RFB 243 General Conditions for Construction Contracts.pdf

DOUGLAS COUNTY’S GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS

1 DEFINITIONS AND INTERPRETATION

1.1 Unless particular provisions of the Contract Documents state otherwise, the following definitions apply to all Contract Documents:

1.1.1 “Addendum” or “Addenda” means a document or documents issued by the County before Bids are due that change the Bidding Documents.

1.1.2 “Agreement” means the Contract Document signed by the Parties that incorporates all other

Contract Documents by reference.

1.1.3 “Alternate” means a variation in the scope of the Work that is identified as an Alternate in the Bid

Schedule and that is either included in or excluded from the Contract Documents by the Agreement.

1.1.4 “Amendment” means a Contract Document executed by the County and the Contractor that changes nontechnical provisions of the Contract Document.

1.1.5 “Applicable Laws” means all codes, statutes, regulations, rules, orders, ordinances, and other legal requirements of Governmental Agencies that affect the Work or the Contract Documents.

1.1.6 “Application for Payment” means the completed form and supporting documents that the Contractor must submit to obtain payment.

1.1.7 “As-built Documents” means a version of the Plans and Specifications that is updated as construction proceeds to show changes in the components, constituents, dimensions, and details of the Work as constructed.

1.1.8 “Award” means the Board’s formal decision accepting a Bid which is made by written order.

1.1.9 “Base Bid” means the amount stated in the Bid Schedule for the basic scope of the Work which may be increased or decreased by Alternates.

1.1.10 “Bid” means the written offer to perform the Work, including all supporting documentation submitted by the Contractor to the County.

1.1.11 “Bid Schedule” means that part of the Bid that lists Pay Items, units of measurement, prices, estimated quantities, and the total Bid price. The Base Bid and any Alternates that are added to or deleted from the Base Bid by the Agreement will become the “Contract Price Schedule”.

1.1.12 “Bidding Documents” means all documents issued by the County to solicit Bids, including prospective Contract Documents.

1.1.13 “Board” means the Board of County Commissioners.

1.1.14 “Change in the Work” means a change in the Specifications, Plans, Progress Schedule, and other requirements for the Work which is authorized under the Contract Documents.

1.1.15 “Change Order” means a Contract Document executed by the County and the Contractor that authorizes a Change in the Work.

1.1.16 “Claim”, unless modified by “Third-Party”, means a dispute between the Parties concerning this

Contract or the Work.

1.1.17 “Construction Method” means any construction means, method, technique, sequence, procedure, or equipment that is used to perform the Work.

1.1.18 “Consultant” means an architect, engineer, or other consultant with professional or technical expertise in a field related to the Work who is engaged by the County as an independent contractor to assist the Contract Administrator in administration of the Project.

1.1.19 “Contract Administrator” means the representative of the County who is authorized by the Board to administer the Contract and the Project on behalf of the County.

1.1.20 “Contract Documents” means the documents that govern the contractual rights and obligations of the Parties concerning the Work, including these General Conditions, Supplementary Conditions, Specifications, Plans, Drawings, the Contract Price Schedule, the Schedule of Values, the Notice to Proceed, Amendments, change Orders, Work Change Directives, Field Orders, and the Punch List.

1.1.21 “Contract Price” means the total amount payable to the Contractor for the Work as determined by the Contract Documents.

1.1.22 “Contract Time” means the time during which the Contractor must complete the Work as stated in the Contract Documents.

1.1.23 “Contractor” means the person or entity who enters into the Contract with the County to perform the Work as the prime contractor.

1.1.24 “County” means Douglas County, Oregon

1.1.25 “County Counsel” means an attorney in the Office of the County Counsel established by Douglas

County Code Chapter 2.08.

1.1.26 “Document” means any book, paper, photograph, drawing, model, video or sound recording, electronic record, or other material or record which contains verbal, numerical, or graphic information.

1.1.27 “Environmental Laws” means Applicable Laws pertaining to Hazardous Substances, environmental health hazards, environmental pollution, industrial hygiene, or preservation of natural resources.

1.1.28 “Equipment”, unless preceded by the word “construction” means machinery, equipment, hardware, and other mechanisms that are furnished by the Contractor as components or constituents of the Work.

1.1.29 “Field Order” means a written order which is issued by the Contract Administrator to make a minor Change in the Work.

1.1.30 “Goods” has the meaning stated in ORS 72.1050.

1.1.31 “Governmental Agency” means any federal, state, or local governmental entity, agency, or officer with jurisdiction over any aspect of the Work.

1.1.32 “Hazardous Substance” means any hazardous, toxic, infectious, or radioactive substance which is regulated by an Environmental Law and which may pose a hazard to human health or the environment, including “Hazardous Chemicals” that are described in Subsection 31.5 and “hazardous Substances” as defined in ORS 465.200.

1.1.33 “Improvement” means any structure attached to real property.

1.1.34 “Incidental Work” means a part of the Work that must be provided to fulfill the intent of the

Contract Documents or that is customarily provided in conjunction with a Pay Item, but is not listed as a Pay Item.

1.1.35 “Inspector” means a representative of the County who is authorized to inspect the Work and report on the Contractor’s performance.

