00170Legal Relations and Responsibilities

00170.00 68 Section 00170 - Legal Relations and Responsibilities

Description

00170.00General - The Contractor shall comply with all laws, ordinances, codes, regulations ,

executive orders and administrative rules (collectively referred to as "Laws" in this Section) that relate to the Work or to those engaged in the Work. Where the provisions of the Contract are inconsistent or in conflict with applicable Laws , the Contractor shall comply with the more stringent standard.

The Contractor shall indemnify, defend, and hold harmless the Agency and its representatives from liability arising from or related to the violation of Laws by those engaged in any phase of the Work. This provision does not apply to Work performed by Agency employees.

In any litigation, the entire text of any order or permit issued by a governmental or regulatory authority, as well as any documents referenced or incorporated therein by reference, shall be admissible for the purpose of Contract interpretation.

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. All rights and remedies available to the Agency under applicable Laws are incorporated herein by reference and are cumulative with all rights and remedies under the Contract.

The Contract shall not be construed against either party regardless of which party drafted it. Other than as modified by the Contract, the appli cable rules of contract construction and evidence shall apply. This Contract shall be governed by and construed and enforced according to the laws of the State of Oregon without regard to principles of conflict of laws. Any dispute between the Agency and the Contractor that arises from or relates to this Contract and that is not resolved under the provisions of Section 00199 shall be brought and conducted solely and exclusively within the Circuit Court for the State of Oregon in the county where the Agenc y's main office is located; provided, however, if a dispute must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this Subsection be construed as a waiver by the State of Oregon on any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States , or otherwise, from any claim or from the jurisdiction of any court. CONTRACTOR BY EXECUTION OF THE CONTRACT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION.

It is the Agency’s intention to make all payments due under the Contract if funds are legally available for such purpose. The Agency reasonably believes that at the time of entering into the Contract sufficient funds are available and authorized for expenditure to finance the cost of the Contract within the Agency’s appropriation or limitation, or other funding sources. Agency’s payment of amounts under the Contract is contingent on the Agency receiving adequate appropriations, limitations or other expenditure authority or funds to allow the Agency to continue to make payments under the Contr act. In the event the Agency becomes aware that sufficient funds are not available and authorized, the Agency will provide prompt written notice to the Contractor, and the Agency may terminate the Contract as provided in 00180.90(c).

00170.01 69 Provisions and Requi rements

00170.01Other Agencies Affecting Agency Contracts - Representatives of regulatory bodies or

units of government whose Laws may apply to the Work shall have access to the Work according to 00150.20(d). These may include but are not limited to those in the following (a), (b), (c), and (d).

Agriculture, Department of Forest Service Natural Resource Conservation Service Army, Department of the Corps of Engineers Commerce, Department of National Marine Fisheries Service Defense, Department of Energy, Department of Environmental Protection Agency Federal Energy Regulatory Commission Geology Survey Health and Human Services, Department of Homeland Security, Department of U.S. Coast Guard Housing and Urban Development, Department of Interior, Department of Heritage, Conservation, and Recreation Service Bureau of Indian Affairs Bureau of Land Management Bureau of Mines Bureau of Reclamation Geological Survey Minerals Management Service Office of Surface Mining, Reclamation, and Enforcement Minerals Management Service National Oceanic and Atmospheric Administration Solar Energy and Energy Conservation Bank U.S. Fish and Wildlife Service Labor, Department of Mine Safety and Health Administration Occupational Safety and Health Administration Transportation, Department of Federal Highway Administration Water Resources Council

Administrative Services, Department of 00170.01 70 Agriculture, Department of Natural Resources Division Soil and Water Conservation District Columbia River Gorge Commission Consumer and Business Services, Department of Insurance Division Oregon Occupational Safety and Health Division Energy, Office of Environmental Quality, Department of Fish and Wildlife, Department of Forestry, Department of Geology and Mineral Industries, Department of Human Resources, Department of Labor and Industries, Bureau of Land Conservation and Development Department Parks and Recreation, Department of State Lands, Department of Water Resources Department

City Councils County Courts County Commissioners, Boards of Design Commissions Historical Preservation Commissions Lane Regional Air Pollution Authority Planning Commissions Port Districts Special Districts

Burns Paiute Tribe Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians Confederated Tribes of Grand Ronde Confederated Tribes of Siletz Confederated Tribes of Umatilla Indian Reservation Confederated Tribes of Warm Springs Coquille Tribe Cow Creek Band of Umpqua Indians Klamath Tribe

00170.05 71 00170.02 Permits, Licenses, and Taxes - As required to accomplish the Work, the Contractor shall do the following:

• Obtain all necessary permits and licenses, except for those noted in 00170.03; • Pay all applicable charges, fees and taxes, except for those noted in 00170.03; • Give all notices required by applicable Laws, or under the terms of the Contract; • Comply with ORS 274.530 relating to lease of stream beds by Oregon Division of State Lands; • License, in the State of Oregon, al l vehicles subject to licensing; • Comply with ORS 477.625 and ORS 527.670 relating to clearing and fire hazards on forest lands; and • Comply with all orders and permits issued by a governmental authority, whether local, State, or federal.

00170.03Furnishi ng Right -of-Way and Permits - Unless required to be obtained in the name of

the Contractor, the Agency will obtain and pay for the following when they are required by the applicable Laws or by Plans or Specifications:

• All necessary Rights -of-Way; • Permits required for crossing or encroaching upon navigable streams; • Permits required for removing materials from or depositing materials in waterways; • Permits required for operating in Agency -controlled source of Materials or disposal area; • System development fe es charged by local units of government; • Building construction permits, not including specialty work such as heating, ventilation, air conditioning, or electrical; • Cost of referencing and replacing endangered survey monuments; and • Environmental permits, including erosion control permits.

