CONSTRUCTION_GENERAL_TERMS_(4).pdf

TABLE OF CONTENTS

1. DEFINITION OF TERMS/GENERAL PROVISIONS ........................................ 1-5

1.1 DEFINITION OF TERMS

1.2 SCOPE OF WORK

1.3 CONTRACT DOCUMENTS

1.4 INTERPRETATION OF DOCUMENTS

1.5 EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF WORK

1.6 INDEPENDENT CONTRACTOR STATUS

1.7 RETIREMENT SYSTEM STATUS

1.8 GOVERNMENT EMPLOYMENT STATUS

2. ADMINISTRATION OF THE CONTRACT .......................................................5-10

2.1 CONTRACTOR’S RESPONSIBILITY TO MITIGATE

2.2 MATERIALS AND WORKMANSHIP

2.3 PERMITS

2.4 COMPLIANCE WITH ALL GOVERNMENT REGULATIONS

2.5 SUPERINTENDENCE

2.6 INSPECTION

2.7 SEVERABILITY

2.8 ACCESS TO RECORDS

2.9 WAIVER

2.10 ASSIGNMENT/SUBCONTRACT

2.11 SUCCESSORS IN INTEREST

2.12 COUNTY’S RIGHT TO DO WORK

2.13 OTHER CONTRACTS

2.14 ARCHITECT/ENGINEER

3. WAGES AND LABOR ......................................................................................... 10-12

3.1 MINIMUM WAGE RATES ON PUBLIC WORKS

3.2 PAYROLL CERTIFICATION

3.3 PROMPT PAYMENT

3.4 SUBCONTRACTOR REQUIREMENTS

3.5 CONTRIBUTIONS

3.6 LIENS/CLAIMS

3.7 DEPARTMENT OF REVENUE

3.8 WORKER’S COMPENSATION

4. CHANGES IN THE WORK................................................................................. 12-18

4.1 CONTRACT TERMS

4.2 DELAYS

4.3 CLAIMS REVIEW PROCESS

5. PAYMENTS ............................................................................................................ 18-20

5.1 SCHEDULE OF VALUES

5.2 APPLICATIONS FOR PAYMENT

5.3 RETAINAGE

5.4 FINAL PAYMENT

6. JOB SITE CONDITIONS

6.1 USE OF PREMISES

6.2 PROTECTION

6.3 CUTTING AND PATCHING

6.4 CLEANUP

6.5 ENVIRONMENTAL CONTAMINATION

6.6 ENVIRONMENTAL POLLUTION

7. FORCE MAJEURE

8. BONDING AND INSURANCE ................................................................................. -24

8.1 PERFORMANCE SECURITY

8.2 INSURANCE

9. SCHEDULE OF WORK

9.1 CONTRACT PERIOD

9.2 SCHEDULE

10. CORRECTION OF WORK ................................................................................. 25-26

10.1 CORRECTION OF WORK

10.2 WARRANTY WORK

11. SUSPENSION AND/OR TERMINATION OF WORK ................................... 26-28

11.1 COUNTY’S RIGHT TO SUSPEND WORK

11.2 CONTRACTOR’S RESPONSIBILITY

11.3 COUNTY’S RIGHT TO TERMINATE CONTRACT

11.4 COUNTY’S RIGHT TO TERMINATE FOR CONVENIENCE

11.5 ACTION UPON TERMINATION

11.6 ENVIRONMENTAL POLLUTION

12. CONTRACT CLOSE OUT .................................................................................. 29-31

12.1 RECORD DRAWINGS

12.2 OPERATION AND MAINTENANCE MANUAL

12.3 RELEASE OF LIENS AND CLAIMS

12.4 NOTICES

12.5 TRAINING

12.6 EXTRA MATERIALS

12.7 ENVIRONMENTAL CLEAN-UP

12.8 CERTIFICATE OF OCCUPANCY

12.9 OTHER CONTRACTOR RESPONSIBILITIES

13. BID SCHEDULE ENTRIES ................................................................................. 31-32

13.1 LAWS TO BE OBSERVED

13.2 ASSIGNMENT OF ANTICIPATED RIGHTS

1. DEFINITIONS/GENERAL PROVISIONS

1.1 DEFINITION OF TERMS: In the Contract Documents the following terms shall be as defined below:

1. SUPPORT SERVICES - Washington County, Department of Support Services.

2. ARCHITECT/ENGINEER - the person, firm, or corporation, so identified, appointed by the County to make plans and specifications of the Work contemplated by the Contract.

3. BID - a competitive offer, which is binding on the bidder, in which price, delivery

(or project completion), and conformance to specification and the requirements of the Invitation to Bid will be the predominant award criteria.

4. BIDDER - an individual, firm, or corporation who submits a Bid in response to a public contracting agency's Invitation to Bid.

5. CLAIM - a resubmitted change request that has been previously denied by the

County's Authorized Representative.

6. CONTRACT - the written agreement between the Owner and the Contractor describing the Work to be done and the obligations between the parties.

