. Endorsements.

1) Additional Insured Requirements. Commercial General Liability Insurance and Commercial Automobile Liability Insurance shall include endorsements naming the City, its officers, employees, volunteers, and agents as additional insured. For Commercial General Liability Insurance, Contractor shall provide an additional insured endorsement.

For Commercial Automobile Liability Insurance, Contractor shall provide a designated insured endorsement (ISO form CA 20 48 02 99 or equivalent). Both policies shall be primary and non-contributory with respect to any other insurance or self-insurance maintained by the City. Commercial General Liability coverage shall also be endorsed to provide a separate per-project aggregate limit.

2) Blanket Endorsements. Notwithstanding the foregoing, a blanket additional insured endorsement is acceptable and shall satisfy the additional insured requirement under any insurance policies required herein. Proof of such blanket coverage shall be provided by either: (a) a copy of the Contractor’s policy language demonstrating blanket additional insured coverage; or (b) a separate blanket endorsement. Commercial General Liability Insurance coverage shall be endorsed to provide a separate per-project aggregate limit.

D. Contractor to Maintain Insurance. Contractor may not cancel, materially change coverage that would cause non-compliance with the specific provisions required herein, or not renew insurance coverages. If any policy is canceled before final payment by the City to Contractor, CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 9 of 24

Contractor must immediately procure other insurance meeting the requirements. Any insurance bearing on adequacy of performance must be maintained after completion of the Contract. If Contractor fails to maintain any required insurance, the City reserves the right to procure such insurance and to charge the cost to Contractor.

E. Continuous or Extended Reporting Coverage. If any of the liability insurance is arranged on a “claims made” basis, Extended Reporting coverage will be required at the completion of this Agreement to a duration of twenty-four (24) months or the maximum time period the Consultant’s insurer will provide if less than twenty-four (24) months. Consultant will be responsible for furnishing certification of Extended Reporting coverage as described or continuous “claims made” liability coverage for 24 months following Agreement completion.

Continuous “claims made” coverage will be acceptable in lieu of Extended Reporting coverage, provided its retroactive date is on or before the effective date of this Agreement.

Coverage will be endorsed to provide a per project aggregate.

F. Notice of Cancellation. There shall be no cancellation, material change in coverage that would cause non-compliance with the requirements of section 20, exhaustion of aggregate limits or intent not to renew insurance coverage without thirty (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 thirty (30) days’ notice of cancellation provision shall be physically endorsed on to the policy.

G. Certificates of Insurance (COI). As evidence of the insurance coverage required by the Contract, the Contractor shall furnish a COI to the City. The COI must note the project name and City representative’s name. Contractor is responsible for ensuring that a renewal certificate is sent to the City’s representative, ten (10) days prior to coverage expiration.

Contractor shall send its COI to the City representative listed in section 21 below.

H. Copy of Policy. Contractor is required to provide a copy of the policy to the City upon demand.

21. Authorized Representatives and Notice. Each of the parties designates the following individuals as its authorized representative for administration of this Contract.

City of Newport’s Authorized Representative

Name Title Department City of Newport 169 SW Coast Highway Newport, Oregon 97365 Phone Number Email Address

Contractor’s Authorized Representative

Name Title Company Name Street Address City, State Zip Phone Number Email Address

Either party may designate a new authorized representative by written notice to the other.

Any notice, bills, payments, demand, consent, approval, or other communication to be given under this Contract must be in writing and provided by email addressed to the party’s authorized

CONSTRUCTION CONTRACT (non-EJCDC, CSI, or AIA) (rev. by City Attorney 1/27/2026) Page 10 of 24 representative, except as provided below in this section. However, if, in either party’s discretion, email is not the most appropriate method for providing notice, then notice may be provided by personal delivery; certified mail, postage prepaid, return receipt requested; or nationally recognized overnight courier. The effective date of notice shall be: for notice by email, the date and time sent if sent between the hours of 8:00 am and 5:00 pm, otherwise effective at 8:00 am the following business day; for notice delivered in person, the date and time of delivery; for notice by U.S. mail, three (3) days after the date of certification; and for notice by overnight courier, the next business day after deposit with the courier. Parties may change their respective authorized representative by giving written notice to the other party pursuant to the requirements of this paragraph.

22. Suspension of Work; Termination.

A. Suspension of Work. In the event the City suspends performance of Work for any reason considered by the City to be in the public interest other than a labor dispute, the Contractor shall be entitled to a reasonable extension of Contract time, and to reasonable compensation for all costs, including a reasonable allowance for related overhead, incurred by the Contractor as a result of the suspension. City Public Contracting Rule 137-049-0900(1).

