ESB_fnl_RFCQ_Attachments_279B_Services.docx

ATTACHMENT A –SAMPLE AGREEMENT FORM

PROSPECTIVE CONTRACTOR INSTRUCTIONS: Do not submit this document with your Competitive Quote. If you are the successful prospective Contractor, ODOT will fill in the blanks within this form and request your signature, which will represent your agreement to enter into a contract. PLEASE NOTE: There are some terms in this document that you will be agreeing to should you be awarded a contract; for instance, completion dates and liquidated damages. Please make sure you have read and understand this document before you submit a Competitive Quote.

STATE OF OREGON SERVICES AGREEMENT FORM

for the project

ESB – Juntura Tree Removal and Planting Project Phase II

Contract Number

Resulting from Request for Competitive Quotes No. S-73000-00009074

Note: The Contract described in this agreement form is not a Public Improvement contract as defined in Oregon’s procurement code. However, ODOT has chosen to use the State of Oregon General Conditions for Public Improvement Contracts (“General Conditions”) as the governing terms and conditions for this contract. When the terms “Public Improvement Agreement” or “Public Improvement Agreement Form” are used in the General Conditions, for this contract those terms mean “Services Agreement” or “Services Agreement Form.”

This Agreement (the “Agreement”), made by and between the State of Oregon, acting by and through the Department of Transportation, hereinafter called OWNER, and_____________________________________ hereinafter called CONTRACTOR, (collectively the “Parties”) shall become effective on the date this Agreement has been signed by all the Parties and all required State of Oregon governmental approvals have been obtained, whichever is later. Unless otherwise defined in the in this Agreement or its attachments, the capitalized terms used herein are defined in Section A.1 of the State of Oregon General Conditions for Public Improvement Contracts.

WITNESSETH:

1. Contract Price, Contract Documents and Work.

CONTRACTOR, in consideration of the sum of $_____________________ (the “Contract Price”), to be paid to CONTRACTOR by OWNER in the manner and at the time hereinafter provided, and subject to the terms and conditions provided in the Contract Documents, all of which are incorporated herein by reference, hereby agrees to perform all Work described and reasonably inferred from the Contract Documents. CONTRACTOR understands and agrees that various provisions incorporated from websites and Attachments to the Request for Competitive Quotes and other Contract Documents were not physically attached but were and are incorporated by reference and have the same force and effect as if fully set forth therein.

CONTRACTOR shall perform the Work for the Contract Price pursuant to the Request for Competitive Quotes identified above (including all Addenda thereto, if any), CONTRACTOR’S response to the Request for Competitive Quote, and the following attachments to the Request for Competitive Quotes, which were posted in OregonBuys as part of the Request for Competitive Quotes advertisement and are incorporated into the Contract by this reference:

ATTACHMENTS INCORPORATED FROM WEBSITES:

Oregon Bureau of Labor and Industries Prevailing Wage Rates for Public Contracts Prevailing Wage Rate Book as amended applicable to projects first advertised for bid on 01/24/xxxxxx 2024 for Work that will take place in Harney County, BOLI Region 14, available at: https://www.oregon.gov/boli/employers/Pages/prevailing-wage-rates.aspx

ODOT’s Conflict of Interest Guidelines are available on ODOT’s website (see Guidance, Policy & Resources) and are incorporated into this Contract: http://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx

The Contract Price includes: Competitive Quote items #1 – 4 as posted in OregonBuys.

2. Representatives.

Unless otherwise specified in the Contract Documents, OWNER designates the person listed below as its Authorized Representative in the administration of the Contract. The Owner’s Authorized Representative shall be the initial point of contact for matters related to performance, payment, authorization, and to carry out the responsibilities of OWNER. CONTRACTOR has named _______________________________________ its authorized representative to act on its behalf.

Owner’s Authorized Representative:

Teresa Bock Project Manager 1390 SE 1st Ave Ontario, OR 97914 541-709-8660 Teresa.m.bock@odot.oregon.gov

3. Contract Dates (See the General Conditions for definitions of Substantial and Final Completion):

Start Date: Not Before April 1st 2024.

Final Completion Date: 10/31/2024

4. Liquidated Damages.

Failure to achieve Substantial Completion by the time specified above for Substantial Completion will result in damage to OWNER. Since actual damage will be difficult to determine, it is agreed that CONTRACTOR shall pay to OWNER, not as a penalty but as liquidated damages, $100.00 per calendar day for each day elapsed in excess of the Substantial Completion date specified in Section 3 of this Agreement until Substantial Completion is achieved.

5. Certifications.

(a) Contractor certifies, in accordance with ORS 279A.112, that it has in place a policy and practice of preventing sexual harassment, sexual assault and discrimination against employees who are members of a “protected class”. As a material term and condition of this Agreement, Contractor must maintain, throughout the duration of this Agreement, a policy and practice that complies with ORS 279A.112, including but not limited to, giving employees written notice of the Contractor’s policy and practice.