7. CONTRACT DOCUMENTS - consists of the Solicitation Document, Invitation to Bid including any bid addenda, Instructions to Bidders, General Conditions, Special Conditions, if any, accepted Bid, the Contract and Amendments thereto, if any, Performance Bond, Plans, Specifications, approved shop drawings, and approved change orders.

8. CONTRACT PERIOD - set forth in these Contract Documents which shall begin with the issuance of the Notice to Proceed and conclude upon Final Completion.

9. CONTRACT PRICE - the total of the awarded bid amount, including any approved alternates, and any fully executed change orders.

10. CONTRACTOR - the individual, firm, or corporation awarded the Contract for the Work contemplated.

11. DAYS - calendar days, including weekdays, weekends and holidays, unless otherwise specified.

12. DIRECT COSTS - Unless otherwise provided in the Contract Documents, Direct Cost shall be limited to the following: cost of materials, including sales tax and cost of delivery; cost of labor, including social security, old age and unemployment insurance, and fringe benefits required by agreement or custom; worker's compensation insurance; bond premiums; rental value of equipment, and machinery; and the additional costs of field personnel directly attributable to the change.

13. FINAL COMPLETION - the final completion of all requirements under the Contract, including Contract Close-out (Section 12.0) and that the final payment may be made and all retainage, if any, released.

14. FORCE MAJEURE - an inevitable act, event, happening, or occurrence that results entirely from natural causes and is in no sense attributable to human agency.

15. NOTICE TO PROCEED - official written notice from the County indicating that all initial contract requirements, including the Contract, performance and payment bonds, and certificate of insurance, have been fully executed and submitted in a suitable form and that the Contractor may proceed with the Work defined in the Contract Documents.

16. OVERHEAD - The following items shall be included in Contractor's markup

(general and administrative expense, overhead and profit) and shall not be charged as direct cost of the Work: Personnel above the level of foreman (i.e., superintendents and project managers); equipment owned or leased by the Contractor (i.e., job trailers, small tools); expenses of Contractor's offices including personnel; and overhead and general and administrative expenses.

17. COUNTY - Washington County acting through the Department of Support

Services, Facilities Management Division.

18. COUNTY'S AUTHORIZED REPRESENTATIVE - those individuals identified in writing by the County to act on behalf of the County for this project.

19. PLANS - the drawings that show the location, type, dimensions, and details of the work to be done under the contract.

20. PROJECT - the specific work to be performed as described in the Contract Documents.

21. PUNCHLIST - the list of work yet to be completed or deficiencies that need to be corrected in order to achieve final completion of the contract.

22. PURCHASING SUPERVISOR - agent of the issuing agency as identified in the

23. SPECIFICATIONS - this publication and all publications to which are referred in this publication. Also supplemental specifications, special provisions, and documents referred to and/or bound with the Contract Documents; together with all signed, written agreements pertaining to the method and manner of doing the work, or to the quantities or qualities of materials to be furnished under the contract.

24. SUBCONTRACTOR - the individual, firm, or corporation having a direct contract with the Contractor, or another subcontractor, to perform a portion of one or more items of the Work.

25. SUBSTANTIAL COMPLETION - the date when the County accepts in writing the construction, alteration or repair of the improvement to real property or any designated portion thereof as having reached that state of completion when it may be used or occupied for its intended purpose. (Refer also to Section 12.4.)

26. SUBSTITUTIONS - items that are the same or better in function, performance, reliability, quality, and general configuration as that product(s) specified. Approval of the substitute item will be solely determined by the County’s Authorized Representative. The decision of the County's Authorized Representative is final.

27. WASHINGTON COUNTY - the County, its Board of County Commissioners, officers, employees, and agents.

28. WORK - the furnishing of all materials, equipment, labor, and incidentals necessary to successfully complete any individual item or the entire Contract and the carrying out of duties and obligations imposed by the Contract Documents.

1.2 SCOPE OF WORK: The Work contemplated under this Contract includes all labor, materials, transportation, equipment and services for, and incidental to, the completion of all construction work in connection with the project described in the Contract Documents.

The Contractor shall perform other work necessary to render the project complete and usable.

1.3 CONTRACT DOCUMENTS: The Contract Documents consist of the Invitation to Bid including any bid addenda, Instructions to Bidders, General Conditions, Special Conditions, if any, accepted Bid, the Contract and Amendments thereto, if any, Performance and Payment Bonds, Plans, Specifications, approved shop drawings, and approved change orders.

1.4 INTERPRETATION OF DOCUMENTS: The Contract Documents are intended to be complementary. Whatever is called for in one, is interpreted to be called for in all.

However, in the event of conflicts or discrepancies among the Contract Documents, interpretations will be based on the following priorities:

1. The Contract, and Amendments to same, with those of later date having precedence over those of an earlier date;

2. The Special Conditions;

3. The General Conditions of the Contract;

4. Specifications and Plans and notes on Plans.

1.4.1 In the case of an inconsistency between Plans and Specifications or within either document not clarified by addendum, the better quality or greater quantity of Work shall be provided in accordance with the County's Authorized Representative's interpretation.