B. Mutual Agreement. The parties may jointly agree to terminate this Contract at any time by written agreement.

C. For Public Convenience.

1) The City may terminate this Contract for its convenience at any time with no liability on its part, except for payment for Work provided prior to the effective date of termination, by giving Contractor not less than thirty (30) days advance written notice.

2) If the Contract is terminated for public convenience, compensation shall be determined by the amount of Work completed/installed and materials and equipment furnished and the status of payment (paid/un-paid) for such Work, materials and equipment; less any outstanding labor or material claims against the Contractor. City Public Contracting Rule 137-049-0900(3).

D. For Cause.

1) The City may terminate this Contract effective upon delivery of written notice to Contractor, or at such later date as it may be established by the City, under any of the following conditions:

i. If the City reasonably believes that Contractor is in material breach of Contractor’s obligations or any representation or warranty contained in this Contract, the City may suspend Work at any time without notice. Upon notice to Contractor of such breach, and failure of Contractor to cure such breach within seven (7) days of receipt of the City’s notice, the City may terminate this Contract.

ii. The City certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Contract for the period within the current budget year.

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However, Contractor understands and agrees that: (1) if the City fails to appropriate funds for any successive budget year or determines that termination of this Contract is required for the public interest; or (2) if the City’s funding, appropriations, or expenditure authority are reduced to a level insufficient, in the City’s reasonable administrative discretion, to perform its obligations under this Contract; or (3) if the City’s funding source(s) eliminates, reduces, or freezes any funding the City is relying upon for this Contract, the City may terminate the Contract immediately upon notice to Contractor.

2) The City may terminate the Contract immediately and without prior notice upon any of the following:

i. If Contractor fails to have in force any insurance required by this Contract;

ii. If Contractor breaches the City’s security requirements; or

iii. If Contractor fails to maintain any certificate of license required for performance of Work.

iv. If Federal or State regulations or guidelines are modified, changed, or interpreted in such a way that the Work are no longer allowable.

E. Upon termination of this Contract, the City shall have no further obligation to the Contractor for payment for Work provided after the effective date of such termination.

F. Upon termination, Contractor shall provide City with immediate and peaceful possession of the project site, and of all materials and equipment to be incorporated into the project, whether located on and off the project site, for which the Contractor received progress payments.

G. Any termination of this Contract shall be without prejudice to the rights, obligations, or liabilities of either party that accrued prior to the effective date of such termination.

H. Responsibility for Completed Work. Termination of this Contract or a divisible portion thereof shall not relieve either the Contractor or its surety of liability for claims arising out of the Work performed. City Public Contracting Rule 137-049-0900(4).

23. Remedies and Default.

A. The City may exercise any of the following remedies for Contractor's failure to perform the scope of work or failure to meet established performance standards: reduce or withhold payment; require Contractor to perform, at Contractor's expense, additional work necessary to perform the identified scope of work or meet the established performance standards; or declare a default, terminating the Contract and seeking damages and other relief available under the terms of this Contract or applicable law.

B. Remedies Cumulative. The City may, at its discretion, avail itself of any or all rights or remedies set forth in these rules, in the Contract, or available at law or in equity. Public

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Contracting Rule 137-049-0900(5).

24. Liquidated Damages.

A. Contractor recognizes that the City shall incur significant internal and external costs (damages) as a result of any delay by the Contractor completing all Work within the specified Contract time. However, given the nature of the project, it is unduly burdensome and difficult to demonstrate the exact dollar value of damages related to delay. The City has made a good faith and reasonable estimate of damages it would suffer from delay in completion.

Contractor agrees to pay to the City, not as a penalty but as liquidated damages, the amount of $______, for each calendar day of delay in completion of the project.

B. The City is authorized to deduct the amount of the liquidated damages from any amounts due and the Contractor and its surety shall be liable for any excess.

C. If the Contract is terminated according to the section 22 and if the Work has not been completed by other means on or before the expiration of the Contract, liquidated damages shall be assessed against the Contractor for the duration of time reasonably required to complete the work.

25. Force Majeure. Neither City nor Contractor will be held responsible for delay or default due to force majeure acts, events or occurrences, including but not limited to fires, flood, earthquake, lightning, insurrection, civil unrest, riots, wars, epidemics, freight embargo, and civil blockade, unless such delay or default could have been avoided by the exercise of reasonable care, prudence, foresight, and diligence by that party. The parties shall be excused from performing their respective obligations under this Contract to the extent performance is prevented by force majeure acts, events, or occurrences. The party prevented from performing its obligations under this Contract due to force majeure acts, events or occurrences shall as soon as practicable from the beginning of such delay notify the other party in writing of the cause 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 this Contract. If delays or nonperformance are caused by a subcontractor of Contractor, Contractor will be liable for such supplies or services if the supplies or services were obtainable from other sources in sufficient time to permit Contractor to meet the required schedule. The City may terminate this Contract upon written notice after determining that a delay or default caused by force majeure acts, events, or occurrences will reasonably prevent successful performance this Contract.