1.1.36 “Lump Sum” and the abbreviation “L.S.” mean an undivided fixed price for a Pay Item that is not measured by units.

1.1.37 “Materials” means natural and artificial substances and things that are provided by the Contractor as components, constituents, or elements of the Work, including Equipment.

1.1.38 “Notice to Proceed” means the official written notice from the Contract Administrator to the contractor that authorizes the Contractor to begin the Work.

1.1.39 “Overhead” means general administrative expenses of operating the Contractor’s business, including compensation for supervisory employees who are not regularly involved in the Work at the Work site, general office expenses, interest and other capital expense, and taxes.

1.1.40 “Party” or “Parties” means the County or the Contractor or both.

1.1.41 “Pay Item” means a part of the Work for which a specific Unit Price or Lump Sum is stated in the

Contract Price Schedule.

1.1.42 “Plans” means Contract Documents prepared by the County or a Consultant which illustrate or delineate the design, location, dimensions, and details of the Work in pictorial or graphic form.

1.1.43 “Premises” means land and Improvements that are owned or occupied by the County that contain the Work Site and areas that may be used by Contractor for access to the Work Site.

1.1.44 “Product Data” means illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other documents provided by the Contractor that contain information on Materials.

1.1.45 “Progress Payments” means monthly payments that the County is required to make as the Work progresses pursuant to ORS 279C.570(2).

1.1.46 “Progress Schedule” means the schedule approved by the County that identifies and assigns durations to activities that must be completed in order to complete the entire Work within the Contract Time and which is used to measure the Contractor’s performance.

1.1.47 “Project” means a project for a public work, as defined in ORS 279C.800(6)(a), which includes the Work covered by this Contract and may include other work that is performed by the County or other prime contractors.

1.1.48 “Proprietary Product” means a Material which is described in the Specifications by brand name or which is held under patent or trademark by a particular person or entity.

1.1.49 “Punch List” means a list of tasks yet to be completed or deficiencies in the Work which must be corrected before final payment.

1.1.50 “Samples” means physical examples of Materials or workmanship submitted by the Contractor which illustrate some part of the Work and which will establish standards by which that part of the Work will be judged.

1.1.51 “Schedule of Values” means a written basis for making Progress Payments for Lump Sums that are stated in the Contract Price Schedule.

1.1.52 “Shop Drawings” means drawings, diagrams, and other documents in graphic or pictorial form which are prepared by the Contractor, a Subcontractor, or a Supplier to depict or delineate details of the Work.

1.1.53 “Sole Source Product” means a Material that comes from a particular source, is supplied by a particular vendor, or is made by a particular manufacturer.

1.1.54 “Specifications” means the written verbal or numerical standards and technical descriptions of the Work that are issued by the Owner as part of the original Contract Documents or are incorporated in a Change Order or Work Change Directive.

1.1.55 “Specified Product” means a Sole Source Product, Proprietary Product, or generic Materials with specific features, components, constituents, elements, or qualities that are described in the Specifications at the time the Agreement is signed.

1.1.56 “Subcontractor” means a person or entity who has a “Subcontract” with the Contractor or with another Subcontractor at any tier for performing part of the Work, other than merely supplying Materials.

1.1.57 “Submittals” means Shop Drawings, Product Data, Samples, and other documents or items that the Contract Documents require the Contractor to submit to the Contract Administrator for approval.

1.1.58 “Substantial Completion” means the point at which the Work (or a part of it, if specified by the Contract Documents) is sufficiently complete that the County may occupy and fully use it for its intended purpose without interference by the Contractor.

1.1.59 “Substitute” means a product that the Contractor proposes to use for the Work instead of a Specified Product.

1.1.60 “Supplementary Conditions” means a Contract Document that supplements or modifies these General Conditions.

1.1.61 “Supplier” means a person or entity who provides Materials or other Goods to the Contractor or a Subcontractor for the Work, but does not perform Work at the Work Site.

1.1.62 “Third-Party Claims” means demands, claims, actions, arbitrations, and other adversarial proceedings that are asserted, filed, prosecuted, or appealed against a Party by a person or entity other than a Party and all resulting expenses and liabilities, including damages, penalties, judgments, attorney fees, mediation costs, arbitration costs, and litigation costs.

1.1.63 “Unit Price” means the price for a Pay Item that will vary in quantity. A Pay Item with a Unit Price is referred to as “Unit Price Work”.

1.1.64 “Utilities” means pipelines, conduits, ducts, cables, wires, and other facilities for producing, transmitting, or distributing power, communications, heat, gas, oil, water, wastewater, storm water, or other utility services or products.

1.1.65 “Work” means both the process and the result of the Contractor performing personal services and labor and furnishing Materials and other Goods, tools, construction equipment, utilities, transportation, fuel, facilities, and documents that are required by the Contract Documents for construction, reconstruction, major renovation, or painting of Improvements that constitute all or part of the Project.

1.1.66 “Work Change Directive” means a Contract Document issued unilaterally by the County directing a Change in the Work which may affect the Contract Price or the Contract Time.

1.1.67 “Work Site” means the area where the Work will be performed as designated in the Contract Documents.

1.1.68 “Working Day” means Monday through Friday excluding holidays.