1.4.2 If the Contractor finds discrepancies in, or omissions from the Contract Documents, or if the Contractor is in doubt as to their meaning, the Contractor shall at once notify the County's Authorized Representative, in writing. Contractor shall not proceed without direction in writing from the County's Authorized Representative.

Contractor proceeds at its own risk if it has not obtained such direction.

1.4.3 Reference to standard specifications, manuals, or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect in the jurisdiction where the project is occurring on the first published date of the Solicitation Document, except as may be otherwise specifically stated.

1.5 EXAMINATION OF PLANS, SPECIFICATIONS, AND SITE OF WORK:

Submission of bid shall certify that the Contractor, before submitting a Bid, has made a careful examination of, and understands, the Contract Documents; has become fully informed as to, and understands, the quality and quantity of materials and the character of the Work required; and has made a careful examination, and understands, the location and conditions of the Work and the sources of supply for materials. The Owner will in no case be responsible for any loss or for any unanticipated costs that may be suffered by the Contractor as a result of the Contractor's failure to acquire full information in advance in regard to all conditions pertaining to the Work. No oral agreement or conversation with any officer, agent, or personnel of the Owner, or with the Architect/Engineer either before or after the execution of this Contract, shall affect or modify any of the terms or obligations herein contained.

1.6 INDEPENDENT CONTRACTOR STATUS: The service or services to be rendered under this Contract are those of an independent contractor. Contractor is not an officer, employee or agent of the County as those terms are used in ORS.30.265.

1.7 RETIREMENT SYSTEM STATUS: Contractor is not a contributing member of the Public

Employees' Retirement System and will be responsible for any federal or state taxes applicable to payment received under this Contract. Contractor will not be eligible for any benefits from these contract payments of federal Social Security, employment insurance, workers' compensation or the Public Employees' Retirement System, except as a self-employed individual.

1.8 GOVERNMENT EMPLOYMENT STATUS

1.8.1 If this payment is to be charged against federal funds, Contractor certifies that it is not currently employed by the federal government. This does not preclude the Contractor from holding another contract with the Federal Government.

1.8.2 Contractor certifies they are not an employee of the State of Oregon, or Washington

County, for purposes of performing work under this Contract.

2. ADMINISTRATION OF THE CONTRACT

2.1 CONTRACTOR'S RESPONSIBILITY TO MITIGATE IMPACTS

2.1.1 The Contractor is responsible to mitigate any impacts to the project, including authorized changes, which may affect cost, schedule, or quality.

2.1.2 The Contractor is responsible for the actions of all its personnel, laborers, suppliers, and subcontractors to the project, in performance of the contract.

2.2 MATERIALS AND WORKMANSHIP: The intent of the Contract Documents is to provide for the construction and completion in every detail of the Work described. All Work shall be performed in a professional manner and unless the means or methods of performing a task are specified elsewhere in the Contract Documents, Contractor shall employ methods that are generally accepted and used by the industry, in accordance with industry standards.

2.2.1 The Contractor is responsible to perform the Work as required by the Contract

Documents. Defective work shall be corrected at the Contractor's expense.

2.2.2 Work done and materials furnished shall be subject to inspection and/or observation and testing by the County's Authorized Representative to determine if they conform to the Contract Documents. Inspection of the Work by the County's Authorized Representative does not relieve the Contractor of responsibility for the Work in accordance with the Contract Documents.

2.2.3 Contractor shall furnish adequate facilities, as required, for the County's Authorized

Representative to have safe access to the Work. (Walkways, railings, ladders, tunnels, platforms, etc.) Producers, suppliers, and fabricators shall also provide proper facilities and access to their facilities.

2.2.4 The Contractor shall furnish samples of materials for testing by the County's

Authorized Representative and include the cost of the samples in the Contract Price.

2.3 PERMITS: Contractor shall obtain and pay for all necessary permits and licenses, except for those specifically excluded in the Special Conditions, for the construction of the Work, for temporary obstructions, enclosures, opening of streets for pipes, walls, utilities, environmental, etc., as required for the project. Contractor shall be responsible for all violations of the law, in connection with the construction or caused by obstructing streets, sidewalks or otherwise. Contractor shall give all requisite notices to public authorities. The Contractor shall pay all royalties and license fees and he shall defend all suits or claims for infringement of any patent rights and save harmless and blameless from loss, on account thereof, Washington County.

2.4 COMPLIANCE WITH ALL GOVERNMENT REGULATIONS: Contractor shall comply with all federal, state and local laws, codes, regulations and ordinances applicable to the Work. Failure to comply with such requirements shall constitute a breach of Contract and shall be grounds for Contract termination. Damages or costs resulting from noncompliance shall be the responsibility of Contractor.

2.4.1 Contractor shall comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations; and

(a) Contractor shall not discriminate against disadvantaged, minority, women, or emerging small business enterprises in the awarding of subcontracts, ORS 279.111.

(b) Contractor shall maintain, in current and valid form, all licenses and certificates required by law, regulation, or this Contract when performing the Work.