(b) Contractor certifies that Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

(c) Contractor certifies that all subcontractors performing Work described in ORS 701.005(2) (i.e., construction Work) will be registered with the Oregon Construction Contractors Board or licensed by the Oregon State Landscape Contractors Board in accordance with ORS 701.035 to 701.055 before the subcontractors commence Work under the Contract.

(d) Contractor certifies that it is certified by the State of Oregon as an “Emerging Small Business” per the guidelines of the Certification Office for Business Inclusion and Diversity (“COBID”), that it will comply with all requirements of the Emerging Small Business Assistance Program under Oregon Revised Statute (ORS) 200.160 through ORS 200.200, and that it will perform at least 51 percent of the labor for the Work using the Contractor's own workforce.

(e) Contractor has a Qualifying Drug Testing Program in place for its employees that includes, at a minimum, the following: (i) A written employee drug testing policy, (ii) Required drug testing for all new Subject Employees or, alternatively, required testing of all Subject Employees every 12 months on a random selection basis, and (iii) Required testing of a Subject Employee when the Offeror has reasonable cause to believe the Subject Employee is under the influence of drugs.

6. Integration.

THE CONTRACT DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THE CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO OTHER UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. CONTRACTOR, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT IT HAS READ THE CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

In witness whereof, OWNER executes this Agreement and CONTRACTOR does execute the same as of the day and year indicated below.

CONTRACTOR’S INFORMATION:

NAME & ADDRESS: __

CONTACT INFORMATION: __

CONTRACTOR’S CCB #: __ CCB EXPIRATION DATE: __

CONTRACTOR’S ESB #: ___

CONTRACTOR’S AUTHORIZED SIGNATURE:

Title Date

DOJ REVIEW: Not required per OAR 137-045-0050(1)(b).

OWNER’S AUTHORIZED SIGNATURE:

Title Date

Exhibit 1

TECHNICAL SPECIFICATIONS

ESB Juntura Tree Removal and Planting Project Phase II

These specifications identify certain responsibilities of the Project Manager that would otherwise be responsibilities of the Owner’s Authorized Representative, in accordance with General Conditions Section A.1. ODOT, as Owner, hereby delegates those identified responsibilities to the Project Manager. All other responsibilities of Owner remain with the Owner’s Authorized Representative identified in the Public Improvement Agreement Form.

1. PROJECT MANAGER:

Teresa Bock 1390 SE 1st Ave Ontario, OR 97914 Teresa.m.bock@odot.state.or.us 541-823-4026 541-709-8660

2. WORK SCHEDULE:

Work may begin not sooner than April 1, 2024.

No work may be performed on weekends or state-observed holidays.

Preferred Sept. 1 – March 1 Allowed early spring and late summer if preferred timing is not available. Must notify in advance for bird nesting control or removal.

Completion dated for this contract: October 31st, 2024

3. DESCRIPTION OF WORK:

The work to be done under this Contract consists of the following:

Tree Removal

1. Contractor shall remove a total of five various diameter trees as specified (see table). Trees will be marked by the ODOT maintenance crew prior to work. The contractor shall fall and trim all trees.

2. All felled trees and chips/debris created by the tops, limbs, brush, and other slash shall be removed, loaded, transported and disposed of by ODOT. The contractor will schedule all felling activities to allow sufficient time for ODOT to remove and dispose of all debris prior to felling the next tree.

3. All traffic control shall be performed by ODOT.

4. The Contractor shall submit a Project Work schedule meeting the requirements of this Subsection to the Project Manager. The Project Work schedule is intended to identify the sequencing of activities and time required for prosecution of the Work. The schedule is used to plan, coordinate, and control the progress of the work. Therefore, the Project Work schedule shall provide for orderly, timely, and efficient prosecution of the Work, and shall contain sufficient detail to enable both the Contractor and the Project Manager to plan, coordinate, analyze, document, and control their respective Contract responsibilities. Sufficient detail shall also include all required double shifts, overtime work, or combination of both necessary to complete Contract Work within the Contract Time. The contractor shall give ODOT a preliminary schedule of when the work is to be performed 5 days after receiving NTP. Contractor shall give 10 days notice to ODOT prior to start of work to adjust schedules and allow for all necessary materials and equipment necessary.

5. All traffic control shall be performed by ODOT.

6. All stumps from cut trees must be removed. If grinding is elected all stumps must be ground down a depth of 8 inches below ground and the wells backfilled. A herbicide (Roundup or approved equal) shall be applied to prevent offshoots from growing. See attachment “A” for details.

7. All of the trees are located within state owned property. All precaution must be taken to not damage any property including the fences and houses adjacent to the property.

8. The contractor must cut and fall trees in a way that does not damage or disturb electrical or utility lines or guardrail on the highway. Contractor will assume liability for damaging all private property, guardrail, or power lines, or any problems caused by felling of trees or by the Contractor’s equipment.

