Construction Contract Template.docx

Construction / Public Improvement Contract

Contract name / Brief Description

This Contract is entered into by and between the Northern Wasco County NWCPUD, hereinafter called NWCPUD, and company name, hereinafter called Contractor.

WHEREAS, NWCPUD has need for the services of an independent Contractor with the particular training, knowledge, and experience offered by the Contractor; and WHEREAS, NWCPUD has negotiated the following agreement in The Dalles, Oregon, and Contractor has agreed to deliver its services in The Dalles, Oregon;

NOW THEREFORE, in consideration of a sum agreed to by the Parties, the Contractor agrees to perform the services as described in this Contract, in accordance with all requirements, terms and conditions of this contract, as set forth below:

1. Term, Duration, Termination This Contract shall become effective on the date this Contract has been signed by every party herein contained. Unless terminated or extended, this Contract shall expire when NWCPUD accepts Contractor's performance, or on 12/31/2019, whichever date occurs first. Expiration shall not extinguish or prejudice NWCPUD’s right to enforce this Contract with respect to any breach of Contractor warranty or any default or defect in Contractor performance that has not been cured.

NWCPUD reserves the right to terminate this contract at any time with 30 days’ written notice. If terminated, NWCPUD agrees to pay Contractor for work performed prior to the termination date if such work was performed in accordance with the Contract.

2. Statement of Work The statement of work (the “Work”), including the delivery schedule for such Work and description of outcomes (“Deliverables”), is contained in Attachment A attached and incorporated by reference into this Contract. Contractor agrees to perform the Work in accordance with the terms and conditions of this Contract.

3. Consideration & Payments The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $ dollar amount.

Time is of the Essence in the performance of this agreement.

Invoices shall be submitted to NWCPUD, employee name, and to accounting@nwascopud.org.

NWCPUD shall pay Contractor not more than once per month upon Contractor's submission of a sufficiently detailed invoice for Work performed and Deliverables, Developments or Work Products delivered to NWCPUD during that month. Such invoices shall describe all Work performed or Deliverables, Developments or Work Products delivered with particularity and by whom it was performed, including name and job title and reference to the specific work activity. The invoices shall reference a PO number, if one exists, and shall include the total amount invoiced to date by Contractor prior to the current invoice. When submitting invoice, contractor shall also include NWCPUD’s referenced work-order numbers and an hourly break down of time per employee using NWCPUD’s G/L numbers to reference installation of new facilities and removal of existing facilities. NWCPUD will have the right to review each such invoice for compliance with the requirements and any other pertinent provisions of this Contract. NWCPUD will make payment in accordance with its regular payment schedule; Net 30 days from receipt of a valid, undisputed invoice.

Retainage - To secure Contractor performance of its obligations hereunder, NWCPUD may withhold an aggregate amount of up to five percent (5%) of the Contract Price (the Retainage), by withholding from each payment paid to Contractor by NWCPUD other than the final payment an amount equal to five percent (5%) of the amount invoiced by Contractor. Each Invoice submitted by Contractor shall specify the amount of retainage attributable to, and to be withheld from, amounts due under such Invoice. Notwithstanding the foregoing, at such time as the project is deemed to be ninety percent (90%) complete, NWCPUD shall pay to Contractor an amount equal to fifty percent (50%) of the full amount of Retainage withheld by NWCPUD to date. In the event that amounts are due under this Agreement from Contractor to NWCPUD, and such amounts are not paid when due, NWCPUD shall have the right to withhold additional amounts from NWCPUDs payments to Contractor equal to the amount owing by Contractor. NWCPUD will pay the remaining retainage upon satisfactory project completion and upon receipt of the final request for payment.

4. Deliverable Review & Approval.

All work is subject to inspection, evaluation, and approval by NWCPUD personnel. Should NWCPUD determine that corrections or modifications are necessary in order to accomplish its intent, NWCPUD may direct the Contractor to make such changes. The Contractor will not unreasonably withhold such changes. Each Deliverable provided by Contractor shall be reviewed by NWCPUD for compliance with the Statement of Work. If NWCPUD determines that any of the Work is not acceptable and that any deficiencies are the responsibility of the Contractor, NWCPUD shall prepare a detailed written description of any deficiencies and an associated time frame for correction and deliver such notice to Contractor. Contractor shall correct any deficiencies at no cost to NWCPUD.

Substantial failure of the Contractor to perform the contract may cause NWCPUD to terminate the contract. In this event, NWCPUD may require the Contractor to reimburse monies paid (based on the identified portion of unacceptable work received) and may seek associated damages.

When NWCPUD determines that all Deliverables conform in accordance with the Statement of Work; then NWCPUD shall notify Contractor that Final Acceptance of all Deliverables has occurred.

Change Orders - Changes to the Work or terms of this Contract shall be determined by written agreement of the parties and shall be made on Change Order form as reflected as Appendix “B”.