(c) Failure to comply with any or all of the requirements of Subsection 2.4.1 shall be a breach of Contract and constitute grounds for Contract termination. Damages or costs resulting from such noncompliance shall be the responsibility of Contractor.

2.4.2 Unless contrary to federal law, Contractor shall certify that it shall not accept a bid or proposal from subcontractors to perform work as described in ORS 701.005 under this Contract unless such subcontractors are registered with the Construction Contractors Board in accordance with ORS 701.035 to 701.055 at the time they submit their bids or proposals to the Contractor.

2.5 SUPERINTENDENCE: Contractor shall keep on the site, during the progress of the

Work, a competent superintendent and any necessary assistants who shall be satisfactory to the County and who shall represent the Contractor on the site.

2.6 INSPECTION

2.6.1 County's Authorized Representative shall have access to the Work at all times.

2.6.2 Inspection of the Work will be made by the County's Authorized Representative at its discretion. Any work found to be not in conformance with the Contract Documents, in the discretion of the County's Authorized Representative, shall be removed and replaced at the Contractor's expense.

2.6.3 As required by the Contract Documents, work done or material used without inspection or testing by the County's Authorized Representative may be ordered removed at the Contractor's expense.

2.6.4 If directed to do so any time before the Work is accepted, the Contractor shall uncover portions of the completed Work for inspection. After inspection, the Contractor shall restore such portions of work to the standard required by the Contract. If the Work uncovered is unacceptable or was done without sufficient notice to the County's Authorized Representative, the uncovering and restoration shall be done at the Contractor's expense. If the Work uncovered is acceptable and was done with sufficient notice to the County's Authorized Representative, the uncovering and restoration will be paid for as a change order.

2.6.5 When the United States government participates in the cost of the Work, or the

County has an agreement with other public or private organizations, or if any portion of the Work is being performed for a third party or in close proximity to third party facilities, representatives of these organizations have the right to inspect the Work affecting their interests or property. Their right to inspect shall not make them a party to the Contract and shall not interfere with the rights of the parties of the Contract. Instructions or orders of such parties shall be transmitted to the Contractor, through the County's Authorized Representative.

2.7 SEVERABILITY: If any 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 Contract did not contain the particular provision held to be invalid.

2.8 ACCESS TO RECORDS

2.8.1 Contractor shall keep, at all times on the work site, a copy of the complete Contract Documents and current as-builts, and shall at all times give the County's Authorized Representative access thereto.

2.8.2 Washington County and its duly authorized representatives shall have access to, for a period not less than three years after acceptance of the project, all books, documents, papers and records of Contractor which are pertinent to the Contract including records pertaining to overhead and indirect cost pools, for the purpose of making audit, examination, excerpts and transcripts. If for any reason, any part of the Contract is involved in litigation, Contractor shall retain all pertinent records until all litigation is resolved. Washington County, and/or its agents will continue to be provided full access to the records during litigation.

2.9 WAIVER: Failure of the County to enforce any provision of this Contract shall not constitute a waiver or relinquishment by the County of the right to such performance in the future nor of the right to enforce any other provision of this Contract.

2.10 ASSIGNMENT/ SUBCONTRACT

2.10.1 Contractor shall not assign, sell, or transfer rights, or delegate responsibilities under this Contract, in whole or in part, without the prior consent of the County. No such written approval shall relieve Contractor of any obligations of this Contract, and any transferee shall be considered the agent of the Contractor and bound to perform in accordance with the Contract Documents. Contractor shall remain liable as between the original parties to the Contract as if no assignment had occurred.

2.10.2 All contracts with subcontractors or suppliers shall have provisions making the contract assignable to the County, at the option of the County, if the Contractor terminates or is terminated, goes out of business, declares bankruptcy, or is otherwise is unable to perform provided that the County gives the subcontractor notice of assignment within 14 days of learning of the inability of the Contractor to perform.

2.11 SUCCESSORS IN INTEREST: The provisions of this Contract shall be binding upon and shall accrue to the benefit of the parties to the Contract and their respective successors and assigns.

2.12 COUNTY'S RIGHT TO DO WORK: At any time and without prejudicing this Contract, the County may perform work with its own personnel or separate contractor. The Contractor shall fully cooperate with any and all County forces without additional cost to the County.

2.13 OTHER CONTRACTS: In all cases and at any time, the County has the right to execute other contracts related to or unrelated to the work of this Contract. The Contractor of this Contract will fully cooperate with any and all other contractors without additional cost to

2.14 ARCHITECT/ENGINEER

2.14.1 County reserves the right to designate in writing an engineer or architect as its authorized representative to provide administration of the Contract as hereinafter described. The Architect/Engineer will advise and consult with the County. All instructions to the Contractor shall be forwarded through the Architect/Engineer.

The Architect/Engineer will have authority to act on behalf of the County only to the extent provided in the Contract Documents, unless otherwise modified by written instrument.