00170.04Patents, Copyrights, and Trademarks - Prior to use of designs, devices, materials, or

processes protected by patent, copyright, or trademark, the Contractor shall obtain from the Entity entitled to enforce the patent, copyright, or trademark all necessary evidence of Contractor’s legal right to use such design, device, material, or process .

The Contractor shall indemnify, defend and hold harmless the Agency and all third parties and political subdivisions having a possessory or ownership interest or regulatory authority over the Project or Project Site from claims of patent , copyright or trademark infringement, and from costs, expenses and damages the Contractor or Agency may be obligated to pay as a result of such infringement during or after completing the Work.

00170.05Assignment of Antitrust Rights - The Contractor irrevocably assigns to the Agency any

claim for relief or cause of action the Contractor acquires during the term of the Contract, or which may accrue thereafter, by reason of any violation of:

• Title 15 (Commerce and Trade), United States Code; • ORS 646.725; or • ORS 646.730. In connection with this assignment, it is an express obligation of the Contractor to take no action that would in any way impair or diminish the value of the rights assigned to the Agency according to the provisions of this Subsection. Further, it is the express obligation of the Contractor to take all action 00170.07 72 necessary to preserve the rights assigned. It is an express obligation of the Contractor to advise the Agency's legal counsel:

• In advance, of its intention to commence any action involving such claims for relief or causes of action; • Immediately upon becoming aware of the fact that an action involving such claims for relief or causes of action has been commenced by some other person or persons; • Of the date on which it notified the obligor(s) of any such claims for relief or causes of action of the fact of the Contractor's assignment to the Agency according to the provisions of this Subsection; and • Immediately upon the discovery of any such antitrust claim for relief or cause of action. In the event any payment is made to the Contractor under any such claims for relief, the Contractor shall promptly pay the full sum over to the Agency. In the event the Contractor fails to makes uch payment, the Agency may deduct the amount from monies due or to become due the Contractor under the Contract.

00170.07Record Requirements - For purposes of this Subsection, the term "Contractor" includes

the Contractor, all Subcontractors, Material Suppliers, and providers of rented operated Equipment (except non-DBE truck drivers), at all tiers, for all subcontracts with first -tier Subcontractors, all subcontracts between the first -tier Subcontractors and their Subcontr actors and any other lower -tier subcontracts, and "Related Entities" as that term is defined in OAR 734-010-0400. The Material Suppliers included in this definition are those for Aggregates, asphalt cement concrete, portland cement concrete and the supply and fabrication of structural steel items , and Material Suppliers that provide quotes.

execution of the Contract, or during Contract performance, or after Contract completion, to clearly document:

• The Contractor's performance of the Contract or a subcontract; • The Contractor's ability to continue performance of the Contract or a subcontract; and • All claims arising from or relating to performance under the Contract or a subcontract. These records shall include all records, including fiscal records, regardless of when created for the Contractor's business. The records for the Contractor's business include, without limitation:

• Bidding estimates and records, worksheets, tabulations or similar documents. • Job cost detail reports, including monthly totals. • Payroll records (including , without limitation, the ledger or register, and tax forms) and all documents that establish the periods, individuals involved, the hours for the individuals, and the rates for the individuals. • Records that identify the Equipment used by the Contractor and Subcontractors in the performance of the Contract or subcontracts, including, without limitation, Equipment lists, rental contracts and any records used in setting rental rates. • Invoices from vendors, rental agencies, and Subcontractors. • Material quotes, invoices, purchase orders and requisitions. • Contracts with Subcontractors and contr acts with Material Suppliers, Suppliers and providers of rented Equipment. • Contracts or documents of other arrangements with any Related Entity as defined in OAR 734-010-0400. 00170.07 73 • General ledger. • Trial Balance. • Financial statements (including , without limitati on, the balance sheet, income statement, statement of cash flows, and financial statement notes). • Income tax returns. • All worksheets used to prepare bids or claims, or to establish the cost components for the Pay Items, including , without limitation, the l abor, benefits and insurance, Materials, Equipment, and Subcontractors.

The following are examples, but not an exhaustive list, of records that would be included, if generated by the Contractor. If the Contractor generates such records, or equivalent rec ords, they are included among the records subject to 00170.07.