When a change is ordered by NWCPUD, as provided herein, a Change Order shall be executed by the NWCPUD and contractor before any Change Order work is performed. When requested, Contractor shall provide a detailed proposal for evaluation by the NWCPUD, including details on proposed cost. NWCPUD shall not be liable for any payment to Contractor, or claims arising there from, for Change Order work which is not first authorized in writing. All terms and conditions contained in the Contract Documents shall be applicable to Change Order work. Change Orders shall be issued on the form attached as Appendix “B” and shall specify any change in time required for completion of the work caused by the Change Order and, to the extent applicable, the amount of any increase or decrease in the Contract Price.

5. Remedies.

If a conflict arises between the parties in the implementation of this Contract, the parties agree to work in good faith toward a cooperative resolution. If, despite the good faith efforts, either party fails or refuses to complete its obligations under this Contract, the party not in breach shall have all remedies available at law to complete compliance by the other party and to recover monetary damages necessary to make the non-breaching party whole. In addition, failure of Contractor to meet the obligations set forth herein shall allow NWCPUD to require the return or repayment of funds received under this Contract.

6. Insurance Contractor shall obtain insurance, at Contractor’s expense, and keep in effect during the term of this contract. Prior to work commencing, Contractor shall provide certificates of insurance listing NWCPUD as additionally insured on liability coverages, except professional liability if included, with respect to activities performed under this contract as described below:

a. Commercial / General Liability Insurance, covering bodily injury and property damage. This insurance shall include personal injury coverage, contractual liability coverage and products/completed operations liability. Combined single limit per occurrence shall not be less than $2,000,000. Each annual aggregate limit shall not be less than $4,000,000.

b. Automobile Liability Insurance, this coverage may be written in combination with the Commercial General Liability Insurance. Combined single limit per occurrence shall not be less than $2,000,000, or the equivalent $4,000,000 aggregate, and a $1,000,000 umbrella or excess liability.

c. Workers' Compensation. All subject employers working under this contract are either employers that will comply with ORS 656.017 which requires them to provide Oregon workers' compensation coverage that satisfies Oregon law for all their subject workers, or employers that are exempt under ORS 656.126. [2003 c.794 §76c] In addition, Contractor will obtain, at Contractor's expense, and keep in effect during the term of this contract, Employers Liability insurance with a limit of not less than $1,000,000.

d. Professional Liability Insurance with limits of (i) $1,000,000 per claim and (ii) $1,000,000aggregate, with coverage to be written on a claims-made form. (may delete if not applicable)

e. Notice of Cancellation or Change. There shall be no cancellation, material change, potential exhaustion of aggregate limits or non-renewal of insurance coverage(s) without 30 days' written notice from Contractor or its insurer(s) to NWCPUD. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract by NWCPUD.

f. Waiver of Insurance Requirements. Contractor’s failure to provide certificates of insurance as specified herein and/or in the manner specified herein does not constitute a waiver of the insurance requirements. Any waiver of the insurance requirements will only be made in writing.

g. Tail Coverage. If any of the required liability insurance is on a “claims made” basis, “tail” coverage will be required at the completion of this contract for a duration of 24 months, or the maximum time period reasonably available in the marketplace. Contractor shall furnish certification of “tail” coverage as described or continuous “claims made” liability coverage for 24 months following Contract completion. Continuous “claims made” coverage will be acceptable in lieu of “tail” coverage, provided its retroactive date is on or before the effective date of this Contract. If Continuous “claims made” coverage is used, Contractor shall be required to keep the coverage in effect for a duration of not less than 24 months from the end of the Contract. This will be a condition of the final acceptance of work or services.

7. Hold Harmless and Indemnity Subject to the limitations of liability for public bodies set forth in the Oregon Tort Claims Act (ORS 30.260 to 30.330) each party shall hold harmless and indemnify the other, its officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses resulting from, arising out of, or relating to any error, omission, breach of contractual duty, or negligent act resulting from the indemnifying party’s own acts or omissions.

Each party agrees to indemnify, defend and save harmless the other party, its officers, agents, and representatives, from and against any suits, actions, legal or administrative proceedings, claims, debts, demands, damages, losses, penalties, liabilities, interest, attorneys’ fees, costs and expenses (any of the foregoing are referred to herein as “Loss” and collectively as Losses”), arising from or related to the Services and attributable to either a breach by that party of its obligations hereunder or any negligent act, error, or omission, or willful misconduct of anyone acting under the breaching party’s direction of control or any of that party’s Contractors or subcontractors; or arising from or related to any breach or inaccuracy of any representation or warranty of that party made in this Agreement.