2.14.2 The Architect/Engineer will determine in general that the Work of the Contractor is being performed in accordance with the Contract Documents, and will endeavor to guard the County against defects and deficiencies in the Work of the Contractor.

2.14.3 The Architect/Engineer will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observations, the Architect will keep the County informed of the progress of the Work, and will endeavor to guard the County against defects and deficiencies in the Work of the Contractor.

2.14.4 The Architect/Engineer shall at all times have access to the Work wherever it is in preparation and progress. The Contractor shall provide facilities for such access so that the Architect may perform their functions under the Contract Documents.

2.14.5 Based on the Architect's observations, and an evaluation of the Contractor's

Application for Payment, the Architect will determine the amount owing to the Contractor and will issue to the County Certificates for Payment incorporating such amount.

2.14.6 The Architect/Engineer will be the interpreter of the requirements of the Contract

Documents and the judge of the performance thereunder by the Contractor, subject to the ultimate authority of the County. All interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the

2.14.7 The Architect/Engineer will have the authority to reject or recommend to the

County the rejection of Work that does not conform to the Contract Documents.

Whenever, in the Architect's opinion, it is considered necessary or advisable for the implementation of the intent of the Contract Documents, the Architect will have authority to require special inspection or testing of the Work whether or not such Work be then fabricated, installed or completed.

2.14.8 The Architect/Engineer will receive from the Contractor and review and approve all

Shop Drawings, Product Data and Samples, but only for conformance with the design concept of the Work and the information given in the Contract Documents.

Such action shall be taken with reasonable promptness so as to cause no delay. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component.

2.14.9 Following consultation with the County, the Architect/Engineer will take appropriate action on Change Orders and will have authority to order minor changes in the Work. Minor changes are those not involving an adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be enacted by written order issued through the Architect/Engineer, and shall be binding on the County and the Contractor. The Contractor shall carry out such written orders promptly.

2.14.10 The Architect/Engineer will conduct inspections to determine the date of

Substantial Completion and final completion, and will receive and forward to the County for the County's review written warranties and related documents required by the Contract and assembled by the Contractor. The Architect will issue a final Project Certificate for Payment.

2.14.11 The duties, responsibilities and limitations of authority of the Architect as the County's representatives during construction as set forth in the Contract Documents, will not be modified or extended without written consent of the County, the Contractor and the Architect, which consent shall not be unreasonably withheld. Failure of the Contractor to respond within ten days to a written request shall constitute consent by the Contractor.

3. WAGES AND LABOR

3.1 MINIMUM WAGE RATES ON PUBLIC WORKS: When the contract price exceeds

$25,000, the Contractor shall comply fully with the provisions of ORS.279.348 through

279.380. Documents establishing those conditions, as determined by the Commissioner of the Bureau of Labor and Industries (BOLI), are included in these Contract Documents.

3.2 PAYROLL CERTIFICATION REQUIREMENT: Pursuant to ORS 279.354, Contractor and its subcontractors shall submit complete certified statements of payrolls for each week and submit as follows:

(a) Each certified statement required by this section shall be delivered or mailed by the contractor or subcontractor to the public contracting agency. Certified statements for each week during which the contractor or subcontractor employs a worker upon the public work shall be submitted once a month, by the fifth business day of the following month. Information submitted on certified statements may be used only to ensure compliance with the provisions of ORS

279.348 to 279.380

3.3 PROMPT PAYMENT: Pursuant to ORS 279.312, and as a condition to the County’s performance, Contractor agrees:

3.3.1 If the Contractor fails, neglects, or refuses to make prompt payment of any claim for labor or services furnished to the Contractor or a Subcontractor by any person in connection with the project as such claim becomes due, the proper officer(s) representing the County may pay the claim and change the amount of payment against funds due or to become due the Contractor under this Contract. Payment of claims in this manner shall not relive the Contractor or the Contractor’s surety from obligation with respect to any unpaid claims.

3.3.2 If the Contractor or a first-tier Subcontractor fails, neglects or refuses to make payment to a person furnishing labor or materials in connection with the public contract for a public improvement within 30 days after receipt of payment from the County or a contractor, the contractor or first-tier subcontractor shall owe the person the amount due plus interest charges commencing at the end of the 10-day period that payment is due under ORS 279.445 (4) and ending upon final payment, unless payment is subject to a good faith dispute as defined in ORS 279.445. The rate of interest charged to the Contractor or first-tier Subcontractor on the amount due shall equal three times the discount rate on 90-day commercial paper in effect at the Federal Reserve Bank in the Federal Reserve district that includes Oregon on the date that is thirty days after the date when payment was received from the County or from the Contractor, but the rate of interest shall not exceed thirty percent. The amount of interest may not be waived.

3.3.3 If the Contractor or a Subcontractor fails, neglects or refuses to make payment to a person furnishing labor or materials in connection with the Contract, the person may file a complaint with the Construction Contractors Board, unless payment is subject to a good faith dispute as defined in ORS 279.445. Every contract related to this Contract shall contain a similar clause.