1.2 Generally, unless particular provisions of the Contract Documents state otherwise or unless the context indicates otherwise, the following provisions apply to interpretation of the Contract Documents:

1.2.1 Words defined in the Contract Documents and references to specific sections and subsections will be capitalized.

1.2.2 Words in the present tense include the future and vice versa.

1.2.3 Words and phrases used as nouns include the singular and plural forms.

1.2.4 Words and phrases that are not defined in the Contract Documents will have the definition stated in Applicable Law, and if there is no definition in Applicable Law, the meaning commonly accepted in the construction industry.

1.2.5 “Shall”, “will”, and “must” signify acts or obligations that are mandatory. “Should” signifies an act that is preferred, but not required. “May” signifies a discretionary or permissive act.

1.2.6 The phrase “without limitation” will be deemed to follow the words “include”, “includes”, and “including” when referring to a list, class, or group of persons, entities, things, conditions, acts, omissions, events, obligations, rights, remedies, or liabilities.

1.2.7 “As shown”, “as indicated”, and similar phrases in the Specifications mean as shown or indicated on the Plans.

1.2.8 “As directed”, “as determined”, “as prescribed”, “as authorized”, “as approved”, and similar phrases refer to directives or decisions of the Contract Administrator.

1.2.9 If a sentence uses the imperative mood, “the Contractor” will be inferred as the subject, and the auxiliary verb “shall” will be inferred with respect to the action described.

1.2.10 Modifying words such as “all” and “any” and articles such as “the” and “an”, may be omitted, but including or omitting an article or modifier should not affect the interpretation of a provision of the Contract Documents.

1.2.11 References to sections or subsections that do not expressly identify a specific Contract Document will mean the sections and the subsections of the Contract Document in which the references are made.

1.2.12 References to codes, manuals, standard specifications, or other publications of any Governmental Agency, technical organization, or professional organization mean the latest version in effect in Douglas County, Oregon on the date that the Bidding Documents are issued.

2. ABBREVIATIONS The following abbreviations may be used in the Contract Documents for Applicable Laws, specifications, manuals, published standards, Governmental Agencies, technical organizations, and professional organizations:

AAMA Architectural Aluminum Manufacturers Association AAN American Association of Nurserymen AASHTO American Association of State Highway and Transportation Officials ABC Associated Builders and Contractors, Inc.

ACI American Concrete Institute

ACPA American Concrete Pipe Association ACEC American Consulting Engineers Council ADAAG Americans with Disabilities Act of 1990, Accessibility Guidelines for Buildings and Facilities AGC Associated General Contractors of America AIA American Institute of Architects AISC American Institute of Steel Construction AISI American Iron and Steel Institute AITC American Institute of Timber Construction ANSI American National Standards Institute APA American Plywood Association APWA American Public Works Association ASCE American Society of Civil Engineers ASHERAE American Society of Heating, Refrigerating and Air Conditioning Engineers, Inc.

ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWG American Wire Gauge AWPA American Wood Preservers Association AWS American Welding Society AWWA American Water Works Association CBM Certified Ballast Manufacturers CFR Code of Federal Regulations CISCA Ceiling and Interior Systems Contractors Association CRSI Concrete Reinforcing Steel Institute CS Commercial Standard, Commodity Standards Division, US Dept of Commerce CSI Construction Specifications Institute D1.1 AWS Structural Welding Code – Steel DEQ Oregon Department of Environmental Quality DOGAMI Oregon Department of Geology and Mineral Industries DSL Oregon Division of State Lands EJCDC Engineers Joint Contract Documents Committee EPA US Environmental Protection Agency FGMA Flat Glass Marketing Association FM Factory Mutual Engineering Corporation FHWA Federal Highway Administration FS Federal Specification GSA General Services Administration IBC International Building Code ICC International Code Council ICBO International Conference of Building Officials ICEA Insulated Cable Engineers Association IES Illuminating Engineering Society IFC International Fire Code IFGC International Fuel Gas Code IMC International Mechanical Code IRC International Residential Code ISO International Standards Organization NEC National Electrical Code (Oregon Amended) NEMA National Electrical Manufacturer’s Association NFPA National Forest Products Association or National Fire Protection Association NLPB Northwest Lath & Plaster Bureau NIST National Institute of Standards and Technology NPDES National Pollutant Discharge Elimination System NRCA National Roofing Contractors Association NSPE National Society of Professional Engineers OAR Oregon Administrative Rules ODA Oregon Department of Agriculture ODBCA Oregon Department of Business and Consumer Affairs ODOT Oregon Department of Transportation ORS Oregon Revised Statutes OSHA Occupational Safety and Health Administration, US Dept of Labor OSHC Oregon State Highway Commission PCA Portland Cement Association PCI Precast/Prestressed Concrete Institute PDCA Oregon Council, Painting and Decorating Contractors of America PUB Oregon Public Utility Commission RMA Rubber Manufacturers Association SIGMA Sealed Insulating Glass Manufacturers Association SMACNA Sheet Metal and Air Conditioning Contractors’ National Assn, Inc.

SSPC Steel Structures Painting Council UL Underwriters Laboratory, Inc.