8. Contact Persons.

Contractor shall designate one or more person(s) responsible for Contractor's work under this Contract. Contractor shall provide NWCPUD the names, addresses and telephone numbers of such person(s) and shall keep this information current at all times. The representative shall be thoroughly familiar with the terms of the Contract and shall have the technical knowledge to perform the work.

NWCPUD’s contacts for this contract are:

Employee name, title, phone number Employee name, title, phone number

Contractor’s contact for this contract is:

Employee name, title, phone number

9. Contract Documents This agreement, including the documents, specifications, drawings, attachments, and instruments referred to in this agreement, constitutes the entire agreement and understanding of the parties with respect to the subject matter of this agreement. There are no provisions, terms, conditions or obligations other than those contained herein. This agreement supersedes all prior understandings, agreements, communications and/or representations, whether written or oral, among the parties with respect to such subject matter.

10. Governing Law/Jurisdiction/Severability This agreement and the rights and obligations of the parties under it are governed by and interpreted in accordance with the laws of the State of Oregon. If suit of action is authorized herein to resolve any dispute or claim arising out of or related to this Contract or the interpretation or breach hereof, jurisdiction shall be exclusively in the State of Oregon with venue in Wasco County Circuit Court.

If any term or provision of this Contract is declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the agreement did not contain the particular term or provision held to be invalid.

11. Attorney Fees and Costs If a suit or action is instituted to interpret or enforce the provisions of this Contract, the prevailing party shall be entitled to recover, from the losing party, its reasonable attorney fees, and all other costs and expenses incurred and reasonably necessary as determined by the judge or arbitrator at the proceedings, in addition to all other amounts provided by law.

12. Amendments This contract may be amended by mutual agreement of the parties. To be effective, all amendments shall be in writing and signed by authorized representatives of each party.

13. Successors and Assigns Neither this Agreement nor any of the rights, interests or obligations provided in this Agreement may be assigned, subcontracted or otherwise transferred by one party without the prior written consent of the other party. Failure of one party to obtain such prior written consent of the other party shall render the attempted assignment, subcontract, or other transfer null and void. In the event the other party approves and assignment, subcontract or other transfer, the same terms and conditions will apply.

This Agreement will be binding on and inure to the benefit of the parties and their respective successors, and to the extent otherwise assignable or transferrable pursuant to the terms of this Agreement, permitted assigns and transferees.

14. Compliance with Applicable Law Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable, including, but not limited to:

ORS 279C.505 - Conditions concerning payment, contributions, liens, withholding, drug testing.

Contractor shall:

(1) Make payment promptly, as due, to all persons supplying to the contractor labor or material for the performance of the work provided for in the contract.

(2) Pay all contributions or amounts due the Industrial Accident Fund from the contractor or subcontractor incurred in the performance of the contract.

(3) Not permit any lien or claim to be filed or prosecuted against NWCPUD on account of any labor or material furnished.

(4) Pay to the Department of Revenue all sums withheld from employees under ORS 316.167 (Withholding of tax required).

(5) Contractor shall demonstrate that an employee drug testing program is in place.

ORS 279C.515 - Conditions concerning payment of claims by public officers, payment to persons furnishing labor or materials and complaints.

(1) If the contractor fails, neglects or refuses to pay promptly a person’s claim for labor or services that the person provides to the contractor or a subcontractor in connection with the public improvement contract as the claim becomes due, NWCPUD 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 the contractor by reason of the contract.

(2) If the contractor or a first-tier subcontractor fails, neglects or refuses to pay a person that provides labor or materials in connection with the public improvement contract within 30 days after receiving payment from NWCPUD, the 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 (Contractor’s relations with subcontractors) (4) and that end upon final payment, unless payment is subject to a good faith dispute as defined in ORS 279C.580 (Contractor’s relations with subcontractors). The rate of interest on the amount due is nine percent per annum. The amount of interest may not be waived.

(3) If the contractor or a subcontractor fails, neglects or refuses to pay a person that provides labor or materials in connection with this agreement, the person may file a complaint with the Construction Contractors Board, unless payment is subject to a good faith dispute as defined in ORS 279C.580 (Contractor’s relations with subcontractors).

(4) Paying a claim in the manner authorized in this section does not relieve the contractor or the contractor’s surety from obligation with respect to an unpaid claim.

ORS 279C.520 concerning hours of labor.

Contractor may not employ an employee for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or when the public policy absolutely requires otherwise, and in such cases, except in cases of contracts for personal services as defined in ORS 279C.100 (Definitions for ORS 279C.100 to 279C.125), the contractor shall pay the employee at least time and a half pay for:

(1) All overtime in excess of eight hours in any one day or 40 hours in any one week if the work week is five consecutive days, Monday through Friday; or (ii) 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 (B) All work the employee performs on Saturday and on any legal holiday specified in ORS 279C.540 (Maximum hours of labor on public contracts).