3.4 SUBCONTRACTOR REQUIREMENTS: Pursuant to ORS 279.445, Contractor shall include in each subcontract for property or services entered into by the Contractor and a first-tier subcontractor, including a material supplier, for the purpose of performing a construction contract:

3.4.1 A payment clause that obligates the Contractor to pay the first-tier Subcontract for satisfactory performance under its subcontract within ten days out of such amounts as are paid to the Contractor by the County under the contract;

3.4.2 An interest penalty clause that obligates the Contractor if payment is not made within 30 days after receipt of payment from the County, 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

3.4.1 of this Subsection. Contractor or first-tier Subcontractor shall not be obligated to pay an interest penalty if the only reason that the Contractor or first-tier subcontractor did not make payment when payment was due is that the Contractor or first-tier Subcontractor did not receive payment from the County or Contractor when payment was due.

3.4.3 A clause which requires each of Contractor’s Subcontractor’s to include, in each of their contracts with lower-tier Subcontractors or suppliers, provisions to the effect that the first-tier Subcontractor shall pay its lower-tier Subcontractors and suppliers in accordance with the provisions of Subsections 3.4.1 and 3.4.2, above and requiring each of their Subcontractors and suppliers to include such clauses in their subcontracts and supply contracts.

3.5 Pay all contributions or amounts due the State Industrial Accident Fund and the State

Unemployment Compensation Trust Fund from such Contractor or subcontractor incurred in the performance of the Contract.

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

3.7 Pay to the Department of Revenue all sums withheld from employees pursuant to ORS

316.167.

3.8 All employers, including the Contractor, that employ subject workers who work under this contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers’ Compensation coverage, unless such employers are exempt under ORS 656.126.

Contractor shall ensure that each of its Subcontractors complies with these requirements.

4. CHANGES IN THE WORK

4.1 The terms of this Contract shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, without prior written approval of the County's Authorized Representative.

4.1.1 It is mutually agreed that changes in plans, quantities, or details of construction are inherent to the nature of construction and may be necessary or desirable during the course of construction. The County's Authorized Representative may at any time, without notice to the sureties, either increase or decrease the amount of work to be performed under the Contract. Without impairing the Contract, the County reserves the right to require changes determined necessary or desirable to complete the proposed construction within the general scope of the Contract. These changes may include, but are not limited to:

(a) Specifications and design,

(b) Increases or decreases in quantities,

(c) Additional work,

(d) Elimination of any Contract item,

(e) Duration of project,

(f) Acceleration or delay in performance of work.

4.1.2 The County and Contractor agree that changes shall be administered and negotiated according to the following:

Any Contract Amendment including change orders, extra work, field orders, or other changes in the Contract Documents which modifies the original Contract, may be made with the Contractor without competitive bidding subject to the following conditions: The original Contract was let by competitive procurement, unit prices or solicitation alternates were provided that established the cost for additional work, and a binding obligation exists on the parties covering the terms and conditions of the additional work.

Where unit prices or solicitation alternates do not establish the cost for additional work, the limits of OAR 125-310-010 will apply.

4.1.3 In the event there are any changes or extra work of a class not covered by the prices included in the Contract Documents, the basis of payments shall be agreed upon in writing between the Parties to the Contract before the Work is done. If basis for payment cannot be agreed upon prior to the beginning of the Work, and if so directed by the County's Authorized Representative, then work shall be performed on the basis of furnishing direct labor, equipment, and material costs on all work performed. In either case, in addition to direct costs, up to the following amounts may be added to the Contractor's or sub-contractor's direct costs to cover Overhead as defined in Section 1 (Definitions/General Provisions) for work performed with their own forces:

LABOR 15%

EQUIPMENT 10%

MATERIALS 10%

When work is performed by an authorized subcontractor, the Contractor will be allowed a supplemental mark-up on each piece of subcontract work covered by the change order up to the following:

$0.00 - $2,000.00 10%

OVER $2,000.00 5%

These payments made to the Contractor will be complete compensation for overhead, profit, and all other costs that were incurred by the Contractor or by other forces furnished by the Contractor, including subcontractors. These payments apply to all change order work. No other reimbursement, compensation, or payment will be made. Deductive changes are those which reduce the scope of the work. All deductive changes will be negotiated using the percentages for labor, equipment, material and subcontractor mark-ups in Subsection 4.1.3.

4.1.4 If any change under this section causes an increase or decrease in the Contractor's cost of, or the time required for the performance of any part of the work under this Contract, the Contractor must submit a written statement setting forth the nature and specific extent of the claim, including all time and cost impacts against the Contract as soon as possible, but no later than 30 days after receipt of any written notice of modification of the Contract. (Refer also to Subsection 4.1.3 for notification.)

4.1.5 No claim by the Contractor for additional costs shall be allowed if made after receipt of final payment application under this Contract.

4.1.6 All change order work shall be executed under the conditions of the Contract

Documents except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.