UBC Uniform Building Code UPC Uniform Plumbing Code WCLIB West Coast Lumber Inspection Bureau WMMP Wood Molding and Millwork Producers WWPA Western Wood Products Association

3. CONTRACT DOCUMENTS

3.1 The Contract Documents supersede Bidding Documents that are not expressly incorporated in the

Contract Documents by the Agreement. The Contract Documents constitute the entire agreement between the Parties concerning the Work. The Contract Documents are complementary.

References to “this Contract” or “the Contract” in any Contract Document will include all Contract Documents.

3.2 The County intends that the Contract Documents provide for complete, correct, and timely execution of the Work. If the Contract Documents do not describe all details of the Work, details that are necessary to produce the intended result will be inferred.

3.3 Addenda that modify a Contract Document and exhibits and other documents incorporated by reference in a Contract Document will be integral parts of that Contract Document, and references to that Contract Document will include such addenda, exhibits, and other documents.

3.4 If the Contractor finds inconsistencies in the Contract Documents, or is uncertain about the meaning of the Contract Documents, or contends that the Contract Documents are defective in any way, the Contractor shall immediately notify the Contract Administrator of the problem. If necessary, the Contractor shall stop any Work in question until the Contract Administrator issues a written interpretation of the Contract Documents. Any interpretation will be issued in the same manner as a notice under Section 6 as soon as practicable after the Contract Administrator is notified of the problem. The interpretation should be consistent with Subsections 3.5 and 3.6, and it will be an integral part of the Contract Document that it interprets and will be binding on the Parties, unless it is arbitrary. If the Contractor contends that the interpretation constitutes a Work Change Directive or otherwise affects the cost of the Work or the Contract Time, the Contractor may give notice of a Claim.

3.5 The Contract Administrator should consider the following order of priority in addressing inconsistencies in the Contract Documents (the document named in Subsection 3.5.1 takes priority over all others and so on in descending order):

3.5.1 Change Orders and Amendments.

3.5.2 Work Change Directives.

3.5.3 Field Orders.

3.5.4 Agreement.

3.5.5 Supplementary Conditions.

3.5.6 General Conditions.

3.5.7 Specifications.

3.5.8 Plans.

3.5.9 The Contractor’s Bid.

3.6 Amendments, Change Orders, Work Change Directives, Field Orders, and Addenda of a later date will take priority over those of an earlier date. Numbers in Specifications or on Plans should take priority over scaled measurements. Larger scale Plans should take priority over smaller scale Plans.

If Specifications or Plans are inconsistent, the document or provision of a document that will result in the better quality of Work will take priority.

3.7 If a provision of a Contract Document is held by a court to be invalid, it will not affect the validity of other provisions, and the Contract Documents will be interpreted as if the invalid provision did not exist.

3.8 The Contract Documents may be modified only by Amendment, Change Order, Work Change Directive, Field Order, or a written interpretation under Subsection 3.4, and not by any oral understanding, statement, or agreement. Change Orders are subject to the limitations stated in Subsection 24.2. Amendments must be signed by the Contract Administrator, the County Counsel and the Board.

4 ADMINISTRATION OF CONTRACT

4.1 The authority of the Contract Administrator, Inspectors, Consultants, and other representatives of the

County to take actions or make decisions on behalf of the County is limited to those actions and decisions delegated by or pursuant to the Contract Documents. By signing the Agreement, the Board authorizes the Contract Administrator and other representatives of the County to take actions that are described in the Contract Documents.

4.2 The Board has ultimate authority to delegate or restrict the administrative authority of officers, employees, and agents of the County. The Board will notify the Contractor of any decision by the Board that affects the authority of representatives of the County.

4.3 Authority to act on behalf of the County that is not properly delegated to others is reserved by the Board. The Contractor will not rely on any agreement, directive, decision approval, or other action by anyone who is not authorized to act on behalf of the County in accordance with the Contract Documents.

4.4 Unless a particular provision of a Contract Document specifically states otherwise, if a Contract Document refers to an action and decision by the County, it will be taken or made by the Contract Administrator who is named in the Agreement, a replacement designated by the Board pursuant to Subsection 4.1, or a person to whom the Contract Administrator has delegated authority pursuant to Subsection 4.1.

4.5 Subject to particular limitations stated in the Contract Documents, the Contract Administrator may delegate authority to other representatives of the County to make decisions and take actions on behalf of the Contract Administrator, except for authority to issue Work Change Directives and sign Change Orders, and references in the Contract Documents to the Contract Administrator will be deemed to include such representatives. The Contract Administrator will give the Contractor notice of any delegation under this subsection.

4.6 Subject to the provisions on Claims, the Contract Administrator will decide all issues concerning control of the Work, including:

4.6.1 Approval or rejection of the Progress Schedule, the Schedule of Values, Subcontracts, Materials, Substitutes, Submittals, and Work.

4.6.2 Measurement of Unit Price Work;

4.6.3 Requirements of Field Orders and Work Change Directives;

4.6.4 Acceptability of rates of progress on the Work;

4.6.5 Interpretation of the Plans and Specifications; and

4.6.6 Payments that are due under the Contract Documents.

4.7 Unless otherwise stated, if a provision of the Contract Documents states that an act, thing, or document is subject to the approval or consent of the Board or the Contract Administrator, both the request for approval or consent and the approval or consent must be written and must be given in the same manner as notices under Section 6. Approval or consent will not be withheld unreasonably.