• Daily time sheets and supervisors ' daily reports. • Collective bargaining agreements. • Earnings records. • Journal entries and supporting schedules. • Insurance, welfare, and benefits records. • Material cost distribution worksheet. • Subcontractors' and lower -tier Subcontractors' payment certificates. • Payroll and vendor's cancelled checks. • Cash disbursements journal. • All documents related to each and every claim together with all documents that support the amount of damages as to each claim. • Additional financial statements (including, without limitation , the balance sheet, income statement, statement of cash flows, and financial notes) preceding the execution of the Contract and following final payment of the Contract. • Depreciation records on all business Equipment maintained by the business involved, its accountant, or other Entity. (If a source other than depreciation records is used to develop cost for the Contractor's internal purposes in est ablishing the actual cost of owning and operating Equipment, all such other source documents.) The Contractor shall maintain all fiscal records in material compliance with generally accepted accounting principles, or other accounting principles that are accepted accounting principles and practices for the subject industry and adequate for the nature of the Contractor's business, and in such a manner that providing a complete copy is neither unreasonably time-consuming nor unreasonably burdensome for the Contractor or the Agency. Failure to maintain the records in this manner shall not be an excuse for not providing the records. The Contractor shall include in its subcontracts, purchase orders, and all other written agreements, a provision requiring all Su bcontractors, Material Suppliers and providers of rented operated Equipment (except non-DBE truck drivers), at all tiers , to comply with 00170.07. The Contractor shall also require all Subcontractors, Material Suppliers, and providers of rented operated Equipment (except non-DBE truck drivers), at all tiers , and Related Entities to include in their contracts, purchase orders, and all other written agreements, a provision requiring all lower -tier Subcontractors, Material Suppliers and providers of rented operated Equipment (except non-DBE truck drivers) to comply with 00170.07. The Material Suppliers to which this applies are those for Aggregates, asphalt cement concrete, portland cement concrete and the supply and fabrication of 00170.07 74 structural steel items and Material Suppliers that provide Material quotes and Related Entities as defined in OAR 734-010-0400.

Contractor records upon request. A Project Manager's authority to request or access records is subject to OAR 734-010-0400(9). During the record retention period the Engineer, employees of the Agency, representatives of the Agency, or representatives of regulatory bodies or units of government may:

• Inspect, examine and copy or be provided a copy of all Contractor records; Audit the records, a Contract or the performance of a Contract; • Inspect, examine and audit the records when, in the Agency's sole discretion, the records may be helpful in the resoluti on of any claim, litigation, administrative proceeding or controversy arising out of or related to a Contract. Reasons for access to audit, inspect, examine and copy records include without limitation, general auditing, reviewing claims, checking for coll usive bidding, reviewing or checking payment of required wages, performance and contract compliance, workplace safety compliance, evaluating Related Entities, environmental compliance, and qualifications for performance of the Contract, including the abili ty to perform and the integrity of the Contractor.

Where such records are stored in a computer or in other digital media, the Engineer may request, and the Contractor shall provide, a copy of the data files and such other information or access to software to allow the Engineer review of the records.

Nothing in 00170.07 is intended to operate as a waiver of the confidentiality of any communications privileged under the Oregon Evidence Code. Nothing in 00170.07 limits the records or documents that can be o btained by legal process.

accessible and available at reasonable times and places for at least 3 years from the date of final payment under the Contract, or unti l the conclusion of all audits, litigation, administrative proceedings, disputes and claims arising out of or related to the Contract, whichever date is later.

may be considered exempt from disclosure as a trade secret under either ORS 192.345(2) or ORS 646.461(4), or under other grounds specified in Oregon Public Records Law, ORS 192.311 through ORS 192.478, the Contractor shall clearly designate on or with the records the portions which the Contractor claims are exempt from disclosure, along with a justification and citation to the authority relied upon. Entire records or documents should not be designated as a trade secret or otherwise exempt from disclosure. Only specific information within a record or document should be so designated.

To the extent allowed by the Oregon Public Records Law or other applicable law related to the disclosure of public records, the Agency will not disclose records or portions of records the Contractor has designated as trade secrets to a third party, who is not a representative of the Agency, to the extent the records are exempt from disclosure as trade secrets under the Oregon Public Records Law or other applicable law, exce pt to the extent the Agency is ordered to disclose in accordance with the Oregon Public Records Law or by a court of competent jurisdiction. Application of the Oregon Public Records Law or other applicable law shall determine whether any record, document or information is actually exempt from disclosure. In addition, in response to a public records request, the Agency will not produce or disclose records so identified as exempt by the Contractor to any person other than representatives of the Agency, 00170.08 75 and others with authorized access under 00170.07(b), without providing the Contractor a copy of the public records request, unless:

• The Contractor consents to such disclosure; or • The Agency is prohibited by applicable law or court order from provi ding a copy of the public records request to the Contractor.

00170.08Electronic Document Management - The requirements of this Subsection do not apply

to claims. Claims must be submitted on paper documents according to Section 00199.

Following Notice to Proceed, the Contractor shall submit all documents for this Contract to the Agency in an electronic format using Doc Express®. No paper documents, faxes or other similar paper methods or media are permitted, unless otherwise allowed or directed by the Engineer. The Contractor shall be solely responsible for submitting documents to the Agency using Doc Express® for itself and for Subcontractors, Suppliers, vendors and other third parties. Only documents submitted by the Contractor and recorded in Doc Express® as received will be considered valid and received by the Agency. Following Notice to Proceed, all documents for this Contract will be managed in Doc Express®, unless otherwise allowed or directed by the Engineer. Following Notice to Proceed, the Contractor shall use Doc Express® to submit documents to the Agency, and the Agency will use Doc Express® to submit documents to the Contractor. The Contractor shall comply with naming conventions, drawer structure, and ot her Doc Express® instructions as specified in the ODOT Doc Express® User Guide for Construction Contractors, as may be revised from time to time and available from the Engineer. The Contractor shall provide all Subcontractors, Suppliers, vendors, and any other third parties receiving payment from the Contractor or any Subcontractor, Supplier, vendor, or any other third party, with read-only access to the Doc Express® drawer that contains payment documents from the Agency and the Contractor. The Contractor may provide Subcontractors, Suppliers, vendors, and any other third parties receiving payment from the Contractor or any Subcontractor, Supplier, vendor or other third party with read-only access to other Doc Express® drawers at the Contractor’s discretion. The Contractor shall not grant write access to Subcontractors, Suppliers, vendors or any other third parties or their respective officers, employees or agents.