Tree list and size

TREE FELLING

Felling of trees to be removed shall involve the complete removal of trees indicated, including stumps, by one of the following methods to be approved by the Project Manager before work commences:

(a) Bulldozer A bulldozer shall be used to push over the whole tree, which shall then be cut by chain saw and removed, from Site. The method shall only be used where no trees are to be retained.

(b) Winches Power mounted or hand winches shall be used for pulling over the whole tree, the main support roots having first being severed either by mechanical means or by hand grubbing. Preserved trees shall not be used as anchor points for winching without approved adequate protection.

(c) Chain Saws Felling by this method shall be in accordance with BS 3998 (1989), either felling the whole tree at once or in sections. The stump shall be removed by a, stump cutting machine, hydraulic lifting or another method approved by the Project Manager before work commences.

PROTECTION OF EXISTING TREES

For all existing trees not to be removed, the Contractor shall ensure for the duration of the contract the following:

· No nails or other fixings shall be driven into trees;

· No fencing or signs shall be attached to trees;

· No materials or machinery shall be stored within the area of a tree's crown diameter.

· No trees shall be used as anchors for ropes or chains used in guying, pulling and the like.

The Contractor shall exercise the greatest care during the progress of the work to avoid damage to any trees, which the contract does not require to be cleared.

Tree Planting

Comply with Section 01040-Planting of the 2024 Standard Specifications except as follows:

01040.04-CoordinationModify as follows:

(a) Planting work plan- Within 5 days of NTP being issued.

The contractor shall provide and install the following:

The Northern Red Oak (Quercus Rubra) Red Sunset Maple Tree Acer rubrum ‘Franksred’ Trees shall be spaced at 30 feet apart.

4. TRAFFIC CONTROL:

ODOT shall provide all traffic control that may be required for the project.

5. SPECIAL PROVISIONS:

Measurement

01040.80 Measurement - The quantities of plantings and associated Work performed under this Section will be measured according to the following:

Mobilization-Lump Sum Tree Removal-Each The Northern Red Oak (Quercus Rubra) 2.5” minimum caliper-Each Red Sunset Maple Tree Acer rubrum ‘Franksred’ 2.5” minimum caliper-Each

01040.90 Payment

Comply with section 01040.90 except as follows:

The accepted quantities of plantings and associated Work performed under this Section will be paid for according to the following:

Modify (d) Plant Materials-with the following:

Delete partial payments and the plant establishment period.

Attachment “A”

Cut Stump, Basal Bark and Hack and Squirt Treatments for Deciduous Trees June 2024 Background Annually, ODOT expends a tremendous amount of resources managing right of way trees. Activities include corridor tree projects, brush mowing, and hazard tree removal. To gain lasting results from these activities it is of utmost importance to control the re-sprouting of deciduous trees such as big leaf maple, alder, cottonwood, black locust and Russian olive. This can be achieved by the timely application of herbicides. Listed below are herbicide recommendations designed to prevent the re-sprouting and control small diameter deciduous trees. Please note that these are only general recommendations. More specific instructions can be found in the products EPA label.

Procedures Cut Stump Using a backpack sprayer, apply herbicides to the wet cambium and adjacent wood around the entire circumference of the cut stump. Sides of the stump should be thoroughly wetted down, but not to the point of runoff. Application may be made up to 30 days after stump is cut, however for best results, applications should be made freshly cut stumps. Treatments may be applied throughout the year; however, control may be reduced during periods of moisture stress as in late summer.

Imazapyr (Imazapyr 4SL, Polaris AC, Habitat) – Mix 6 ounces Imazapyr per gallon of spray solution.

Triclopyr BEE (Garlon 4) – Mix 20 to 30 gallons of Triclopyr BEE with enough crop oil to make 100 gallons. (20% to 30% concentration) Mix vigorously to form solution. Do not apply within 3 feet of running water. Triclopyr amine (Garlon 3a) – Apply undiluted to freshly cut stump. Glyphosate (Roundup Custom) - Apply undiluted to freshly cut stump.

Basal Bark Basal bark applications can control susceptible woody plants with stems less than 6”. Spray the basal parts of brush and tree trunks to 12” to 15” from the ground. Spray until runoff at the ground line is noticeable. Timing – Fall through early spring before trees leaf out.

Imazapyr (Imazapyr 4SL Polaris AC, Habitat) – Mix 6 ounces Imazapyr per gallon of spray solution.

Triclopyr BEE (Garlon 4) –Mix 1 to 5 gallons of Triclopyr BEE with enough crop oil to make 100 gallons. (1 to 5%) Hack and Squirt Imazapyr (Imazapyr 4SL, Polaris AC, Habitat) – 0.5mls undiluted Imazapyr per hack. One hack per 3” DBH is recommended. Timing – Fall through early spring before trees leaf out.