4.1.7 If the Contractor discovers site conditions which differ materially from what was represented in the Contract Documents or from conditions that would normally be expected to exist and be inherent to the construction activities defined in the Contract Documents, the Contractor shall notify the County's Authorized Representative immediately and before the area has been disturbed. The County's Authorized Representative will investigate the area and make a determination as to whether or not the conditions differ materially from either the conditions stated in the Contract Documents or those which could reasonably be expected in execution of this particular Contract. If it is determined that a differing site conditions exists, any compensation or credit will be determined based on Section 4.0, Changes In the Work. If the Contractor does not concur with the decision of the County's Authorized Representative and/or believes that it is entitled to additional compensation, the Contractor may proceed to file a claim.

4.1.8 It is understood that changes in the work are inherent to construction of this type.

The Contractor is notified that numerous changes are anticipated and that there will be no compensation made to the Contractor directly related to the number of changes. Each change will be evaluated for extension of Contract time and increase or decrease in compensation based on its own merit.

4.2 DELAYS

4.2.1 If the Contractor is delayed by any actions of the County, County's Authorized

Representative, or any other employee or agent of the County, or by separate contractor employed by the County, or by Force Majeure, the Contractor shall submit a written notification of the delay to the County's Authorized Representative within two working days of the delay. This notice shall state the cause of the potential delay, the project components impacted by the delay, and the anticipated time extension necessary to compensate for the delay and impact on progress of the work and final completion. Within seven days after the cause of the delay has been mitigated, or in no case more than 30 days after the initial notice, the Contractor shall submit to the County's Authorized Representative, a complete and detailed request for additional time resulting from the delay. The request shall be reviewed as described in Subsection 4.3 Claims Review Process. Failure to comply with the deadlines constitutes a waiver of any claim for additional time.

4.2.2 Avoidable delays include delays which could have been avoided by the exercise of care, prudence, foresight, and diligence on the part of the Contractor or its subcontractors, including, but not limited to, the following:

(a) Delays that may in themselves be unavoidable but which affect only a portion of the work and do not necessarily prevent or delay the prosecution of other parts of the work nor the completion of the whole work within the contract time.

(b) Delays that do not impact activities on the accepted critical path schedule.

(c) Time associated with the reasonable interference of other contractors employed by the County that do not necessarily prevent the completion of the whole work within the contract time.

4.2.3 Unavoidable delays include those which result from causes beyond the control of the Contractor and which could not have been avoided by the exercise of care, prudence, foresight, and diligence on the part of the Contractor or its subcontractors. Delays caused by Force Majeure, war, public enemy, freight embargoes, and strikes that occur despite the Contractor's reasonable efforts to avoid them, shall be considered as unavoidable.

4.2.4 The County may grant a time extension for avoidable delay if the County deems it is in its best interest. Except as otherwise provided in ORS 279.063, time extensions for avoidable or unavoidable delays shall not be compensable. Only delays within the reasonable control of the County shall be compensable.

4.2.5 Claims by the Contractor based on adverse weather conditions must be substantiated by documentation that weather conditions were abnormal for the specific time period claimed, could not have been anticipated by the contractor, and adversely impacted the project. A rain, windstorm, high water, or other natural phenomenon for the specific locality of the work, which might reasonably have been anticipated from historical records of the general locality of the work, shall not be construed as abnormal. It is hereby agreed that rainfall greater than the following cannot be reasonably anticipated:

(a) Daily rainfall equal to, or greater than, 0.50 inch during a month when the monthly rainfall exceeds the normal monthly average by 25% or more.

(b) Daily rainfall equal to, or greater than, 0.75 inch at any time.

(c) The Office of the Environmental Data Service of the National Oceanic and

Atmospheric Administration (NOAA) of the U.S. Department of Commerce nearest the project site shall be considered the official agency of record for weather information.

4.3 CLAIMS REVIEW PROCESS

4.3.1 All claims shall be made in writing to the County's Authorized Representative not more than ten days from the date of the occurrence of the event which gives rise to the claim or not more than ten days from the date that the Contractor knew or should have known of the problem. Unless the claim is made in accordance with these time requirements, it shall be waived.

4.3.2 All claims shall be submitted in writing and shall include a detailed, factual statement of the basis of the claim, pertinent dates, Contract provisions which support or allow the claim, reference to or copies of any documents which support the claim, the exact dollar value of the claim, and specific time extension requested for the claim. If the claim involves work to be completed by subcontractors, the Contractor will analyze and evaluate the merits of the subcontractor claim prior to forwarding it and that analysis and evaluation to the County's Authorized Representative. The County's Authorized Representative and the County will not consider direct claims from subcontractors, suppliers, manufacturers, or others not a party to this Contract.

4.3.3 The County's Authorized Representative will review all claims and take one or more of the following preliminary actions within ten days of receipt of a claim: (1) request additional supporting information from the Contractor; (2) inform the Contractor and County in writing of the time required for adequate review and response; (3) reject the claim in whole or in part and identify the reasons for rejection; (4) recommend approval of all or part of the claim; or (5) propose an alternate resolution.