Documents submitted according to this Subsection, from the Agency to the Contractor and fro m the Contractor to the Agency, are official documents for the Contract and will be accepted as such by both parties.

By submitting documents that originate from the Contractor to the Agency using Doc Express®, the Contractor is certifying that the documents are true and accurate and that if the document was required to be signed, it has been signed by a person with appropriate authority. By submitting documents to the Agency using Doc Express® that originate from a Subcontractor, Supplier, vendor, manufacturer or other third party, the Contractor is certifying that the documents are a true and complete copy of the documents the Contractor received, that if the document was required to be signed, it has been signed, and that the Contractor does not know, nor does it have reason to believe, that the documents are not true and accurate or signed by a person without appropriate authority.

In the event of a conflict between this Subsection and the Standard Specifications or other Special Provisions, this Subse ction shall control except for 00199.30. Costs associated with obtaining and maintaining access to Doc Express® and the use of Doc Express® are I ncidental to Mobilization.

00170.08 76 Failure to submit documents electronically, as required by this Subsection, may result in payments being withheld according to 00195.50(e).

The Contractor shall be responsible for causing access to Doc Express® to be disabled for any Entity or individual that is no longer assigned, employed or under contract in relati on to the Project or whose access is to be disabled due to improper activity. The Contractor’s obligation to disable access applies to its own officers, employees and agents and to all Subcontractors, Suppliers, vendors and other third parties and their r espective officers, employees and agents.

The Agency reserves the right to suspend or disable, or cause to be suspended or disabled, the access to Doc Express® for any Entity or individual at any time. Use and access for Doc Express® is provided “as is”. The Agency does not warrant that access to or functioning of Doc Express® will be error free, uninterrupted or meet the Contractor’s needs. The Agency is not responsible for any damage that may occur due to error, omission, lack of timeliness or other m alfunction of Doc Express® or its supporting systems. The Agency disclaims all liability arising from interference or interruption, viruses, telephone faults, malicious damage by anyone, electronic system downtime, overloading of the Internet or sites or any cause beyond the control of the Agency. The Agency reserves the right to temporarily suspend or cause to be suspended access to Doc Express®, without notice, because of maintenance, repair or any other reason deemed necessary for the proper functioning of Doc Express® by the Agency or Info Tech, Inc. In no event shall the State of Oregon, the Oregon Transportation Commission or the Agency or their respective members, officers, agents and employees be liable for any claims, suits, actions, losses, liabilities, damages, costs or expenses, including but not limited to attorney fees, of whatsoever nature, resulting from or arising out of the use of Doc Express® by the Contractor or Subcontractors, Suppliers, vendors or other third parties at any level or t heir respective officers, employees or agents. The Contractor’s indemnification, defense and hold harmless obligations under the Contract shall apply to the terms, conditions and requirements of 00170.08 and to use of Doc Express® and the acts, errors and omissions of the Contractor, Subcontractors, Suppliers, vendors and other third parties and their respective officers, employees and agents respecting access to and use of Doc Express®. The terms, conditions and requirements of 00170.08 and 00150.30 shal l be included in all contracts with all Subcontractors, Suppliers, vendors and other third parties at all levels for which access to Doc Express® will or may be required.

employees and agents to comply with, and shall require all Subcontractors, Suppliers, vendors and other third parties to comply with and to require their officers, employees and agents using or accessing Doc Express® to comply with 00170.08 and the following Additional User Terms and Conditions, all as may be revised from time to time:

As an officer, employee or agent of the Contractor or any Subcontractor, Supplier, vendor or other third party, respecting my use of or access to Doc Express®, I agree to the following, all as may be revised from time to time:

The terms, conditions and requirements of 00170.08 of the Contract; The Info Tech, Inc. Doc Express® Privacy Policy and Terms of Use and the Digital Millennium Copyright Act (DMCA) Policy, accessible from the Doc Express® registration site; The ODOT Doc Express® User Guide for Construction Contractors available from the Engineer; and The following Additional User Terms and Conditions: 00170.08 77 My use of and access to Doc Express® are conditioned on m y agreement to and my compliance with the foregoing and these Additional User Terms and Conditions.

I may have access to sensitive personnel, business, financial and/or security related information (“Confidential Information”) through use of Doc Express ®, and, except to the limited extent necessary to perform my duties, I will maintain its confidential status and will not share, publish or disseminate Confidential Information or other information obtained through Doc Express®, without regard to how ODOT may treat any such Confidential Information or other information. All information is also subject to the Oregon Public Records law (see 00170.07(d)). In addition, if I know or have reason to believe any information was inadvertently or improperly included in Doc Express®, I will immediately notify my employer for purposes of notification to the Contractor and the Contractor’s notification to ODOT.

I will not access any information I am not authorized to use or access and I will not browse or otherwise use or access information, files or documents that exceed the minimum necessary to perform my duties.

If my authorized use of and access to Doc Express® includes submitting documents into Doc Express® (or “read -write” access), I will not submit any documents or information into Doc Express® except those I am authorized to submit and necessary to perform my duties.

I have no expectation of privacy, rights or ownership of anything I may access, create, store, send or receive within Doc Express®, respecting any documents or information, including but not limited to Confidential Information of any individual or Entity. For audit or system security purposes, ODOT may monitor and/or record all activity conducted within Doc Express®. This includes but is not limited to the login identification information, times, dates and duration of access, as well as resources or documents accessed.