Licensing Requirements A public applicators license is not required for employees applying “general use” pesticides with backpack sprayers. If machine powered equipment is used for the application, a license is required. Contractors are required to be licensed both as Commercial Pesticide Operators and as Commercial Pesticide Applicators. General use pesticides include Roundup, Garlon 3A, Vastlan, Pathfinder II, and Milestone.

Notification ODOT has established a toll-free number, 1(888)996-8080, the public can access to get information on daily ODOT pesticide applications. Prior to pesticide applications, all ODOT employees are required to contact dispatch daily with approximate beginning and end time, highway number and beginning and ending mile points.

Spray Reports If machine powered equipment is used for the herbicide application, ODOT employees are required to fill out a daily spray report upon completion of pesticide applications. Form #734-3494 is available in pad form through the ODOT storeroom or through the ODOT Daily Spray Report Database links page. Completed forms are then entered by the district into the ODOT Daily Spray Report Database. Records must be retained by the applicator for three years.

Exhibit 2

RESERVED

Exhibit 3

GENERAL CONDITIONS AND SUPPLEMENTAL GENERAL CONDITIONS

This Request for Competitive Quotes and the resulting Contract for the [ESB – Juntura Tree Removal and Planting Project Phase II] are governed by the STATE OF OREGON GENERAL CONDITIONS FOR PUBLIC IMPROVEMENT CONTRACTS, January 1, 2012 Edition (“General Conditions”) which, although not physically attached, is incorporated herein by reference as an Attachment with the same force and effect as though fully set forth herein:

http://www.oregon.gov/das/Procurement/Guiddoc/GenCon4PI.pdf

Supplemental General Conditions: The following supplements modify the General Conditions this project. Where a portion of the General Conditions is modified or deleted by these Supplemental General Conditions, the unaltered portions of the General Conditions shall remain in effect.

SGC-1 Add the following definitions to A.1:

ON-SITE WORK, means any Work taking place on the Project Site, including designated staging areas adjacent to the Project Site, except for installation of covered temporary signs according to Section 00222 of the Standard Specifications.

PROJECT SITE, means the geographical dimensions of the real property on which the Work is to be performed, including designated contiguous staging areas.

SGC-2 Add the following after A.3.4 under INTERPRETATION OF CONTRACT DOCUMENTS

A.3.5 The characterization of provisions of the Contract as material provisions or the failure to comply with certain provisions as a material breach of the Contract shall in no way be construed to mean that any other provisions of the Contract are not material or that failure to comply with any other provisions is not a material breach of the Contract.

A.3.6 Electronic Signatures. Contractor and Owner agree that signatures, and other forms of authorized representative certification, showing on documents, including but not limited to copies of the Contract, bonds, Change Orders and amendments, submitted or received via email or other electronic means, when submittal or receipt in that manner is required or allowed by Owner are “Electronic Signatures” under ORS Chapter 84 and bind the signing party and are intended to be and can be relied upon by the parties. Owner reserves the right at any time to require Contractor to deliver the hard copy originals of any documents.

SGC-3 Add the following after Section A.7 GOVERNMENT EMPLOYMENT STATUS:

A.8 TITLE VI NON-DISCRIMINATION PROVISIONS

During the performance of the Contract, Contractor, for itself, its assignees and successors in interest (hereinafter referred to as the “Contractor”) agrees as follows:

a. Compliance with Regulations: Contractor shall comply with the Regulations relative to nondiscrimination in Federally-assisted programs of the Department of Transportation Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of the Contract.

b. Nondiscrimination: Contractor, with regard to the work performed by it during the Contract, shall not discriminate on the grounds or race, color, sex, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. Contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the Contract covers a program set forth in Appendix B of the Regulations.

c. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligations under the Contract and the Regulations relative to nondiscrimination on the grounds of race, color, sex, or national origin.

d. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by ODOT, FHWA or the Federal Transit Administration (“FTA”) as appropriate, to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to ODOT, FHWA or FTA as appropriate, and shall set forth what efforts it has made to obtain the information.

e. Sanctions for Noncompliance: In the event of Contractor’s noncompliance with the nondiscrimination provisions of the Contract, ODOT shall impose such Contract sanctions as ODOT, FHWA or FTA may determine to be appropriate, including, but not limited to:

(i) Withholding of payments to Contractor under the Contract until Contractor complies, and/or

(ii) Cancellation, termination or suspension of the Contract, in whole or in part.

f. Incorporation of Provisions: Contractor shall include the provisions of paragraphs (a) through (e) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. Contractor shall take such action with respect to any subcontract or procurement as ODOT of the federal government may direct as a means of enforcing such provisions including sanctions for non-compliance: Provided, however, that, in the event Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request ODOT, and, in addition, Contractor may request the United States to enter into such litigation to protect the interests of the United States.

SGC-4 Make the following revisions to Section B.5 COMPLIANCE WITH GOVERNMENT LAWS AND REGULATIONS:

· Add the following to the end of Section B.5.1:

All rights and remedies available to Owner under applicable federal, state and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the Contract.

