Construction_Contract_-_Sample.docx

CONSTRUCTION CONTRACT

This Construction Contract (“Construction Contract’) is made and entered into by and between the City of Beaverton, an Oregon municipal corporation (“City”), and ______________________________, located at ______________________________________ (“Contractor”), collectively known as “the Parties.” The City’s primary supervisor for this Contract is _______________, Project Manager.

THE PARTIES AGREE AS FOLLOWS:

1. Effective Date. This Construction Contract shall become effective on the date this Construction Contract has been signed by every Party, and approved by legal counsel for the City.

1. Scope of Work. Contractor shall:

1. Perform the Work described in Contractor’s Bid (“Bid”) in response to the City’s Invitation to Bid (“ITB”), dated Click or tap to enter a date. entitled “Invitation to Bid for Click or tap here to enter text., Solicitation No. Purchasing will fill in..

1. Furnish all labor, tools, materials, equipment and supplies required to perform the Work.

1. Perform the Work provided in Contractor’s Bid to the satisfaction of the City and under the terms and conditions of this Construction Contract.

1. Construct and complete in good, workmanlike and substantial manner the Work within ___ calendar days from the date of the City’s written notice to proceed. [If more than one completion time is necessary, please list all completion times and dates, including substantial completion times and dates here.]

1. Oregon Standard Specifications for Construction. All Work and payments under this Contract shall be performed and made in accordance with the Oregon Standard Specifications for Construction (latest edition) (“Standard Specifications”), as modified by the General Requirements and Special Provisions section in the ITB.

1. Consideration. Except as provided in Section 6, the City shall pay Contractor to provide the materials and perform the Work at the price and on the schedule established in the Bid Documents. The total not-to-exceed amount of compensation payable to Contractor under this Construction Contract for satisfactory accomplishment of the Work is $_____________________. Contractor agrees that the prices provided in the Bid are full and fair compensation to Contractor for furnishing all labor, materials, and equipment to perform the Work contemplated by this Construction Contract in a manner satisfactory to the City.

1. Payment Schedule.

4. City’s Engineer shall estimate the amount of Work completed and the value of Work completed to the City’s complete satisfaction at the end of each calendar month, and the Parties agree that the Engineer’s judgment on the amount of work and the value of work is final. City shall then make partial payment to Contractor equal to the value of the completed work, less amounts that may have been previously paid, less other amounts that may be deductible or owing and due the City, and less retainage in the amount not to exceed five percent of the value of work completed to the City’s complete satisfaction, unless Contractor requests an alternative form of retainage pursuant to ORS 279C.560 (1).

4. City shall own the retainage until the Work is complete and the last partial payment of the contract price is due and owing to Contractor. Contractor may request the City to deposit all retainage in an interest-bearing account in accordance with ORS 279C.560.

4. City’s obligation to make any and all such payments is expressly conditioned upon Contractor’s completion of the Work or any part of it within the time specified by the City. A partial payment to Contractor shall not be construed as an acceptance of the Work or materials under this Construction Contract by the City.

4. When the value of the work is less than $500, the City shall not be obligated to make a partial payment for that period. City reserves the right to withhold payment for Work that fails to conform to the Contract Documents. In all cases, City shall make partial payments in accordance with the provisions of ORS 279C.570, which shall control over anything inconsistent in this Construction Contract.

1. Changes or Delays in Work. The City shall use the Standard Specifications, as modified by the General Requirements and Special Provisions section in the ITB, including 00180.80, to assess any changes or delays in Work claimed by Contractor, which may include any claimed changes or delays in Work attributable to the COVID-19 Pandemic.

1. Compliance with Applicable Laws and Regulations. Contractor shall comply with all federal, state, and local laws, codes, ordinances, rules, regulations and executive orders applicable to the Work to be performed under this Construction Contract. Contractor’s failure or neglect to comply with any or all such laws, codes, ordinances, rules, regulations, and executive orders does not relieve Contractor of these obligations or the requirements of this Contract.