Unauthorized access or activities that could compromise the system or Confidential Information are strictly prohibited and patterns of unauthorized or unusual activity will result in access being immediately disabled, and possible further investigation.

If a breach of these terms and conditions or a security incident occurs, I will immediately notify my employer for purposes of notification to the Contractor and the Contractor’s notification to ODOT.

I will not share my password or other means of access with any other individual or Entity. Violation of this restriction or of any of these other Terms and Conditions w ill result in my access being immediately disabled.

I understand that my use of and access to Doc Express® is conditioned on my relationship to my employer and my employer’s relationship to one or more of: ODOT, the Contractor, a Subcontractor, Supplier, vendor or other third party, and that if I am no longer so employed or my employer no longer has such relationship, I will immediately cease my use of and access to Doc Express® and will immediately notify my employer for purposes of notification to the C ontractor and the Contractor’s notification to ODOT.

Engineer:

For all Change Orders that require signature by the Contractor for this Contract, the Contractor, by a person with appropriate authority, shall sign using a Doc Express® digital signature. 00170.10 78 Change Orders that require signature by the Contractor, but do not have a Doc Express® digital signature from the Contractor verifiable by the Engineer, will be considered as not received and of no effect. Documents other than Change Orders that contain digital signatures, but do not have a digital signature verifiable by the Engineer, or that were signed by a person without appropriate authority, will be considered as not received and of no effect. Notice requirements will not be satisfied and payments may be withheld for any affected W ork items until the required documents with verifiable digital signatures have been received.

all documents submitted to the Agency for this Contract that require a signature, other than Change Orders, shall be signed by a person with appropriate authority by applying:

An original handwritten signature to a document and scanning the document into PDF format; An electronic signature to a document and converting the document into PDF format; A third -party verifiable digital signature to a PDF document; or A Doc Express® electronic signature when prompted during submission of the document into Doc Express®.

Documents that require a signature, but do not have a signature in accordance with this Subsection, or were signed by a person without appropriate authority; or documents that were signed with a digital signature but are submitted in a form such that the digital signature is not verifiable by the Engineer, will be considered as not received and of no effect. Notice requirements will not be satisfied and payments may be withheld for any affected Work items until the required documents with compliant signatures have been received.

Unless otherwise allowed or directed by the Engineer, all documents submitted to the Agency for this Contract that do not require a signature shall be submitted using D oc Express®.

00170.10Required Payments by Contractors - The Contractor shall comply with ORS 279C.505

and ORS 279C.515 during the term of the Contract.

the Contractor shall:

• Make payment promptly, as due, to all Entities supplying labor or Materials under the Contract; • Pay all contri butions or amounts due the Industrial Accident Fund, whether from the Contractor or a Subcontractor, incurred in the performance of the Contract; • Not permit any lien or claim to be filed against the State or any political subdivision thereof, on account of any labor or Material furnished in performance of the Contract; and • Pay to the Department of Revenue all sums withheld from employees according to ORS 316.167.

ORS 279C.580(3)(a), after the Contractor has determined and certified to the Agency that one or more of its Subcontractors has satisfactorily performed subcontracted Work, the Contractor may request payment from the Agency for the Work, and shall pay the Subcontractor(s ) within 10 Calendar Days out of such amounts as the Agency has paid to the Contractor for the subcontracted Work.

00170.10 79 (c) Interest on Unpaid Amount - If the Contractor or a first -tier Subcontractor fails, neglects, or refuses to make payment to an Entity furnishing labor or Materials in connection with the Contract within 30 Days after the Contractor's receipt of payment, the Contractor or first -tier Subcontractor shall owe the Entity the amount due plus interest charges that begin at the end of the 10 Day period within which payment is due under ORS 279C.580(3) and that end upon final payment, unless payment is subject to a good -faith dispute as defined in ORS 279C.580(5)(b). As required by ORS 279C.515(2), the rate of interest on the amount due shall be 9 percent per annum. The amount of interest shall not be waived.

fails, neglects or refuses to make prompt payment of any invoice or other demand for payment for labor or services furnished to the Contractor or a Subcontractor by any Entity in connection with the Contract as such payment becomes due, the Agency may pay the Entity furnishing the labor or services and charge the amount of the payment against monies due or to become due the Contractor under the Contract. (The Agency has no obligation to pay these Entities, and ODOT will not normally do so, but will refer them to the Contractor and the Contractor's Surety.)

The payment of a claim by the Agency in the manner authorized in this Subsection shall not relieve the Contractor or the Contractor's Surety from obligations with respect to any such claims.

Subcontractor fails, neglects, or refuses to make payment to an Entity furnishing labor or Materials in connection with the Contract, the Entity may file a complaint with the Construction Contractors Board, unless payment is subject to a good-faith dispute as defined in ORS 279C.580(5)(b).

claiming not to have been paid in full for labor or Materials supplied for the prosecution of the Work may have a right of action on the Contractor' s Payment Bond as provided in ORS 279C.600 and ORS 279C.605.

The Commissioner of the Bureau of Labor and Industries (BOLI) may have a right of action on the Contractor's and Subcontractors' public works bonds and Payment Bonds for workers who have not been paid in full, as provided in ORS 279C.600 and ORS 279C.605.