· Delete Section B.5.2(a) and replace with the following:

(a) Pursuant to ORS 279A.110, Contractor shall not discriminate against a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a service-disabled veteran owns or an emerging small business, in the awarding of subcontracts.

· Add the following Section B.5.2(c):

(c) Compliance with ORS 279C.520 also includes (i) As required by ORS 279C.520, the Contractor must comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. The Contractor’s compliance with this section constitutes a material element of this Contract and a failure to comply constitutes a breach that entitles Agency to terminate this Contract for cause,

(ii) The Contractor shall not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits and other compensation with another employee or another person, and shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits or other compensation with another employee or another person.

· Add the following Section B.5.2(d):

(d) Respecting certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a service-disabled veteran owns or an emerging small business under ORS 200.055, as and when applicable, the Contactor shall maintain the certifications, and require in its subcontracts that subcontractors maintain the certifications required by ORS 279A.107.

SGC-5 Delete Section B.15 GOVERNING LAW in its entirety and replace with the following:

B.15 GOVERNING LAW. This Contract shall be governed by and construed and enforced in accordance with the laws of the State of Oregon without regard to principles of conflicts of laws.

SGC-6 Add the following after Section D.3 CLAIMS REVIEW PROCESS

D.4 FALSE CLAIMS (OREGON FALSE CLAIMS ACT)

D.4.1 Contractor understands and acknowledges it is subject to the Oregon False Claims Act (ORS 180.750 to 180.785) and to any liabilities or penalties associated with the making of a false claim under that Act. By its execution of the Contract, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to the Contract or the Project for which the services are being performed, including but not limited to Contractor’s statement of proposal and any invoices, reports, or other deliverables.

D.4.2. Contractor shall immediately disclose (in writing) to Agency whenever, in connection with the award, performance or closeout of the Contract, or any subcontract thereunder, Contractor has credible evidence that a principal, employee, agent, or subcontractor of Contractor has committed—

(i) A violation of the Oregon False Claims Act; or

(ii) A violation of State or Federal criminal or civil law involving fraud, conflict of interest, bribery, gratuity or similar misconduct.

D.4.3. Contractor must include subsections D.4.1 and D.4.2 of this section in each subcontract Contractor may award in connection with the performance of the Contract. In doing so, Contractor may not modify the terms of those subsections, except to identify the subcontractors or sub grantee that will be subject to those provisions.

SGC-7 Section E.5 RETAINAGE is deleted in its entirety and replaced with the following:

E.5 RETAINAGE

E.5.1 Retainage, if withheld, shall be withheld and released in accordance with ORS 279C.550 to 279C.580:

E.5.1.1 Owner reserves the right in its sole discretion to not withhold retainage from progress payments or to begin withholding retainage at any time. If Owner withholds retainage from progress payments the amount to be retained will not exceed five percent of the payment. As Work progresses, Owner 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 Owner's opinion, such Work is progressing satisfactorily. Elimination or reduction of retainage shall be allowed only upon written application by the Contractor, which application shall include written approval of Contractor's surety; except that when the Work is 97-1/2 percent completed the Owner may, at its discretion and without application by the Contractor, reduce the retained amount to 100 percent of the value of the Work remaining to be done. Upon receipt of written application by the Contractor, Owner shall respond in writing within a reasonable time.

E.5.1.2 If retainage is withheld, unless the Contractor requests and the Owner accepts a form of retainage described in options (a) or (b) below, the Owner (except as otherwise provided below for a contract of $500,000 or less) will deposit the retainage in an interest-bearing escrow account as required by ORS 279C.570(2). The Contractor shall execute such documentation and instructions respecting the interest-bearing escrow account as the Owner may require to protect its interests, including but not limited to a provision that no funds may be paid from the account to anyone without the Owner’s advance written authorization. In accordance with the provisions of ORS 279C.560 and any applicable administrative rules, unless the Owner finds in writing that accepting bonds, securities or other instruments described in option (a) below or a security bond described in option (b) below poses an extraordinary risk that is not typically associated with the bond, security or instrument, the Owner will approve the Contractor’s written request:

(a) to be paid amounts which would otherwise have been retained from progress payments where Contractor has deposited acceptable bonds, securities or other instruments of equal value with Owner or in a custodial account or other mutually-agreed account satisfactory to Owner, with an approved bank or trust company to be held in lieu of the cash retainage for the benefit of Owner. Interest or earnings on the bonds, securities or other instruments shall accrue to the Contractor. The Contractor shall execute and provide such documentation and instructions respecting the bonds, securities and other instruments as the Owner may require to protect its interests. To be permissible the bonds, securities and other instruments must be of a character approved by the Director of the Oregon Department of Administrative Services, including but not limited to:

(i) Bills, certificates, notes or bonds of the United States.

(ii) Other obligations of the United States or agencies of the United States.

(iii) Obligations of a corporation wholly owned by the federal government.