(2) Contractor shall comply with the prohibition set forth in ORS 652.220 (Prohibition of discriminatory wage rates based on sex), that compliance is a material element of the contract and that a failure to comply is a breach that entitles the contracting agency to terminate the contract for cause.

(3) Contractor may not prohibit any of the 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 another person.

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

ORS 279C.530 - Condition concerning payment for medical care and providing workers’ compensation.

(1) Contractor shall promptly, as due, make payment to any person, copartner ship, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the contractor, of all sums that the contractor agrees to pay for the services and all moneys and sums that the 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.

(2) All subject employers working under the contract are either employers that will comply with ORS 656.017 (Employer required to pay compensation and perform other duties) or employers that are exempt under ORS 656.126 (Coverage while temporarily in or out of state).

ORS 279C.380 - Performance bond, Payment bond, Waiver of bonds. (this section applies only if contract is $100,000 or greater)

(1) Except as provided in ORS 279C.390 (Exemption of contracts from bid security and bonds), Contractor shall promptly execute and deliver to the contracting agency the following bonds:

a) A performance bond in an amount equal to the full contract price conditioned on the faithful performance of the contract in accordance with the plans, specifications and conditions of the contract, for the protection of NWCPUD. If this contract provides both design and construction, the obligation of the performance bond for the faithful performance of the contract required by this paragraph must also be for the preparation and completion of the design and related services covered under the contract.

b) A payment bond in an amount equal to the full contract price, solely for the protection of claimants under ORS 279C.600 (Right of action on payment bond or public works bond of contractor or subcontractor).

(2) Each performance bond and each payment bond must be executed solely by a surety company or companies holding a certificate of authority to transact surety business in this state. The bonds may not constitute the surety obligation of an individual or individuals. The performance and payment bonds must be payable to NWCPUD, and in a form approved by NWCPUD.

ORS 279C.840 - Payment of prevailing rate of wage. (this section is mandatory for all contracts over $50,000)

(1) The hourly rate of wage that the contractor or subcontractor must pay to workers upon all public works may not be less than the prevailing rate of wage for an hour’s work in the same trade or occupation in the locality where the labor is performed. A contractor or subcontractor may discharge the obligation to pay the prevailing rate of wage by making the payments in cash, by making contributions of a type described in ORS 279C.800 (Definitions for ORS 279C.800 to 279C.870) (1)(a), or by assuming an enforceable commitment to bear the costs of fringe benefits of a type described in ORS 279C.800 (Definitions for ORS 279C.800 to 279C.870) (1)(b), or any combination of payments, contributions and assumption of costs, where the aggregate of any such payments, contributions and assumption of costs is not less than the prevailing rate of wage. The contractor or subcontractor shall pay all wages due and owing to the contractor’s or subcontractor’s workers upon public works on the regular payday established and maintained under ORS 652.120 (Establishing regular payday).

15. Ownership of Work Products All work products of Contractor arising or resulting from this Agreement are the property of NWCPUD. This Agreement, and any and all records or other documents pertaining to this Agreement, including Contractor’s work products, are public records and may be subject to public disclosure according to state or federal law.

16. Confidential Information/Non-Disclosure Contractor acknowledges that it or its employees, subcontractors or agents may, in the course of performing their responsibilities under this Contract, be exposed to or acquire information that is the confidential information of NWCPUD or its clients. Any and all information provided by NWCPUD and marked confidential or identified as confidential in a separate writing, shall be deemed to be confidential information. Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contract uses in maintaining the confidentiality of its own confidential information and not to copy, reproduce, sell, assign license, market, transfer, or otherwise disclose to third parties.

Contractor shall, upon presentation by NWCPUD, execute Non-Disclosure Agreement and such agreement shall become part of the contract documents and attached herein.

17. Safety and Protection Contractor is required to attend safety orientation at NWCPUD prior to the start of work and shall comply with the applicable requirements of the training.

Contractor shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the work.

Contractor shall conduct daily tailboard meetings of Job Hazard Analysis prior to starting daily work and provide copies of those minutes at the end of each shift to NWCPUD contact. Hazard review shall include, but not be limited to, seasonal fire hazards.

18. Contractor’s General Warranty and Guarantee Contractor warrants and guarantees to NWCPUD that all work will be in accordance to contract documents and will not be defective. Such warranty and guarantee excludes defects or damages caused by abuse, modification, or improper maintenance or operation by persons other than Contractor, subcontractors, suppliers, or any other individual or entity for whom Contractor is responsible, or for normal wear and team under normal usage, or for any claim made more than 2 years beyond the date the contractor has completed the work.

EXECUTION

NWCPUD:

NWCPUD signature Date

NWCPUD signature Date

PO number: ______________________

Contractor:

Vendor signature Date

Company Name and address

ATTACHMENT A

STATEMENT OF WORK

Services/Work Product Description:

Timeline of Deliverables:

Rates and Compensation:

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