734-2882, to the Engineer certifying payments made to all of the following:

• All Subcontractors Committed DB E Suppliers Non-committed DBE Suppliers and service providers with estimated total payments for the Project over $10,000. For this purpose, a committed DBE firm is one that was identified by the Contractor to meet an assigned DBE goal including DBE firms substituting for DBE firms committed as a condition of Contract Award. Submit the completed and signed Paid Summary Report to the Engineer within 20 Calendar D ays of receipt of payment from the Agency for each month in which payments were made to each Subcontractor, each committed DBE Supplier, and each non-committed DBE Supplier or service provider with estimated total payments for the Project over $10,000. At the completion of the Project, submit form 734- 2882 recapping the total amounts paid to eachS ubcontractor, each committed DBE Supplier, and each non committed DBE Supplier or service provider with estimated total payments for the Project over $10,000.

00170.20 80 The Contractor shall require each Subcontractor at every tier to comply with the requirement to submit form 734-2882 within 20 Calendar D ays of receipt of payment from its controlling contractor and provide a recap of the total amounts paid at the completion of the Project or completion of their Work.

Forms shall be submitted to an email address provided to the Contractor at the preconstruction conference.

00170.20Public Works Bond - Before starting Work, the Contractor and Subcontractors shall each

file with the Construction Contractors Board, and maintain in full force and effect, a separate public works bond, in the amount of $30,000 unless otherwise exempt, as required by ORS 279C.830( 2) and ORS 279C.836. The Contractor shall verifyS ubcontractors have filed a public works bond before the Subcontractor begins Work.

00170.32Protection of Navigable Waters - The Contractor shall comply with all applicable Laws,

including, without limitation , the Federal River and Harbor Act of March 3, 1899 and its amendments. The Contractor shall not interfere with waterway navigation or impair navigable depths or clearances, except as U.S. Coast Guard or Corps of Engineer permits allow.

00170.60Safety, Health, and Sanitation Provisions - The Contractor shall comply with all Laws

concerning safety, health, and sanitation standards. The Contractor shall not require workers to perform Work under conditions that are hazardous, dangerous, or unsanitary.

Workers exposed to traffic shall wear upper body garments or safety vests that are highly visible and meet the requirements of 0022 1.20.

Workers exposed to falling or flying objects or electrical shock shall wear hard hats.

Upon their presentation of proper credentials, the Contractor shall allow inspectors of the U.S. Occupational Safety and Health Administration (OSHA) and the Oregon Occupational Safety and Health Division (OR -OSHA) to inspect the Work and Project Site without delay and without an inspection warrant.

According to ORS 468A.715 and ORS 468A.720, the Contractor or a Subcontractor who performs Project Work involving asbestos abatement shall possess a valid DEQ asbestos abatement license.

00170.61Industrial Accident Protection :

on-the -job injuries as required by 00170.70(d).

adjacent to navigable waters, the Longshoremen's and Harbor Workers' Compensation Act, (Chapter 18, Title 33 of the USC) may apply, and the Contractor shall be responsible for complying with its provisions (which may include the provision of additional workers' compensation benefits to employees).

00170.62Labor Nondiscrimination - The Contractor shall comply with all Laws concerning equal

employment opportunity, including, without limitation , those prohibiting discriminati on because of race, religion, color, sex, disability, or national origin. It is a material term of this Contract that the Contractor certifies by entering into this Contract that the Contractor has a written policy and practice that meets the requirements described in ORS 279A.112 for preventing sexual harassment, sexual assaul t and discrimination against employees who are 00170.65 81 members of a protected class and that the Contractor shall maintain the policy and practice in force during the entire term of this Contract.

00170.63Payment for Medical Care - According to ORS 279C.530, t he Contractor shall promptly,

as due, make payment to any person, copartnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the Contractor, of all sums that the Contractor agrees to pay for the services and all moneys and sums that the Contractor has collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services.

00170.65Minimum Wage and Overtime Rates for Public Works Projects:

does not imply that labor can be obtained at the minimum hourly wage rates specified in State or federal wage rate publications, and no increase in the Contract Amount will be made if wage rates paid are more than those listed.

As required by ORS 279C.520, the Contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of the 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 dist inguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. The Contractor’s compliance with this provision constitutes a material element of the Contract and failure to comply constitutes a material breach that entitles the Agency to exercise any remedies available under the Contract, including, but not limited to, termination for default. As required by ORS 279C.520, t he Contractor shall not prohibit any of the Contractor's employees from discussing the employee's rate of wage, salary, benefits or other compensation with another employee or another person and 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.

provisions of ORS 279C.800 through ORS 279C.870.

publishes the existing State prevailing wage rates in the publication Prevailing Wage Rates for Public Works Contracts in Oregon. The Contractor shall pay workers not less than the specified minimum hourly wage rate according to ORS 279C.838 and ORS 279C.840, and shall include this requirement in all subcontracts. See the Project Wage Rates page included with the Special Provisions for additional information about which wage rates apply to the Project and how to access the applicable wage rates.

The applicable BOLI wage rates will be included in the Contract.

every Subcontractor shall submit written certified statements to the Engineer on the form prescribed by the Commissioner of BOLI in OAR 839-025-0010 certifying compliance with wage payment requirements and accurately setting out the Contractor's or Subcontractor's weekly payroll records for each worker employed on the Proje ct.

The Contractor and Subcontractors shall preserve the certified statements for a period of 6 years from the date of completion of the Contract.