(iv) Indebtedness of the Federal National Mortgage Association.

(v) General obligation bonds of the State of Oregon or a political subdivision of the State of Oregon.

(vi) Irrevocable letters of credit issued by an insured institution, as defined in ORS 706.008; or

(b) that the Contractor be allowed, with the approval of the Owner, to deposit a surety bond for the benefit of Owner, in a form acceptable to Owner, in lieu of all or a portion of funds retained, or to be retained. Such bond and any proceeds therefrom shall be made subject to all claims and liens in the manner and priority as set forth for retainage under ORS 279C.550 to ORS 279C.625.

Where the Owner has accepted the Contractor's election of option (a) or (b) above, or an interest-bearing account under ORS 279C.560(5) for a contract of $500,000 or less, Owner may recover from Contractor any additional costs incurred through such election by reducing Contractor's final payment. Where the Owner has agreed to Contractor's request to deposit a surety bond under option (b), Contractor shall accept like bonds from Subcontractors and suppliers on the project from which Contractor has required retainage.

For a contract over $500,000, if the Contractor requests that the Owner deposit the retainage in an interest-bearing account under ORS 279C.560(5), the Owner will use an interest-bearing escrow account as stated above. For a contract of $500,000 or less, if the Contractor requests that the Agency deposit the retainage in an interest-bearing account under ORS 279C.560(5), the Owner will use an interest-bearing account (in a bank, savings bank, trust company or savings association) as provided under ORS 279C.560(5).

E.5.1.3 The retainage held by Owner shall be included in and paid to the Contractor as part of the final payment of the Contract Price. The Owner shall pay to Contractor interest at the rate of one and one-half percent per month on the final payment due Contractor, interest to commence thirty (30) Days after the Work under the Contract has been completed and accepted and to run until the date Contractor shall notify Owner in writing when the Contractor considers the Work complete and Owner shall, within fifteen (15) Days after receiving the written notice, either accept the Work or notify the Contractor of Work yet to be performed on the Contract. If Owner does not within the time allowed notify the Contractor of Work yet to be performed to fulfill contractual obligations, the interest provided by this subsection shall commence to run thirty (30) Days after the end of the 15-Day period.

E.5.1.4 In accordance with the provisions of ORS 279C.560, if the Owner accepts bonds, securities or other instruments deposited as provided in paragraph (a) of subsection E.5.1.2, the Owner shall reduce the moneys held as retainage in an amount equal to the value of the bonds, securities and other instruments and pay the amount of the reduction to the Contractor in accordance with ORS 279C.570.

E.5.1.5 Contractor agrees that if Contractor elects to reserve retainage from any progress payment due to any Subcontractor or supplier, such retainage shall not exceed five percent of the payment, and such retainage withheld from Subcontractors and suppliers shall be subject to and the Contractor shall comply with all applicable legal requirements.

E.5.1.6 The Contractor shall comply with all applicable legal requirements for withholding and releasing retainage and for prompt payments, including but not limited to those in ORS Chapters 279C and 701, and 49 CFR 26.29.

E.5.2 As provided in subsections C.2.2 and C.2.3, additional withholding in the amount of 25% of amounts earned shall be withheld and released in accordance with ORS 279C.845(7) when the Contractor fails to file certified statements as required by section C.2.1.

SGC-8 Add the following at the end of Section E PAYMENTS:

E.7 REPORT OF SUBCONTRACTORS PAID: Following each payment to Contractor, including final payment and any progress payments, Contractor shall submit to the Owner ODOT Form 734-2882, Paid Summary Report. Contractor shall complete and submit the form as specified in the form instructions, which are available online, along with the form at: http://www.oregon.gov/ODOT/Forms/2ODOT/2882.pdf

SGC-9 Amend the first sentence of Section G.2.1 as follows (deletions shown in strikethrough):

G.2.1 When the Contract Price is $100,000 or more (or $50,000 or more in the case of Contracts for highways, bridges and other transportation projects) the Contractor shall furnish and maintain in effect at all times during the Contract Period a performance bond in a sum equal to the Contract Price, and a separate payment bond also in a sum equal to the Contract Price.

SGC-10 Delete Section G.3 INSURANCE in its entirety and replace with the following:

G.3 INSURANCE

G.3.1 Contractor: The Contractor shall obtain the insurance specified below prior to the execution of the Contract. The Contractor shall maintain the insurance in full force at the Contractor’s expense throughout the duration of the Contract and all warranty periods that apply.

G.3.1.2 Subcontracting: If the Contractor specifies prior to the execution of the Contract that a Subcontractor will satisfy an insurance requirement, that is permitted to be satisfied by a Subcontractor, the Contractor shall obtain Owner approval of Subcontractor and Subcontractor’s insurance coverage(s), at least 35 Calendar Days prior to commencement of subcontracted work. After the Contractor receives Owner approval of the Subcontractor, the Contractor may contractually obligate the Subcontractor to obtain and maintain, at the Subcontractor's expense or at the Contractor's expense, the insurance permitted.