26. Dispute Resolution. The parties are required to exert every effort to cooperatively resolve any disagreements that may arise under this Contract. This may be done at any management level, including at a level higher than the persons directly responsible for administration of this Contract.

In the event that the parties alone are unable to resolve any conflict under this Contract, they are encouraged to resolve their differences through mediation.

27. Attorney Fees. In the event an action, suit, proceeding, including appeals, is brought for failure to observe any of the terms of this Contract, each party will be responsible for that party's own attorney fees, expenses, costs and disbursements for the action, suit, proceeding, or appeal.

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28. Choice of Law, Venue, and Jurisdiction. This Contract shall be governed by and construed in accordance with the laws of the State of Oregon, without regard to conflict of law principles. Any action or suits involving any question arising under this Contract must be brought in the appropriate court of the State of Oregon, and the parties hereby consent to venue in Lincoln County Circuit Court, Oregon, unless exclusive jurisdiction is in federal court, in which case venue shall be in federal district court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS, WAIVES ANY OBJECTION TO VENUE IN SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. This section does not constitute a waiver by the City of any form of defense or immunity, whether governmental immunity or otherwise, from any claim or from the jurisdiction of any court.

29. Nondiscrimination. Contractor must comply with all applicable requirements of federal and state civil rights, rehabilitation, and other non-discrimination statutes, rules, and regulations, including but not limited to Americans with Disabilities Act of 1990, ORS 659A.142.

30. Compliance with Applicable Law. Contractor must comply with all applicable federal, state, and local laws, regulations, codes and ordinances applicable the work under this Contract. Contractor shall be familiar with and responsible for compliance with all applicable provisions of the Oregon Public Contracting Code.

31. Standard Oregon General Public Contracting Requirements

A. Contractor shall pay promptly, as due, all persons supplying labor or materials for the prosecution of the work provided for in this Contract and shall be responsible for such payment of all persons supplying such labor or material to any subcontractor. ORS 279B.220(1); 279C.505(1)(a).

B. Contractor shall promptly pay all contributions or amounts due to the Industrial Accident Fund from such Contractor or subcontractor incurred in the performance of the contract. ORS 279B.220(2); 279C.505(1)(b).

C. Contractor shall not permit any lien or claim to be filed or prosecuted against the City on account of any labor or material furnished. ORS 279B.220(3); 279C.505(1)(c). Contractor agrees to assume responsibility for satisfaction of any such lien so filed or prosecuted.

D. Contractor and any subcontractor shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. ORS 279B.220(4); 279C.505(1)(d).

E. Contractor shall promptly, as due, make payment to any person, copartnership, association, or corporation, furnishing medical, surgical and hospital care or other needed care and attention, incident to sickness or injury, to employees of such Contractor, of all sums which the Contractor agrees to pay for such services and all monies and sums which the Contractor collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. ORS 279B.230(1);

279C.530(1).

F. All subject employers working under the Contractor are either employers that will comply with ORS 656.017, or employers that are exempt under ORS 656.126. ORS 279B.230(2);

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279C.530(2).

G. Contractor must comply with requirements related to employed persons’ hours of work and payment for overtime work, in accordance with ORS 279B.235(3), 279C.520(3), 279C.540, as applicable.

H. The Contractor must give notice to employees who work on this Contract in writing, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and the days per week that the employees may be required to work. ORS 279B.235(2); 279C.520(2).

I. Contractor certifies compliance with all applicable Oregon tax laws, in accordance with ORS

305.385. Contractor shall continue to comply with Oregon tax laws and any tax provisions imposed by a political subdivision thereof during the term of this Contract. Contractor’s failure to comply with Oregon tax laws or a political subdivision thereof before Contractor signed this Contract or during the term of this Contract is a default for which the City may terminate this Contract and seek damages and other relief available under the terms of this Contract or under applicable law. ORS 279B.045.

J. If Contractor is a nonresident bidder and this Contract price exceeds $10,000, Contractor must promptly report to the Department of Revenue on forms provided by that Department of Revenue the total contract price, terms of payment, length of contract and such other information as the Department of Revenue may require before the City will make final payment on the contract, in accordance with ORS 279A.120. ORS 279A.120.

32. Public Improvement Contracting Requirements.

A. Demolition. Pursuant to ORS 279C.510, Contractor shall salvage or recycle construction and demolition debris, if feasible and cost-effective.

B. Lawn and Maintenance. Pursuant to ORS 279C.510, for lawn and landscape maintenance, Contractor shall compost or mulch yard waste material at an approved site, if feasible and cost-effective.