00170.65 82 (3) Additional Retainage :

earned by the Contractor on the Project until the Contractor has filed the certified statements required in ORS 279C.845 and in FHWA Form 1273, if applicable. The Agency will pay t o the Contractor the amount retained within 14 Days after the Contractor files the required certified statements, regardless of whether a Subcontractor has failed to file certified statements.

amount earned by a first -tier Subcontractor on the Project until the first -tier Subcontractor has filed with the Agency the certified statements required in ORS 279C.845 and in FHWA Form 1273, if applicable. Before paying any amount retained, the Contractor shall verify that the first-tier Subcontractor has filed the certified statement. Within 14 Days after the first-tier Subcontractor files the required certified statement , the Contractor shall pay the first -tier Subcontractor a ny amount retained.

owner/operator providing trucking services. Furnish the data before the time the services are performed and include with out limitation for each owner/operator:

• Driver 's name; • Present driver license upon request ; • Vehicle identification number; • Present vehicle registration upon request ; • Motor vehicle license plate number; • Motor Carrier account number; • Present ODOT Motor Carrier 1A Permit upon request ; and • Name of owner/operator from the side of the truck.

with the pertinent provisions of ORS 279C.520 and ORS 279C.540.

shall be employed to perform Work under this Contract for more than 10 hours in any 1 Day, or 40 hours in any 1 week, except in cases of necessity, emergency, or where public policy absolutely requires it. In such instances, the Contractor shall pay the employee at least time and a half pay:

• For all overtime in excess of 8 hours a day or 40 hours in any 1 week when the work week is 5 consecutive days, Monday through F riday; or • For all overtime in excess of 10 hours a day or 40 hours in any 1 week when the work week is 4 consecutive days, Monday through Friday; and • For all Work performed on Saturday and on any legal holiday specified in ORS 279C.540 .

For additional information on requirements for overtime and establishing a work schedule see OAR 839-025- 0050 and OAR 839-025 -0034.

number of hours per day and days per week the employees may be required to work. Provide the notice either at the time of hire or before commencement of work on this Contract, or by posting a notice in a location frequented by employees. 00170.65 83

will not apply to the Contractor's Work under this Contract if the Contractor is a party to a collective bargaining agreement in effect with any labor organization. For a collective bargaining agreement to be in effect it shall be enforceable within the geographic area of the Project, and its terms shall extend to workers who are working on the Project (see OAR 839-025-0054).

employed by the Contractor is foreclosed from the right to collect any overtime provided in ORS 279C.540 unless a claim for payment is filed with the Contractor within 90 Days from the completion of the Contract, provided the Contractor posted and maintained a circular as specified in this provision. Accordingly, the Contractor shall:

• Cause a circular, clearly printed in boldfaced 12-point type and containing a copy of ORS 279C.545, to be posted in a prominent place alongside the door of the timekeeper's office or in a similar place that is readily available and freely visible to any or all workers employed to perform Work; and • Maintain such circular continuously posted from the inception to the completion of the Contract on which workers are or have been employed.

involved, the following requirements shall apply in addition to the requirements of 00170.65(a) through 00170.65(d). The Co ntractor shall include these provisions in all subcontracts as well as ensure that all Subcontractors include these provisions in their lower -tier subcontracts.

provisions of FHWA Form 1273, Required Contract Provisions Federal -aid Construction Contracts .

employed to perform any work under the C ontract not less than the existing State (BOLI) prevailing wage rate or the applicable federal prevailing wage rate required under the Davis -Bacon A ct (40 U.S.C. 3141 et seq.), whichever is higher. The Contractor shall include this provision in all subcontracts.

See the Project Wage Rates page included with the Special Provisions for additional information about which wage rates apply to the Project and how to access the applicable wage rates .

The applicable Davis -Bacon and BOLI wage rates will be included in the Contract.

certifie d statements required under ORS 279C.845 (see 00170.65(b)(2)), the Contractor and every Subcontractor shall submit written certified statements that also meet the requirements in Section IV of FHWA Form 1273, except the Contractor and every Subcontractors hall preserve the certified statements for a period of 6 years from the date of completion of the Contract.

provision affording the greatest compensation required under FHWA Form 1273 and ORS 279C.540.

00170.70 84 00170.70 Insurance :

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. 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 Agency approval of Subcontractor and Subcontractor’s insurance coverage(s), as required by 00180.21, prior to commencement of Subcontracted work. After the Contractor receives Agency 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. The Contractor shall require that all Subcontractors carry insurance coverage that the Contractor deems appropriate based on the risks of the sub contracted work. The Contractor shall obtain proof of the required insurance coverages, as applicable, from any Subcontractor providing Services related to the Contract.

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.

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

• Commercial General Liability – The Contractors hall provide Commercial General Liability Insurance written on an occur rence basis and covering the Contractor’s liability for bodily injury and property damage. This insurance shall include personal and advertising injury liability , products and completed operations coverage, and contractual liability coverage . Coverage may be written in combination with Commercial Automobile Liability Insurance with separate limits for Commercial General Liability and Commercial Automobile Liability. Combined single li mit per occurrence shall not be less than the dollar amount specified in the Special Provisions. The annual aggregate limit shall not be less than the dollar amount specified in the Special Provisions. The policy shall be endorsed to state that the annual aggregate limit of liability shall apply separately to the Contract.

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.

• Commercial Automobile Liability – The Contractor shall provide Commercial Automobile Liability Insurance covering all 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. Combi ned single limit per occurrence shall not be less than the dollar amount specified in the Special Provisions. If this coverage is written in combination with the 00170.70 85 Commercial General Liability, the policy shall be endorsed to state that the Commercial General Liability annual aggregate limit shall apply separately to the Contract.