Contractor shall specifically comply with the following laws:

6. All state and local tax laws including, but not limited to, ORS 305.620 and ORS Chapters 316, 317, and 318 during the term of this Contract.

6. All federal, state, and local civil rights laws and rehabilitation laws prohibiting discrimination based on race, color, sex, national origin, religion, age, disability, sexual orientation.

6. All applicable laws and regulations in ORS 279A, 279B, and 279C relating to public contracts, and specifically including ORS 279C.505 and ORS 279C.515.

6. ORS 646A.600 to 646A.628, the Oregon Consumer Identity Theft Protection Act, which requires Contractor to safeguard consumer personal information.

6. All federal and state laws or regulations specific to the funding source supporting the Contract.

6. Beaverton Code Chapter 7.01, which requires Contractor to obtain a City of Beaverton business license before beginning Work under the Contract.

1. Payment; Contributions; Liens, Withholding; Drug Testing. Pursuant to ORS 279C.505 and as a condition to City’s performance under this Construction Contract:

7. Contractor shall:

0. Make payment promptly, as due, to all persons supplying to Contractor labor or material for the performance of the Work provided in the Construction Contract.

0. Pay all contributions or amounts due the Industrial Accident Fund from Contractor or subcontractor incurred in the performance of the Construction Contract.

0. Not permit any lien or claim to be filed or prosecuted against the state or a county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or material furnished.

0. Pay to the Department of Revenue all sums withheld from employees under ORS 316.167.

0. Ensure that Contractor has an employee drug-testing program in place.

1. Unpaid Claims. Pursuant to ORS 279C.515 and as a condition to City’s performance under this Contract:

8. If Contractor fails, neglects, or refuses to pay promptly a person’s claim for labor or services that the person provides to Contractor or a subcontractor in connection with the Construction Contract as the claim becomes due, the City may pay the amount of the claim to the person that provides the labor or services and charge the amount of the payment against funds due or to become due to Contractor by reason of the Construction Contract.

8. If Contractor or a first-tier subcontractor fails, neglects, or refuses to pay a person that provides labor or materials in connection with the Construction Contract within 30 days after receiving payment from the City or a contractor, Contractor or first-tier subcontractor owes the person the amount due plus interest charges that begin at the end of the 10-day period within which payment is due under ORS 279C.580(4) and that end upon final payment, unless payment is subject to a good faith dispute as defined in ORS 279C.580. The rate of interest on the amount due is nine percent per annum. The amount of interest may not be waived.

8. If Contractor or subcontractor fails, neglects or refuses to pay a person that provides labor or materials in connection with the Construction Contract, the person may file a complaint with the Contractors Construction Board, unless payment is subject to a good faith dispute as defined in ORS 279C.580.

8. Paying a claim in the manner authorized by this section does not relieve Contractor or Contractor’s surety from obligation with respect to an unpaid claim.

1. Hours of Labor; Overtime Limitation. Pursuant to ORS 279C.520:

9. Contractor shall not employ a person to perform Work under this Construction Contract for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or where public policy absolutely requires it. In such cases, Contractor shall pay the employee at least time and a half pay for:

0. All overtime in excess of 8 hours in any one day or 40 hours in any one week if the work is 5 consecutive days, Monday through Friday; or

0. All overtime in excess of 10 hours in any one day or 40 hours in any one week if the work week is four consecutive days, Monday through Friday; and all work the employee performs on Saturday and on any legal holiday specified in ORS 279C.540.

9. Contractor shall comply with the prohibition set forth in ORS 652.220, which provides that Contractor shall not discriminate against any of its employees in the payment of wages or other compensation for the work of comparable character, the performance of which requires comparable skills, or pay any employee at a rate less than another for comparable work, based on an employee’s membership in a protected class.

9. Contractor may not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits or other compensation with another employee or another person and may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or person.

9. If the Contract is a public contract for personal services, as defined in ORS 279C.100, Contractor shall pay Contractor’s employees who work under the Contract at least time and a half for all overtime the employees work in excess of 40 hours in any one week, except for employees under a personal services public contract who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from receiving overtime.