G.3.1.3 The Contractor shall require that all Subcontractors carry insurance coverage that the Contractor deems appropriate based on the risks of the subcontracted work. The Contractor shall obtain proof of the required insurance coverages, as applicable, from any Subcontractor providing services related to the Contract.

G.3.1.4 Neither the insurance provided by Subcontractor(s) nor any agreements Contractor or Subcontractor(s) may enter into shall place any limitation on the liability or indemnification obligations of the Contractor under applicable law or the Contract.

G.3.1.5 Insurance Provisions: The Contractor and Subcontractor(s), if any, shall obtain insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State and that are acceptable to Owner. Insurance coverage shall be primary and noncontributory with any other insurance and self-insurance, with the exception of Workers’ Compensation/Employer’s Liability. The Contractor, or appropriate Subcontractor, but not Owner, shall pay for all deductibles, self-insurance retentions and self-insurance, if any.

G.3.2 Workers' Compensation and Employer’s Liability:

G.3.2.1 All employers, including the Contractor and Subcontractor(s), if any, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide Workers’ Compensation Insurance coverage, unless such employers meet the requirement for an exemption under ORS 656.126(2). The coverage shall include Employer’s Liability Insurance with coverage limits of not less than $500,000 for each accident. Contractors who perform the Work without the assistance or labor of any employee need not obtain such coverage if the Contractor certifies so in writing. Contractor shall ensure that each of its Subcontractors complies with these requirements. The Contractor shall require proof of such Workers’ Compensation by receiving and keeping on file a certificate of insurance from each Subcontractor or anyone else directly employed by either the Contractor or its Subcontractors.

G.3.2.2 All employers, including the Contractor and Subcontractor(s), if any, exempt under ORS 656.126(2) and subject to any other state’s Workers’ Compensation law, shall provide Workers’ Compensation Insurance coverage as required by applicable Workers’ Compensation laws. The coverage shall also include Employer’s Liability Insurance with limits not less than $500,000 each accident.

G.3.3 Liability Insurance:

G.3.3.1 Commercial General Liability: The Contractor shall obtain, at Contractor's expense, and keep in effect during the term of this Contract, Commercial General Liability Insurance written on an occurrence basis and covering bodily injury and property damage. This insurance shall include personal and advertising injury liability, products and completed operations, and contractual liability coverage. When Work to be performed includes operations or activity within 50 feet of any railroad property, bridge, trestle, track, roadbed, tunnel, underpass or crossing, the Contractor shall provide the Contractual Liability – Railroads CG 24 17 endorsement, or equivalent, on the Commercial General Liability policy. Combined single limit per occurrence shall not be less than the dollar amount specified in the Contract. The annual aggregate limit shall not be less than the dollar amount specified in the Contract.

G.3.3.2 Commercial Automobile Liability: The Contractor shall obtain, at Contractor's expense, and keep in effect during the term of this Contract, Automobile Liability Insurance covering owned, non-owned, and hired vehicles for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance with separate limits for Commercial Automobile Liability and Commercial General Liability. Combined single limit per occurrence shall not be less than the dollar amount specified in the Contract.

Combined Single Limit Per Occurrence

G.3.3.3 Extended Reporting: If any of the required liability insurance is permitted to be and is on a "claims made" basis, the Contractor or Subcontractor who provided the insurance coverage, shall obtain an extended reporting period on the claims made policy or maintain the claims made policy for a duration of at least 24 months from the date the applicable work has been completed and accepted by Owner or the date of Final Completion. This extended reporting requirement shall be satisfied with documentation of one of the following:

· Maintaining the applicable continuous claims made policy with liability coverage;

· Extended Reporting Endorsement; or

· Tail Coverage.

G.3.3.4 Excess/Umbrella Liability: A combination of primary and Excess/Umbrella Liability insurance may be used to meet the required limits of insurance. Excess/Umbrella Liability coverage must be at least as broad as that provided by the underlying primary insurance policies. In addition, the limits of the underlying primary insurance must be sufficient to prevent any gap between such minimum limits and the attachment point of the coverage provided by the Excess/Umbrella Liability policy.

G.3.3.5 Additional Insured: The liability insurance coverages, except Professional Liability and Workers’ Compensation/Employer’s Liability, if included, shall include an Additional Insured Endorsement endorsing the “State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents, and employees” as Additional Insureds, but only with respect to the Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance. The liability coverages that are permitted by Owner to be obtained by an appropriate Subcontractor shall include all of the foregoing as Additional Insureds and shall also include the Contractor and its officers and employees as Additional Insureds. Additional Insured Endorsements shall be submitted with the Certificate(s) of Insurance and must be acceptable to Owner.