4.8 Unless otherwise stated, if a provision of the Contract Documents states that the Contract Administrator may direct the Contractor to take or refrain from taking certain action, the directive should be written and given in the same manner as notices under Section 6.

4.9 The Contractor shall designate, by notice to the County, at least one person who is authorized to take actions on behalf of the Contractor that are necessary for efficient administration of the Contract, including execution of Change Orders and Amendments. Any action or decision concerning the Contract Documents that is made by a representative designated by the Contractor pursuant to this subsection will be valid and binding on the Contractor.

5 WAIVER - Unless a particular provision of the Contract Documents provides otherwise, compliance with requirements of the Contract Documents may be waived only by a written waiver signed by the Party waiving its rights. Waiver of compliance with one requirement in one instance will not be deemed to waive compliance with that requirement in any other instance or to waive any other requirement.

6 NOTICES

6.1 Any notice required by the Contract Documents must be written and must be given by personal delivery or mail, unless the Contract provision requiring the notice or Applicable Law allows or requires a different method of notice.

6.2 Notices to the County will be directed to the Contract Administrator at the address stated in the Agreement. Notices to the Contractor will be delivered to the Contractor’s superintendent at the Work Site or mailed or delivered to the Contractor at the address stated in the Agreement.

6.3 Each Party shall notify the other of any change of address.

7 ASSIGNMENT The Contractor shall not assign or transfer the Contractor’s rights and obligations under this Contract without the prior written consent of the Board.

8 DOCUMENTS PROVIDED BY COUNTY

8.1 The Contract Administrator will provide to the Contractor the number of copies of the Contract

Documents that the Contract Administrator determines are sufficient for executing the Work. The Contractor may purchase additional copies for the cost of reproduction.

8.2 The Contract Administrator will endeavor to locate and provide to the Contractor all Documents within the possession or control of the County that contain information concerning physical conditions that the contractor may encounter at the Work Site. SUCH DOCUMENTS AND INFORMATION MAY

NOT BE COMPLETE OR ACCURATE, AND THE COUNTY MAKES NO WARRANTIES

CONCERNING SUCH DOCUMENTS INFORMATION.

8.3 If necessary for performance of the Work, the Contract Administrator will furnish a legal description of the Work Site and copies of surveys of the work Site possessed by County.

9 NO REPRESENTATIONS – No statements, discussions, or representations by any representative of the County about the Work, the Work Site, or the requirements of the Contract documents will affect the rights or obligations of the Parties unless they are written and included in the Contract Documents or made in accordance with the provisions of the Contract Documents.

10 PRECONSTRUCTION CONFERENCE

10.1 Within ten (10) days after the Contractor signs and returns the Agreement with the proper bonds and insurance certificates, but before Work begins at the Work Site, the Contractor’s representatives, the Contract Administrator, and others designated by the Board or the Contract Administrator will hold a preconstruction conference to discuss the procedures for handling Submittals, Applications for Payment, and other matters pertaining to administration of the Contract.

10.2 At the preconstruction conference, the Contractor shall submit a proposed Progress Schedule for the Work which will be subject to approval under Subsection 26.3 and a proposed Schedule of Values which will be subject to approval under Subsection 44.2.

11 CONTRACTOR’S RECORDS

11.1 The Contractor shall keep current records concerning the Work that are sufficient for evaluating the

Contractor’s performance under the contract documents, including financial records, correspondence, records concerning Subcontracts and contracts with Suppliers, Product Data, documentation of Claims, and records required by Applicable Laws.

11.2 During the progress of the Work, the contractor shall keep at the Work Site a copy of current As Built Documents, Documents required to be kept at the Work Site by Applicable Laws, and other documents that the Contract Administrator requests by notice to the Contractor.

11.3 As-Built Documents, warranties for Materials, manuals, Product Data, Shop Drawings, and other Documents produced or obtained by the Contractor, Subcontractors, and Suppliers in connection with the Work that will be needed for use, maintenance, repair, renovation, reconstruction, or completion of the Work will belong to the County, and the Contractor shall deliver such Documents to the Contract Administrator upon completion of the Work or upon termination of this Contract.

11.4 The Contractor shall allow the County to examine and copy Documents within the possession or control of the Contractor that are pertinent to the Contract while the Work is in progress and within six years after termination of the Contract or completion of the Work. This provision applies to Documents that may be otherwise privileged.

11.5 The County will endeavor to honor requests by the Contractor not to disclose Documents provided by the Contractor which the Contractor believes in good faith to be “trade secrets” or otherwise confidential, designates as such, and has provided legal justification for such designation.

However, the County is subject to the disclosure requirements of the Oregon Public Records Law (ORS 192.410 et seq.), and the County Counsel has exclusive discretion to determine whether a request to keep Documents confidential is consistent with ORS 192.501 to 192.502. Contractor shall hold County harmless for Documents disclosed by County in good faith pursuant to the requirements of the Oregon Public Records Law.