9. If the Construction Contract is a public contract for services, Contractor shall:

4. pay employees at least time and a half pay for work the employees perform under the Contract on the legal holidays specified in a collective bargaining agreement or in ORS 279C.540(1)(b)(B) to (G) and for all time the employees work in excess of 10 hours in one day or in excess of 40 hours in any one week, whichever is greater.

4. give notice in writing to employees who work on the Contract, either at the time of hire or before Work begins on the Contract, or by posting notice in a location frequented by employees, of the number of hours per day and the days per week that Contractor may require the employees to work.

9. Any worker employed by Contractor shall be foreclosed from the right to collect any overtime provided in ORS 279C.540 unless a claim for payment is filed with Contractor within 90 days from the completion of the contract, provided that Contractor has fulfilled the requirements described in subsection (a) and (b) in ORS 279C.540.

1. Independent Contractor. Contractor is an independent contractor and is not an employee or agent of City for any purpose. Contractor shall be solely responsible for its acts and for the acts of its employees or agents during the performance of the Work under this Contract.

Neither Contractor nor any of Contractor’s employees or agents is entitled to any of the benefits, including, but not limited to, social security, workers’ compensation, and unemployment insurance benefits that City provides its employees. Contractor is responsible for all federal or state taxes under this Construction Contract. Unless Contractor is subject to backup withholding, City shall not withhold payments any amount to cover Contractor’s federal or state tax obligations.

1. Salvage, Recycling, Composting, Mulching. Pursuant to ORS 279C.510(1), and as a condition of City’s performance hereunder, if the Construction Contract is a contract for demolition, Contractor shall salvage or recycle construction and demolition debris, if feasible and cost-effective.

Pursuant to ORS 279C.510(2), and as a condition of City’s performance hereunder, if the Construction Contract is a contract for lawn and landscape maintenance, Contractor shall compost or mulch yard waste at an appropriate site, if feasible and cost-effective.

1. Payment for Medical Care. Pursuant to ORS 279C.530(1), and as a condition to City's performance hereunder, Contractor shall promptly, as due, make payment to any person, partnership, association or corporation furnishing medical, surgical, and hospital care or other needed care and attention, incident to sickness or injury, to the employees of Contractor, of all sums that Contractor agrees to pay for the services and all moneys and sums that Contractor collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services.

Pursuant to ORS 279C.530(2), and as a condition to City's performance hereunder, all subject employers working under this Construction Contract are either employers that must comply with ORS 656.017 or employers that are exempt under ORS 656.126.

1. Required Contract Conditions for Subcontractors. Pursuant to ORS 279C.580(3), Contractor shall include in each subcontract for property or services entered into by Contractor and a first-tier subcontractor, including a material supplier, for the purpose of performing this Construction Contract:

1. A payment clause that obligates Contractor to pay the first-tier subcontractor for satisfactory performance under its subcontract within 10 days out of such amounts as are paid to Contractor by City under the Contract;

1. A clause that requires Contractor to provide a first-tier subcontractor with a standard form that the first-tier subcontractor may use as an application for payment or as another method by which the subcontractor may claim a payment due from Contractor.

1. A clause that requires Contractor, except as otherwise provided in this paragraph, to use the same form and regular administrative procedures for processing payments during the entire term of the subcontract. Contractor may change the form or the regular administrative procedures Contractor uses for processing payments if Contractor

0. Notifies the subcontractor in writing at least 45 days before the date on which Contractor makes the change; and

0. Includes with the written notice a copy of the new or changed form or a description of the new or changed procedure.

1. An interest penalty clause that obligates Contractor, if payment is not made within 30 days after receipt of payment from City, to pay to the first-tier subcontractor an interest penalty on amounts due in the case of each payment not made in accordance with the payment clause included in the subcontract pursuant to paragraph (a) of this subsection. Contractor or first-tier subcontractor shall not be obligated to pay an interest penalty if the only reason that Contractor or first-tier subcontractor did not make payment when payment was due is that Contractor or first-tier subcontractor did not receive payment from City or Contractor when payment was due. The interest penalty:

1. Applies to the period that begins on the day after the required payment date and that ends on the date on which the amount due is paid; and

1. Is computed at the rate specified in ORS 279C.515(2).

1. A clause that requires first-tier subcontractors to include a payment clause and an interest penalty clause that conforms to the standards of subsection (3) of this section in each of the first-tier subcontractor’s subcontracts and to require each of the first-tier subcontractor’s subcontractors to include such clauses in the first-tier subcontractors’ subcontracts with each lower-tier subcontractor or supplier.

1. Minimum Wage Rates. Contractor shall comply fully with the provisions of ORS 279C.800 through 279C.875. Documents establishing these conditions, as determined by the Commissioner of the Bureau of Labor and Industries (BOLI) are identified in the Supplemental Conditions. Contractor shall pay workers at not less than the specified minimum hourly rate of wage, and shall include that requirement in all subcontracts.

Each worker in each trade or occupation employed in the performance of the Construction Contract, either by Contractor, subcontractor or other person doing or contracting to do or contracting for the whole or any part of the work on the Construction Contract, must be paid no less than the applicable state prevailing rate of wage, or the applicable federal prevailing rate of wage whichever is higher. This project is/is not subject to federal wage rates.

The state prevailing wage rates to be paid under the state prevailing wage rate law are set out in the BOLI Publication entitled “Prevailing Wage Rates for Public Works Contracts in Oregon” (Region 2) dated Choose an item. [insert most recent publication date]” and all applicable amendments and corrections to amendments subsequently issued and dated _________________ [fill in date(s) of amendments], up to and including date of first advertisement Click or tap to enter a date.. The publication is available at http://www.oregon.gov/boli/WHD/PWR/Pages/pwr_state.aspx. The federal wage rates to be paid under the federal Davis-Bacon Act are available at http://www.wdol.gov/. BOLI staff are available to assist in determining the applicable wage rates by calling (971) 673-0839.

1. Payroll Certification.

15. In accordance with ORS 279C.845, Contractor and every subcontractor shall submit written certified payroll statements to the City on the form prescribed by the Commissioner of the Bureau of Labor and Industries, certifying:

0. The hourly rate of wage paid each worker which Contractor or the subcontractor has employed on the Work, and

0. That no worker employed on the project has been paid less than the prevailing rate of wage or less than the minimum hourly rate of wage specified in the Contract.

15. The certified statement shall be verified by the oath of Contractor or Contractor’s surety or subcontractor or the subcontractor’s surety that Contractor or subcontractor has read the certified statement that Contractor or subcontractor knows the contents of the certified statement and that to Contractor or subcontractor’s knowledge the certified statement is true.

15. The certified statement shall set out accurately and completely Contractor’s or subcontractor’s payroll records, including the name and address of each worker, the worker’s correct classification, rate of pay, daily and weekly number of hours worked and the gross wages the worker earned upon the public works during each week identified in the certified statement.

15. Contractor shall deliver or mail each certified statement required by subsection (a) of this section to the City. Certified statements for each week during which Contractor or subcontractor employs a worker for the Work shall be submitted once a month, by the fifth business day of the following month.

15. Pursuant to ORS 279C.845(7), if Contractor is required to file certified statements under this section, the City shall retain 25% of any amount earned by Contractor on the Construction Contract until Contractor files the certified statements required by this section, regardless of whether a subcontractor has failed to file certified statements required by this section. City shall pay Contractor the amount retained under this subsection within 14 days after Contractor files the certified statements as required by this section, regardless of whether a subcontractor has failed to file certified statements as required by this section.