4.3.4 The County's Authorized Representative's decision shall be final and binding on the

Contractor unless appealed by written notice to the County within 15 days of receipt of the decision. The Contractor must present written documentation supporting the claim within fifteen days of the notice of appeal. After receiving the appeal documentation, the County shall review the materials and render a decision within 30 days after receiving documentation.

4.3.5 The decision of the County shall be final and binding unless the Contractor requests mediation within fifteen days of receipt of the County's decision. Both the County and the Contractor are obligated to participate in the mediation process prior to either or both proceeding to litigation. The mediation process is non-binding.

Notwithstanding any other provision, the parties may agree to postpone mediation of one or more claims until after substantial completion.

4.3.6 The parties shall submit to mediation prior to the commencement of litigation. The mediator shall be an individual mutually acceptable to both parties. Should the parties be unable to agree, the parties will look to the local circuit court or the Oregon Dispute Resolution Commission. Each party will pay its own costs for the time and effort involved in mediation. The cost of the mediator shall be split equally between the two parties. Both parties agree to exercise their best effort in good faith to resolve all disputes in mediation. Participation in mediation is a mandatory requirement on both the County and the Contractor. The schedule and time allowed for mediation will be mutually acceptable, but shall be no less than 30 days unless it is agreed that further mediation would be fruitless.

4.3.7 Regardless of the review period or the final decision of the County's Authorized

Representative, the Contractor shall continue to diligently pursue the work as identified in the Contract Documents. In no case is the Contractor justified or allowed to cease work without a written stop work order from the County or County's Authorized Representative.

5. PAYMENTS

5.1 SCHEDULE OF VALUES

5.1.1 The Contractor shall submit, at least ten days prior to submission of its first application for progress payment, a schedule of values for the contracted Work.

This schedule will provide a breakdown of values for the contracted Work and will be the basis for progress payments. The breakdown will demonstrate reasonable, identifiable, and measurable components of the Work. Unless objected to by the County's Authorized Representative, this schedule shall be used as the basis for reviewing Contractor's applications for payment.

5.2 APPLICATIONS FOR PAYMENT

5.2.1 County shall make progress payments on the Contract monthly as work progresses.

Payments shall be based upon estimates of work completed and schedule of values.

All payments shall be approved by the County's Authorized Representative. A progress payment shall not be considered acceptance or approval of any work or waiver of any defects therein. County shall pay to Contractor interest at the rate of one and one-half percent per month on the progress payment, not including retainage, due the Contractor. The interest shall commence 30 days after the receipt of invoice from the Contractor or 15 days after the payment is approved by the County's Authorized Representative, whichever is the earlier date.

5.2.2 Contractor shall submit to the County's Authorized Representative, an application for each payment and, if required, receipts or other vouchers showing payments for materials and labor including payments to Subcontractors. Contractor shall include, in its application for payment, a schedule of the percentages of the various parts of the Work completed, based on the Schedule of Values which shall aggregate to the payment application total, and shall include, on the face of each copy thereof, a certificate in substantially the following form:

"I, the undersigned, hereby certify that the above bill is true and correct, and the payment therefore, has not been received.

Signed: "

5.2.3 Generally, request for payment will be accepted only for materials that have been installed. Under special conditions, payment requests for stored materials will be accepted. Such a payment will be subject to the following conditions:

(a) The request for stored material shall be submitted at least 30 days in advance of the Application for Payment on which it appears. Requests for payment shall be entertained for major equipment, components or expenditures only.

(b) The Contractor shall submit invoices showing the quantity and cost of the material stored.

(c) The material shall be stored in a bonded warehouse or at County’s option, onsite, and County's representative shall be granted the right to access the material for the purpose of removal or inspection at any time during the Contract period.

(d) The Contractor shall name the County as co-insured on the "all-risk" policy covering the full value of the property while in the care and custody of the Contractor until it is installed. A certificate noting this coverage shall be issued to the County.

(e) Payments shall be made for material only. The submitted invoice amount shall be reduced by the cost of transportation for an inspector to check the delivery at out of town storage sites.

(f) Within 60 days for the request for payment, the Contractor shall submit evidence of payment covering the material stored.

(g) Payment for stored materials shall in no way indicate acceptance of the materials or waive any rights under this Contract for the rejection of the work or materials not in conformance with the Contract Documents.

Contractor retains the full risk of loss and is responsible for protecting stored materials. A deduction from progress payments or retainage shall be made for damaged materials. County shall pay Contractor cost plus five percent with no allowance for overhead or profit for reasonable quantities of unused materials that cannot be returned for credit.

(h) All required documentation must be submitted with the respective

Application for Payment.

5.2.4 The County reserves the right to withhold payment for Work that has been demonstrated or identified as failing to conform with the Contract Documents.

5.3 RETAINAGE

5.3.1 Retainage shall be in accordance with ORS 279.400 to 279.445:

(a) County may reserve as retainage from any progress payment, including payment for force account work or change orders, an amount not to exceed five percent of the payment. As work progresses, County may reduce the amount of the retainage and may eliminate retainage on any remaining monthly contract payments after 50 percent of the work under the Contract is completed if, in the County's opinion, such work is…