G.3.3.6 Additional Insured – Commercial General Liability: Additional Insured Endorsements on the Commercial General Liability shall be written on ISO Form CG 20 10 07 04, or equivalent, with respect to liability arising out of ongoing operations and ISO Form CG 20 37 07 04, or equivalent, with respect to liability arising out of completed operations. Additional Insured Endorsements shall be submitted with the Certificate(s) of Insurance and must be acceptable to Owner.

G.3.3.7 Notice of Cancellation or Change: The Contractor shall provide at least 30 Calendar Days written notice to Owner before cancellation of, material change to, potential exhaustion of aggregate limits, or non-renewal of the required insurance coverages. If a Subcontractor is providing insurance to meet the contract requirements, the Contractor shall provide at least 30 Calendar Days written notice to Owner before cancellation of, material change to, potential exhaustion of aggregate limits, or non-renewal of the required insurance coverage(s). Any failure to comply with the reporting provisions of this insurance shall not affect the coverage(s) provided to the State, Owner, County, City, or other applicable political jurisdiction or to Owner's governing body, board, or Commission and its members, and Owner's officers, agents, and employees.

G.3.3.8 Certificate(s) of Insurance: As evidence of the insurance coverages required by this Contract, the Contractor shall furnish Certificate(s) of Insurance to Owner prior to execution of the Contract. As evidence of insurance coverages required by the Contract but permitted by Owner to be obtained by an appropriate Subcontractor, the Contractor shall furnish Certificate(s) of Insurance to Owner for approval on such coverages at least 35 Calendar Days prior to commencement of subcontracted work. The Certificate(s) shall:

· List the “State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents and employees” as a Certificate Holder and endorse as an Additional Insured;

· Include all required endorsements or copies of the applicable policy language effecting coverage required by the Contract;

· Specify that all liability insurance coverages shall be primary and non-contributory with any other insurance and self-insurance, with exception of Professional Liability and Workers’ Compensation/Employer’s Liability; and

· Include a list of all policies that fall under the Excess/Umbrella Liability insurance if Excess/Umbrella Liability insurance is used to meet the minimum insurance requirement.

G.3.3.9 Owner Acceptance: All insurance and insurance providers are subject to Owner acceptance. In addition, all of the following are subject to Owner acceptance and, if requested by Owner, the Contractor shall provide complete copies of the following to Owner’s representatives responsible for verification of the insurance coverages required by the Contract: insurance policies, endorsements, self-insurance documents and related insurance documents.

G.3.3.10 Insurance Requirement Review: The Contractor agrees to periodic review of insurance requirements by Owner under the Contract and to provide updated requirements as mutually agreed upon by the Contractor and Owner.

SGC-11 Add the following at the end of Section H:

H.4 LIMITATION OF OPERATIONS

H.4.1 The Contractor shall comply with all Contract provisions and shall:

· Conduct the Work at all times so as to cause the least interference with traffic, and

· Not begin Work that may allow damage to Work already started.

H.4.2 The Contractor shall not begin On-Site Work until the Contractor has:

· Received Notice to Proceed;

· Filed with the Construction Contractors Board the public works bond as required in G.2.3;

· An approved Project Work Schedule;

· An approved Traffic Control Plan;

· An approved Pollution Control Plan;

· An approved Erosion and Sediment Control Plan;

· Met with the Owner’s Authorized Representative at the required preconstruction conference; and

· Assembled all Materials, Equipment, and labor on the Project Site, or has reasonably assured that they will arrive on the Project Site, so the Work can proceed according to the Project Work Schedule.

H.4.3 Unless otherwise approved in writing by the Owner’s Authorized Representative, before any Work is performed and within 30 Calendar Days of the Notice to Proceed, the Contractor shall meet with the Owner’s Authorized Representative for a preconstruction conference at a time mutually agreed upon.

SGC-12 Add the following at the end of Section H.2 SCHEDULE:

H.2.2 The Project Work schedule is essential to the Owner. The Contractor’s failure to provide the schedule, schedule information, progress reports, or schedule updates when required will be cause to suspend the Work, or to withhold Contract payments as necessary to protect the Owner, until the Contractor provides the required information to the Owner’s Authorized Representative.

SGC-13 Add a new subsection to Section J.4.1 as subsection (f) and renumber existing subsection (f) as subsection (g) as follows:

(f) If Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State of Oregon;

(g) If Contractor is otherwise in material breach of any part of the Contract.

SGC-14 Delete Section J.4.2 in its entirety and replace it with the following:

J.4.2 At any time that any of the above occurs, Owner may exercise all rights and remedies available to Owner at law or in equity, including, in the event of the conditions set forth in Section J.4.1 (f) regarding Contractor’s liquidated and delinquent debt, by offset or garnishing all monies due for any and all Work performed by the Contractor when appropriate, and otherwise recovering any liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State of Oregon. In addition, Owner may take possession of the premises and of all materials and appliances and finish the Work by whatever method it may deem expedient. In such case, Contractor shall not be entitled to receive further payment until the Work is completed.