15. Notwithstanding ORS 279C.555, Contractor shall retain 25% of any amount earned by a first-tier subcontractor on the Construction Contract until the subcontractor has filed with the City certified statements as required by this section. Contractor shall verify that the first-tier subcontractor has filed the certified statements before Contractor may pay the subcontractor any amount retained under this subsection. Contractor shall pay the first-tier subcontractor the amount retained under this subsection within 14 days after the subcontractor files the certified statements as required by this section.

15. Contractor and subcontractors shall preserve the certified statements for a period of three years from the date of completion of the Construction Contract.

1. Modification. Any modification of the provisions of this Construction Contract shall not be enforceable unless first reduced to writing and signed by both parties. A modification is a written document, contemporaneously executed by City and Contractor, which increases or decreases the cost to City over the agreed sum or changes or modifies the Project or the Project Construction Schedule. Any such modification shall be effective only in the specific instance and for the specific purpose identified in the modification.

1. No Conflicts of Interest. Contractor represents and warrants that no employee of the City, or any partnership or corporation in which a City's employee has an interest, will or has received any remuneration of any description from Contractor, either directly or indirectly, in connection with the letting or performance of this Construction Contract, except as specifically declared in writing.

1. Notices. All notices required to be given by one Party to the other and all requests for payment shall be deemed given when mailed to the parties at the following address:

1. Bonds.

19. Faithful Performance and Labor and Material Payment Bonds. Contractor shall furnish two bonds, a Faithful Performance Bond and Labor and Material Payment Bond, in a form acceptable to the City Attorney in the amount of ______________________________________________________ dollars and ___________ cents ($_________________________), with _______________________ of ________________________ as surety to insure full compliance, execution and performance of this Construction Contract by Contractor in accordance with all its terms and provisions. Contractor shall warrant all equipment, materials and work performed under this Construction Contract for a two-year period following written acceptance of the project by the City, to be of the quality required and to be fit for the purpose intended under the Construction Contract for the project, and agrees to provide the City with security against the cost to remedy any defects imminent or evident in the materials or work within that two-year period. Contractor shall provide security or securities that are not “surplus lines carriers.”

19. Public Works Bond. Before starting Work, Contractor shall file with the Construction Contractors Board, and maintain in full force and effect, the separate public works bond in the amount of $30,000 as required by ORS 279C.836. This bond is in addition to the performance and payment bond requirements and is required for projects equal to or greater than $100,000.

Contractor shall also include in every subcontract a provision requiring the subcontractor to have a public works bond filed with the Construction Contractors Board before starting Work, unless otherwise exempt, and shall verify that the subcontractor has filed a public works bond before permitting the subcontractor to start work.

1. Insurance. Contractor shall, at Contractor’s own expense, procure and maintain the minimum amounts of insurance as described in Exhibit 1 for the duration of the Construction Contract. Insurance shall be provided by a carrier with A.M. Best’s Rating of A- or better and Financial Performance Rating of 7 or better. Insurance carriers shall not be “surplus lines carriers” and shall certify as to such in each certificate. Contractor’s Commercial General Liability Insurance and Automobile Liability Insurance shall apply on a primary basis and be required to respond and pay prior to any other available coverage. In all instances, City’s insurance shall be excess to the limits described in Exhibit 1. Before starting Work on the project, Contractor shall provide satisfactory evidence of this insurance to the City’s Purchasing Manager.

Contractor shall require and ensure that each of its subcontractors who provide labor or services in connection with this Construction Contract provide Oregon Workers’ Compensation Insurance for all of their subject workers and shall keep on file a certificate of insurance from each subcontractor and anyone else directly employed by either Contractor or subcontractor.