C. Employee Drug Testing Program. Pursuant to ORS 279C.515, Contractor must demonstrate that an employee drug testing program is in place. ORS 279C.505(2).

D. Contractor’s Control of the Work.

1) Prosecution of the Work. Contractor must plan, schedule, supervise, and direct the Work using the Contractor’s best skill and attention. Contractor lien as sole control and responsibility coordinating the Work and for construction means, methods, techniques, sequences, and processes.

2) Safety. Contractor must take all necessary precautions for the safety of Contractor’s employees, subcontractors, suppliers, inspectors, and all other invitees, licensees, or visitors on or adjacent to the premises where any part of the Work is being performed, and must comply with the requirements of the Contract Documents, best practices, and

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Contractor must erect and properly maintain at all times, as required by the conditions and progress of the Work, all safeguards necessary for protection of workers and the public against any hazards presented by the Work.

3) Warranties.

i. Contractor warrants to City that the materials and equipment furnished under this Contract will be of good quality and new unless the Contract permits otherwise, that the Work will conform to the requirements of the Contract and be free from defects, except for those inherent in the materials or methods required or allowed. Work or materials conforming to the requirements of the Contract may be considered defective. This warranty excludes damage caused by abuse, alterations, improper or insufficient maintenance or operation, or normal wear and tear.

ii. Warranties shall be for one year from the date of acceptance by the City, except where manufacturers' warranties and extended manufacturer warranties as specified in the Contract Documents or otherwise is a standard manufacturer product warranty shall not be abridged. In addition to its right to proceed on the warranty, the City may recover for breach of contract or negligence even if defects do not become evident during the warranty period.

iii. Contractor shall perform all work in accordance with all specifications, correcting any work not in compliance with specifications, and for all repairs of damage to other improvements, natural and artificial structures, systems, equipment, and vegetation caused by, or resulting in whole or in part from occurrences beginning during the warranty period and are the result of defects in construction or materials installed under this contract. Contractor shall be responsible for all costs associated with site cleanup and remediation caused by, or resulting in whole or in part from, defects in its work or materials.

iv. Within ten (10) days of the City's written notice of defects, Contractor or Contractor's surety shall start repair of the defects and all related damage. If Contractor or Contractor's surety fails to correct and repair the defects in a timely manner, the City may have the correction and repair done by others. Contractor or Contractor's surety shall promptly reimburse the City for all expenses incurred to correct and repair the defects.

v. In case of an emergency where delay could result in serious loss or damage, the City may make emergency corrections and repairs, without written notice. Contractor or Contractor's surety shall promptly reimburse the City for all expenses incurred to correct and repair the defects.

vi. All work done to comply with the warranty shall be warranted for one year beginning on the date of the City's acceptance of the corrections, repairs, replacements or changes.

E. Changes and Claims.

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1) Changed Conditions. If Contractor encounters conditions at the site that are subsurface or concealed physical conditions that differ materially from those indicated in the Contract Documents, or unknown physical conditions of an unusual nature that differ substantially from those ordinarily existing and recognized as inherent in the construction Contractor must promptly provide notice to the Owner before such conditions are disturbed, and in no event later than 7 days after the conditions are first observed. Such conditions may give rise to a change order or a claim.

2) Change Directives and Orders. City may order changes to in the Work after the execution of the Contract, and will be based a directive from City or a change order agreed between City and Contractor. Contractor must proceed promptly with such changes. The Contract amount will be adjusted by an agreed amount based upon the increased or decreased cost of the Work, including general conditions expenses, caused by the change.

Contractor will be entitled to an amount for overhead and profit of not more than ten percent (10%) of the cost. If a change results in a decreased cost, Contractor will not be obliged to refund any percentage for overhead and profit for that change.

3) Initiation of Claim. Claims by either Contractor or City must be initiated by clear and explicit notice to the other party given in the manner stated for notice in this Contract.

4) Prompt Notice of Claim. Any claim by either party must be initiated within fourteen (14) days after occurrence of the event giving rise to such a claim, or within fourteen (14) days after the party making the claim first recognizes the condition giving rise to the claim, whichever is later. After the passage of the period of time for submission of a claim, no claim may be considered except as agreed by the parties.

5) Continuation of the Work. Pending final resolution of a claim, Contract must proceed diligently with performance of Contractor’s obligations under the Contract

F. Payments by Contractor.

1) Pursuant to ORS 279C.580, Contractor must include the following clauses in each subcontract for property or services the contractor enters into with a first-tier subcontractor, including a material supplier, for the purpose of performing a construction contract:

i. A payment clause that obligates the contractor to pay the first-tier subcontractor for satisfactory performance under…