12 CONTRACTOR’S RESPONSIBILITY FOR THE WORK

12.1 By executing this Contract, the Contractor acknowledges that the Contractor:

12.1.1 Has carefully examined the Contract Documents, other pertinent Documents, and all available information concerning physical conditions at the Work Site;

12.1.2 Has determined that labor, construction equipment, and Materials that are needed for the

Work are available;

12.1.3 Has notified the Contract Administrator of errors, ambiguities, or inconsistencies in the

Contract Documents; and

12.1.4 Is not relying on representations by any officer, employee, or agent of the County about the

Work that are not included in or made pursuant to the Contract Documents.

12.2 The Contractor is responsible for the entire Work. Unless particular contract Documents specifically require or allow otherwise, the Contractor shall:

12.2.1 Furnish and pay for all Materials and other Goods, tools, construction equipment, labor, utilities, transportation, personal services, fuel, facilities, and documents that are required by the Contract Documents, or that should be inferred from the Contract Documents as necessary to complete the Work, whether Pay Items or Incidental Work;

12.2.2 Perform the Work in accordance with the Contract Documents and generally accepted trade and industry standards;

12.2.3 Diligently prosecute the Work without interruption in accordance with the approved Progress Schedule;

12.2.4 Control the actions of all persons who are engaged in the Work and assure that they comply with the Contract Documents; and

12.2.5 Cooperate with other prime contractors who are working on the Project as stated in the Contract Documents.

12.3 Unless specific provisions of the Contract Documents state otherwise, the Contractor shall pay all costs incurred in performance of the Contractor’s obligations under the Contract Documents.

12.4 The Contractor shall supervise the Work to assure timely, proper execution of the Work. The Contractor shall employ a competent superintendent who is experienced in the type of Work being performed and who is capable of understanding the Plans and Specifications. The superintendent must be available to confer with the Contract Administrator regularly about the progress of the Work and must be at the Work Site when substantial operations of the Contractor or Subcontractors are in progress. If the Contractor’s superintendent does not have authority to execute Change Orders under Subsection 4.9, a person who does have such authority must be readily available to act on behalf of the Contractor.

12.5 The obligations of the Contractor under the Contract Documents regarding performance of the Work will apply to Subcontractors and Suppliers with respect to the Work that they perform and the Materials that they supply, and the contractor will be responsible for such Work and Materials.

13 WORKERS

13.1 The Contractor and Subcontractors shall provide competent, qualified workers. Workers must have any licenses and certificates required by Applicable Laws for performing the Work to which they are assigned.

13.2 The Contractor shall comply with reasonable directions from the Contract Administrator to exclude workers from the Work Site who are careless, incompetent, or disruptive.

14 MATERIALS

14.1 Materials provided by the Contractor must conform to the Specifications; must be of good, merchantable quality; and must be fit for the purpose for which they are used. With respect to Materials, the Contractor is a “merchant” of Goods under ORS Chapter 72.

14.2 Equipment must be new, current models of standard production. Equipment must be cleaned, conditioned, installed, and connected in accordance with instructions of the manufacturer.

14.3 If required by the Specifications, the Contractor, at the Contractor’s expense, shall have Materials tested before they are incorporated in the Work. Upon completion of tests, the Contractor shall provide the test results to the Contract Administrator who will approve or reject Materials by notice to the Contractor. Such notice will state any conditions of approval or reasons for rejection.

15 SUBSTITUTES

15.1 The Contractor may propose supplying a Substitute that is equivalent to a Specified Product. The

Contract Administrator may refuse to approve a Substitute that could have resulted in lower bids from all bidders if approval had been requested during the bidding process. The Contractor shall provide a written statement of compelling reasons for the Contractor’s failure to request approval of the Substitute prior to bid submission. The Contractor shall document the following information and any other information requested by the Contract Administrator for evaluation of the proposed Substitute:

15.1.1 Technical characteristics of the Substitute;

15.1.2 Past performance and reliability of the Substitute when used for purposes similar to the intended use for the Specified Product;

15.1.3 Advantages and disadvantages of using the Substitute in comparison with the Specified

Product;

15.1.4 Changes in the Work and changes in the Contract Time that will be necessary to use the

Substitute;

15.1.5 Costs of providing, using, and maintaining the Substitute; and

15.1.6 Warranties, requirements for maintenance of the Substitute, and availability of maintenance and repair service.

15.2 The Contractor shall certify that all information regarding the Substitute provided by the Contractor is true and complete and that the performance of the Substitute will be equal or superior to the Specified Product when used for the specified purpose or function.

15.3 The Contract Administrator has complete discretion to approve or reject a Substitute. Approval of a Substitute will be documented by a Change Order. The Contract Administrator may revoke approval of Substitute, and require the contractor, at the Contractor’s expense, to replace the Substitute if the Contract Administrator deems the Substitute unsatisfactory after it is incorporated in the Work. If a Substitute is approved, the Contractor will be solely responsible for the resulting Work.

15.4 The Contractor shall pay all costs associated with a request for substitution regardless of whether it is approved, including costs incurred by the County in reviewing and acting on the request. If the cost of using the Substitute is less than the cost of using the specified Product, the County will be entitled to a commensurate reduction in the Contract Price. Unless the Change Order allowing a Substitute states otherwise, the Contract Price will not be increased for use of the Substitute.