1. Indemnity. With regard to Contractor’s performance in connection with or incidental to the Work, but excluding its performance of professional services and the indemnification and hold harmless aspects thereto as set forth below in this Section, Contractor hereby releases and shall indemnify, defend, and hold harmless the City, its officials, employees, agents and volunteers from and against any and all claims, costs, damages, lawsuits, penalties, liens, losses and/or liabilities of any kind or nature, including all expenses of investigating and defending against same, including reasonable attorney fees and costs at trial and on appeal, that arise from or are connected with or are directly or indirectly caused or claimed to be caused in whole or in part by the fault or negligent, reckless or willful acts or omissions of Contractor and/or its agents, employees or subcontractors in performing Work herein; provided, however, that Contractor’s duty to release, indemnify and hold harmless shall not include any liability arising from the established sole negligence or willful misconduct of the City, its officials, employees, agents and volunteers With regard to Contractor’s performance of professional services, Contractor hereby releases and shall indemnify, defend, and hold harmless the City, its officials, employees, agents and volunteers from and against any and all claims, costs, damages, lawsuits, penalties, liens, losses and/or liabilities of any kind or nature, including all expenses of investigating and defending against same, including reasonable attorney fees and costs at trial and on appeal, arising from the willful misconduct or negligent acts, errors or omissions of Contractor and/or its agents, employees or subcontractors associated with the Work.

This section shall survive acceptance of the Work and completion of the Construction Contract, including any applicable warranty period. In any and all claims against City, its officials, employees, agents or volunteers, the amount or type of any workers’ compensation or other benefits paid or payable to an injured person shall not affect Contractor’s obligations of this section, nor shall Contractor’s obligations under this section be affected by any limitation in the amount or type of liability or the amount or type of available insurance coverage.

1. Beaverton Equity Procurement Program Requirements.

22. General. Contractor shall comply with Beaverton Purchasing Code Section 46-0330 and the GFE Program requirements provided in the ITB.

22. Changes in Work Committed to COBID-certified Subcontractors. If City changes, reduces, or deletes Work at the time of contract award that Contractor subcontracted to COBID-certified subcontractors, Contractor is not required to replace the Work but may do so. If Contractor proposes any change involving a subcontracted COBID-certified subcontractor, Contractor shall notify the COBID-certified subcontractor of the proposed change, reduction, or deletion of any Work committed at the time of contract award prior to executing the Contract Change Order. Contractor shall make every effort to maintain the contracted COBID-certified firm percentage.

22. Termination and Substitution of COBID-certified Subcontractors.

2. Contractor shall not replace a COBID-certified subcontractor with another subcontractor either before Contract award or during the term of the Construction Contract. If Contractor replaces a COBID-certified subcontractor, Contractor shall replace that subcontractor with another COBID-certified subcontractor, or make good-faith efforts to do so.

2. Before terminating or replacing a COBID-certified subcontractor that has a signed contract with Contractor, Contractor shall notify City in writing and confer with City. A failure to confer with City before terminating or replacing a COBID-certified subcontractor is a material breach of the Construction Contract, and City, at its option, may terminate the Construction Contract under the procedures set out in Section 24 (Termination for Breach).

22. Payment to Subcontractors. Contractor shall pay each subcontractor for satisfactory performance of its contract no later than 10 calendar days from receipt of each payment Contractor receives from the City. Contractor shall return retainage payments to each subcontractor within 10 calendar days after the subcontractor’s work is satisfactorily completed. Contractor may only delay or postpone retainage payment for good cause and after Contractor receives the written approval of the Project Manager.

22. Submittal of Form. Contractor shall submit a completed, signed original “Beaverton Monthly Subcontractor Payment and Utilization Report,” which is Form 3 of the GFE Program. Contractor shall submit that form when a progress or final payment has been made to each subcontractor or supplier or when any held retainage is returned to a subcontractor or supplier. Contractor shall submit the form no later than the 15th day of each month. At the completion of the project, Contractor shall submit a final form indicating the total amounts paid to all subcontractors and suppliers.

22. Records. Contractor shall maintain records of all subcontracts with COBID-certified firms and records of materials purchased from COBID-certified suppliers. Such records shall show the name and business address of each COBID-certified subcontractor or supplier, and the total dollar amount actually paid to each COBID-certified subcontractor or vendor.

22. Compliance. City reserves the right, at all times during the Contract, to monitor Contractor’s compliance and enforce the terms of the Beaverton Equity Procurement Program and COBID requirements if Contractor fails to comply with them. Contractor shall be bound by all representations regarding the Beaverton Equity Procurement Program prior to contract award and all representations made by Contractor regarding replacing a COBID-certified subcontractor during the performance of this Construction Contract.

1. Termination.

Termination for Breach. City may, without prejudice to any other right or remedy, and after giving Contractor seven days’ written notice and an opportunity to cure, terminate the Construction Contract in whole or in part if any one of the following occurs:

23. Contractor voluntarily or involuntarily seeks protection under the U.S. Bankruptcy Code and Contractor as debtor-in-possession or the trustee for the estate fails to assume the Contract within a reasonable time.

23. Contractor makes a general assignment for the benefit of Contractor’s creditors.

23. A receiver is appointed on account of Contractor’s insolvency.

23. Contractor repeatedly fails to make prompt payment to subcontractors or for material or labor.

23. Contractor persistently disregards laws, ordinances, or reasonable instructions of the City.

23. Contractor is prevented from completing the Work for reasons beyond the control of the City.

23. Contractor, for reasons beyond its control, cannot complete the Work.

23. Contractor willfully fails or refuses to perform faithfully the Construction Contract according to all its terms and conditions.

23. Contractor is in material breach of any part of the Construction Contract or the Contract Documents.

23. Contractor repeatedly refuses or fails to supply an adequate number of skilled workers or proper materials to carry on the project as required by the Contract Documents, or fails to perform the project in a timely manner.

9. A failure to perform the project in a timely manner includes, but is not limited to, the following:

0. Failure to submit an executed Construction Contract with bonds and insurance certificates within __ days after notice of Contract award.

0. Failure to obtain required permits.

0. Failure to submit documentation that materials and equipment needed for the work are and will be available.

0. Failure to submit documentation that materials and equipment needed for the work have been ordered from suppliers within __ days after submitting the executed Construction Contract.

0. Failure to submit a work schedule acceptable to the City prior to the scheduled date of the pre-construction conference or failure to submit a revised work schedule, if a revised work schedule is necessary.

0. Failure to submit a traffic control plan within the time specified by Sections 00180.41 and 00225.05 of the Standard Specifications.

0. Failure to install traffic control devices, if any are required, according to the approved schedule.

0. Failure to request utility locates within __ work days after receiving the City’s Notice to Proceed.

0. Failure to begin, or perform a significant amount of work on, a task that is on the critical path in the latest work schedule within __ work days after the start date shown for that tasks in the schedule.

0. Failure to submit a request for a delayed start and a justification for the request, or a failure to obtain the City’s approval of the request of the delayed start.

Rights and Remedies.

1. If Section 24(j) occurs, City may:

0. Require Contractor to replace one or more poorly performing employees,

0. Require Contractor to replace a subcontractor, or

0. Require Contractor to replace poorly performing construction equipment.

1. If any one of the events described in 24(a) through 24(j) occurs, City may:

1. Exercise all rights and remedies available at law or in equity;

1. Without Contractor or surety’s obstruction, take possession of the premises and all materials and appliances and finish the project by whatever method it deems expedient; or

1. Withhold further payment until the Work is completed.

If City takes possession of the premises and all materials and appliances and finishes the project, City shall determine the total amount Contractor would have been entitled to receive for the work, under the terms of the Construction Contract, had Contractor completed the work. If the difference between that total and the sum of all amounts previously paid to Contractor (“Unpaid Balance”) exceeds the expense the City incurred to complete the work, which includes expenses for additional managerial and administrative services, the excess will be paid to Contractor, with the surety’s consent. If the City’s expenses exceeds the Unpaid Balance, then Contractor and its surety shall pay City the amount of the excess as a joint and several obligation. The City shall determine and certify the expense incurred by the City.