16 CONTRACTOR’S CONSTRUCTION EQUIPMENT AND METHODS

16.1 Construction equipment used by the Contractor to perform the Work must be in good operating condition and must be adequate for efficient performance of the Work.

16.2 Unless the Contract Documents require use of a specific Construction Method, the Contractor will be responsible for determining what Construction Methods are appropriate for performing the Work. If the Contract Documents require a specific Construction Method, the Contractor may request approval to use a different Construction Method in the same manner as a request for approval of a Substitute under Section 15. If the Contractor’s request is approved, the Contractor will be solely responsible for the resulting Work.

17 SUBCONTRACTS

17.1 If the value of the contract is $100,000 or more, within two (2) hours of the date and time of the deadline when the bids were due, a bidder shall submit to the County the names, addresses and Construction Contractors Board registration numbers of any first tier subcontractor that will be furnishing labor or will be furnishing labor and materials in connection with the work and whose contract value is equal to or greater than 5% of the total project bid or $15,000, whichever is greater, or $350,000 regardless of the percentage of the project bid.

17.2 Any Work that is performed by a person who is not hired and paid as an employee of the Contractor, including Work performed with construction equipment that is rented with an operator, must be performed under a written Subcontract that is approved pursuant to this section. A prospective Subcontractor must qualify as an independent contractor under ORS 670.600.

17.3 The Contractor shall not enter into Subcontracts for the Work, allow a Subcontractor to subcontract Work at a lower tier, or allow assignment of a Subcontractor’s interest in a Subcontract without the prior approval of the Contract Administrator. The Contractor shall submit a request to the Contract Administrator with a copy of the proposed Subcontract or assignment. The Contractor shall document the qualifications of a proposed Subcontractor as directed by the Contract Administrator.

The Contractor will be notified of the Contract Administrator’s decision regarding a proposed Subcontract within seven (7) days after the Contract Administrator receives all documents required by this section. The Contract Administrator may reject a Subcontractor for any of the reasons stated in ORS 279C.440(2) with respect to disqualification of bidders and shall reject the subcontract if the subcontractor is on the list created by the Construction Contractors Board in accordance with ORS 701.227(4). The Contract Administrator will not approve a Subcontract that merely provides a labor force for the Work.

17.4 Subcontracts must correlate with the Specifications and Plans for the subcontracted Work.

Subcontracts must state that the Subcontractor is bound by relevant provisions of the Contract Documents concerning control and execution of the Work and administration of the Contract and other provisions that benefit or protect the interests of the County.

17.5 A Subcontract must state that the Subcontractor will defend and indemnify the County and its officers, employees, and agents from all Third-Party Claims arising out of the Subcontractor’s negligence, breach of the Subcontract, or other wrongful acts and omissions of the Subcontractor. A Subcontractor must provide the same liability insurance coverage and workers’ compensation coverage that is required of the Contractor. Proof of such coverage that conforms to Sections 39 and 40 must be provided to the Contract Administrator before the Subcontractor performs Work at the Work site.

17.6 Pursuant to ORS 279C.580(3), the Contractor shall include the following in every subcontract for property or services entered into by the contractor or a first-tier subcontractor (including material suppliers):

17.6.1 A payment clause which obligates the Contractor to pay the first-tier subcontractor for satisfactory performance of its subcontract within ten (10) days out of such amounts as are paid to the Contractor by the County under the contract; and

17.6.2 An interest penalty clause that obligates the Contractor, if payment is not made within thirty

(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 under Section 17.6.1. The interest penalty shall be calculated pursuant to ORS 279C.580(3)(B) and ORS 279C.515(2), on amounts due in the case of each payment not made in accordance with section 17.6.1.

17.6.3 If the only reason that the Contractor or first tier subcontractor did not make the payment when due is that the contractor or first tier subcontractor did not receive payment from the County or the Contractor when payment was due, then the Contractor or first tier subcontractor may not be obligated to pay the interest penalty.

Pursuant to ORS 279C.580(4), the Contractor shall require each Subcontractor to include in each lower tier Subcontract a payment clause and an interest penalty clause conforming to ORS 279C.580(3).

17.7 Each Subcontract shall require the Subcontractor to consent to assignment of the Contractor’s interest in the Subcontract, and the Contractor’s interest in each Subcontract is hereby assigned to the County subject to the following conditions:

17.7.1 An assignment will be effective only if the County gives the Subcontractor written notice that the County is accepting the assignment after termination of this Contract; and

17.7.2 Assignment will be subject to the prior rights of the surety under the performance bond for the Contract.

17.8 Unless assignment of Subcontracts is effected pursuant to Subsection 17.7:

17.8.1 The Contractor shall coordinate the Work of Subcontractors and require Subcontractors to communicate with the Contract Administrator through the Contractor;

17.8.2 Subcontractors shall not make direct Claims against the County; and

17.8.3 The Contractor will be responsible for all Work performed by Subcontractors.

17.9 The Contract Administrator’s approval of a Subcontract or assignment or amendment of a

Subcontract will not diminish the Contractor’s responsibility for all subcontracted Work or release the Contractor or its surety of their responsibilities under the Contract Documents and bonds.