Termination for Convenience. City may terminate the Construction Contract, in whole or in part, whenever City determines that termination of the Construction Contract is in the public interest. City shall provide Contractor with seven days’ written notice of termination. After the notice, Contractor shall provide City with immediate and peaceful possession of the premises and materials located on and off the premises for which Contractor received a progress payment. Under no circumstances is Contractor entitled to lost profits for the project due to termination. City shall use the Standard Specifications and all applicable updates and corrections to the Special Provisions, as modified by the City’s General Requirements and Special Provisions, to determine payment owed upon termination for convenience.

Action upon Termination. When Contractor receives a notice of termination, except as directed otherwise by City, Contractor shall immediately cease placing further subcontractors or orders for materials, services, or facilities. Contractor shall terminate all subcontracts or orders to the extent the subcontracts or orders relate to the project. With the prior written approval of the City, Contractor shall settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts and orders.

As directed by the City, City shall, upon termination, transfer title and deliver to the City all project documents, information, and other property that, if the Contract had been completed, would be required to be furnished to the City.

When the Contract, or any portion thereof, is terminated before completion of all items of work in the Contract, City will pay for actual items of work completed under the Construction Contract. City will pay for items of partially-completed work, if City and Contractor mutually agree to the payment. Contractor shall not claim any loss of anticipated profits.

Termination of the Construction Contract, or a portion thereof, shall not relieve Contractor of responsibility for the work completed, nor shall it relieve the surety of its obligation for any just claims arising from the work performed. Neither Contractor nor the surety shall be relieved of damages or losses suffered by the City because of Contractor’s breach of the Construction Contract.

1. Waiver. City’s failure to enforce a provision of the Construction Contract shall not constitute a continuing waiver, shall not constitute a relinquishment of City’s right to performance in the future, and shall not operate as a waiver of City’s right to enforce any other provision of this Construction Contract.

1. Counterparts. This Construction Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of the Construction Contract shall constitute an original. The exchange of signed copies of this Construction Contract by electronic mail in Portable Document Format (PDF) or its equivalent shall constitute effective execution and delivery of this Construction Contract. Signatures on the copies sent through electronic mail shall be deemed to be their original signatures for all purposes.

1. Severability. If any term or provision, or portions thereof, of this Construction Contract is declared by an arbitrator or court of competent jurisdiction to be illegal, invalid, void, or otherwise unenforceable, each such term or provision shall be enforced only to the extend it is not in violation of law or is not otherwise unenforceable. All other provisions and requirements of this Construction Contract shall remain in full force and effect insofar as possible to preserve the lawful anticipated benefits of this Construction Contract to the Parties.

1. Disclosure of Social Security Number. Contractor shall provide Contractor’s Social Security Number (SSN) unless Contractor provides an Employer Identification Number (EIN) or other valid form of Taxpayer Identification Number (TIN). SSN is required pursuant to Beaverton Purchasing Code 47-0636. SSN provided pursuant to this authority will be used for the administration of state, federal, and local tax laws. Contractor’s TIN will be reported to the Internal Revenue Service (IRS) under the name and TIN submitted. See IRS 1099 for more information. Information not matching IRS records may subject Contractor to backup withholding.

1. Governing Law. The Construction Contract is governed by the laws of the State of Oregon. Any claim, action, suit, or proceedings between City and Contractor shall be brought in the Circuit Court of Washington County, Oregon or if the claim must be brought in a federal forum, the U.S. District Court for the District of Oregon.

1. Merger. This Contract constitutes the entire and integrated agreement between the Parties with regard to the subject matter herein and supersedes all prior contracts, negotiations, representations or agreements, either written or oral of such subject matter. There are no understandings, agreements, representations, oral or written, not specified herein regarding the Construction Contract.

The Parties, by their signatures below, acknowledge having read and understood the Contract and agree to be bound by its terms and conditions.

AGREED TO BY THE PARTIES:

CITY OF BEAVERTON CONTRACTOR

BY: BY: _____________________________________

City Manager

TITLE: ___________________________________

DATE:

DATE: ___________________________________

Approved as to legal sufficiency:

City of Beaverton Business License #: _________

COBID #: ________________________________