18 USE OF PREMISES

18.1 The County will allow the Contractor to have access to the Work site and use of the Work site as necessary for performance of the Work. The Contractor shall confine the Work to the Work Site and areas that the Contractor is allowed to use for access to the Work Site as described in the Contract Documents.

18.2 The Contractor shall accommodate regular use of the Premises and provide any temporary facilities necessary for safe use of the Premises. The Contractor shall not unreasonably obstruct use of the Premises or allow debris from the Work to accumulate. Upon completion of the Work, the Contractor shall remove from the Premises all debris resulting from the Work and the contractor’s personal property and leave the Premises clean and ready for use by the County.

19 SAFETY AND PROTECTION OF PROPERTY

19.1 The Contractor is responsible for safety at the Work Site and shall take reasonable precautions to prevent injury to persons and damage to property that may result from the Work. The Contractor shall provide safety facilities required by Applicable Laws.

19.2 Unless prohibited by Applicable Laws, in emergencies, the Contractor shall take immediate, appropriate actions necessary to prevent or mitigate injury or loss. If an emergency is not caused in whole or in part by acts or omissions for which the Contractor is responsible under the Contract Documents, the Contractor will be compensated for actions taken pursuant to this subsection in the same manner as for Changes in the Work. Otherwise, the Contractor will bear the cost of any precautionary and emergency measures taken under this section.

19.3 If the Contractor determines that Construction Methods required by the Contract Documents are not safe, the Contractor shall give the Contract Administrator notice and may propose safer alternatives in the same manner as Substitutes. .

19.4 The Contractor shall take adequate measures to protect the Work and Materials stored at the Work site from fire, weather, vandalism, theft, and other foreseeable loss.

19.5 The Contractor will be responsible for all damage to the County’s real and personal property resulting from the Work, and the Contractor will compensate the County for such damage upon receipt of notice from the Contract Administrator describing the damages suffered by the County.

20 COOPERATION WITH UTILITIES

20.1 Utilities that are located at the Work Site will be indicated on the Plans if the location is known to the

County, and the County will provide to the Contractor any information in the County’s possession concerning existing utilities, subject to the limitations stated in Section 9. The Contractor will be primarily responsible for determining the location of utilities by reviewing information provided by the County, contacting utility owners, and uncovering utilities at the Work Site.

20.2 County will exercise any power that County has under Oregon Law to require Utility owners to alter or relocate Utilities to accommodate the Work in a timely manner.

20.3 If Utilities must be altered or moved temporarily or permanently to accommodate the Work, the Contractor shall coordinate the Work with the Utility owners. Unless specific provisions of the Contract Documents state otherwise, or unless the Contractor makes other arrangements with a Utility owner, Utilities will be altered or relocated by the Utility owner. The Contractor may agree with a Utility owner to make changes in a Utility that differs from the Plans subject to the consent of the Contract Administrator, but the Contractor shall bear the cost of such changes.

20.4 If Contractor discovers an unanticipated Utility at the Work Site, the Contractor shall determine the owner of the Utility, and notify the owner and the Contract Administrator. The Contractor shall not disturb any unanticipated Utility, and shall protect the Utility until the Contract Administrator determines whether a Change in the Work is necessary and directs the Contractor to act accordingly.

21 SUBMITTALS

21.1 Submittals are not Contract Documents. The purpose of Submittals is to demonstrate the way in which the Contractor intends to implement those portions of the Work for which Submittals are required under the Contract Documents. Informational Submittals to which the Contract Administrator is not expected to respond will be identified in the Contract Documents.

21.2 The Contractor shall provide Samples, Shop Drawings, Product Data, and other Submittals to the Contract Administrator as required by the Contract Documents. The Contractor shall provide Submittals promptly and in proper sequence to allow for orderly progress of the Work.

21.3 The Contractor shall give special attention to details of Submittals that have been revised at the direction of the Contract Administrator.

21.4 The Contractor shall not perform any Work covered by a Submittal until the Submittal is approved by the Contract Administrator.

21.5 Unless the Contractor gives notice to the contrary at the time that the Contractor provides a Submittal, the contractor shall be deemed to certify that:

21.5.1 The Submittal conforms to the Specifications;

21.5.2 Any Sample is representative of the Material that will be used for the Work; and

21.5.3 Information contained in a Submittal, including information on composition, quantities, dimensions, field measurements, performance criteria, fabrication, assembly, and installation requirements, is true and correct.

21.6 The Contract Administrator is entitled to rely on technical and professional certifications contained in Submittals and the Contractor will be responsible for such certifications.

21.7 The Contract Administrator will either approve, reject, or direct the Contractor to revise a Submittal, unless it is merely an informational Submittal that does not necessitate a response.

21.8 The Contract Administrator’s approval of a Submittal will not relieve the Contractor of responsibility for errors or deficiencies in the Submittals or waive requirements of the Contract Documents.

22 INSPECTION OF WORK

22.1 The Contractor shall inspect all Work as it progresses to assure that it conforms to the Contract

Documents.

22.2 If Applicable Laws require any Work to be inspected by a Governmental Agency, the Contractor shall arrange for the inspection; notify the Contract Administrator in advance of the inspection; and provide copies of…