Commercial Automobile Liability (pedestrian transport vehicle for pedestrian circulation) - The Contractor or Subcontractor, whichever is performing the vehicle transportation for pedestrian circulation, shall provide Commercial Automobile Liability Insurance covering all owned, non-owned, and hired vehicles for bodily injury and property damage. This coverage may be written in combination with the Commercial Gen eral 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 Special Provisions.

• Pollution Liability - If indicated by Special Provision, the Contractor or Subcontractor, whichever is performing the pollution related Work, shall provide Pollution Liability Insurance written on an occurrence or claims made basis and covering the Contractor's or Subcontractor’ s liability, for bodily injury , property damage, and environmental damage resulting from sudden, accidental , and gradual pollution, and related clean-up costs. If the coverage is obtained by the Contractor, the coverage may be written in combination with the Commercial General Liability Insurance with separate limits for Pollution Liability and Commercial General Liability. Combined single limit per occurrence shall not be less than the dollar amount specified in the Special Provisions. The annual aggregate limit shall not be less than the dollar amount specified in the Special Provisions. The policy shall be endorsed to state that the annual aggregate limit of liability shall apply separately to the Contract.

• Asbestos Liability - If indicated by Special Provision, the Contractor, or Subcontractor, whichever is performing asbestos related Work , shall provide the Pollution Lia bility coverage with an Asbestos Liability endorsement. If an endorsement cannot be o btained, the Contractor or Subcontractor shall provide separate Asbestos Liability Insurance at the same combined single limit per occurrence and annual aggregate limit as the Pollution Liability Insurance with the policy endorsed to state that the annual aggregate limit of liability shall apply separately to the Contract.

• Lead Liability - If indicated by Special Provision, the Contractor or Subcontractor, whichever is performing lead related Work , shall provide the Pollution Liability coverage with a Lead Liability endorsement. If an endorsement cannot be obtained, the Contractor or Subcontractor shall provide separate Lead Liability Insurance at the same combined single limit per occurrence and annual aggregate limit as the Pollution Liability Insurance with the separate policy endorsed to state that the annual aggregate limit of liability shall apply separately to the Contract.

• Commercial Automobile Liability with Pollution Coverage - If indicated by Special Provision, the Contractor or Subcontractor, whichever is performing the pollution related Work , shall provide Commercial Automobile Liability Insurance with Pollution coverage covering the Contractor's or Subcontractor’s liability for bodily injury , property damage, natural resource damage, and envir onmental damage arising out of the use of all owned, non-owned, or hired vehicles while performing Work under the Contract. Combined single limit per occurrence shall not be less than the dollar amount specified in the Contract. If the coverage is obtained by the Contractor, the coverage may be written in combination with the Commercial General Liability Insurance with separate limits for Commercial Automobile Liability with Pollution Coverage and Commercial General Liability. If this coverage is written in combination with the Commercial General Liability, the policy shall be endorsed to state that the Commercial General Liability annual aggregate limit shall apply separately to the Contract.

00170.70 86 Marine Insurance (watercraft) - If indicated by Special Provision, the Contractor or Subcontractor, whichever is performing watercraft related Work, entails the use of watercraft, including but not limited to barges, tug boats, work boats, and supply boats, shall provide the following insurance:

• Marine Liability In surance - For the performance of the Work that requires the use of any watercraft, whether owned, non-owned, leased, rented, or chartered by Contractor or any Subcontractors, Marine Liability insurance shall not be less than the dollar amount specified in the Special Provisions per occurrence for bodily injury and property damage. Such insurance shall also include coverage for collision liability, tower’s liability, marine contractual liability, wreck/debris removal, and liability for seepage, pollution, c ontainment and cleanup.

• Hull and Machinery Insurance - Including collision liabil ity, with sister -ship clause un-amended, with limits of liability at least equal to the full value of all vessels used in connection with performance of the Work required under this Contract and with navigational limitations adequate for the Contractor to perform the specified Work. Where vessels engage in towing operations, said insurance shall include full towers’ liability with the sister -ship clause un -amended.

• Protection and Indemnity Insurance - To be evidenced through a full entry with a Group P&I Club, including collision liability, towers’ liability, marine contractual liability, tankermans’ liability, and specialist operations. Alternatively, if a full ent ry in a Group P&I Club is not available or applicable, Protection and Indemnity Insurance coverage shall be evidenced on the SP -23 form or equivalent, including, by endorsement or otherwise, collision liability, tower’s liability, specialist operations, an d liability for seepage, pollution, containment and cleanup, with extensions for marine contractual liability, shall not be less than the dollar amount specified in the Special Provisions .

• Pollution Liability Insurance - If pollution coverage is provided outside of a P&I Club entry or outside of Protection and Indemnity Insurance coverage evidenced on the SP -23 form or equivalent , the amount shall not be less than the dollar amount specified in the Special Provisions . Pollution liability coverage shall cover bodily injury, property damage, including cleanup costs and defense costs resulting from sudden and gradual pollution conditions of contaminants or pollutants into or upon the land, the atmosphere or any water course or body of water.

With re spect to the aforementioned Hull & Machinery Insurance, Protection and Indemnity Insurance and Pollution Insurance, the policy or policies shall be endorsed as follows:

• Other than owner provisions of all policies shall be deleted with respect to the namin g of Company as an Additional Assured/Insured; • Delete any as owner clause and any other language, which limits or purports to limit the coverage afforded to an insured or an additional insured who is not a ship- owner, with coverage to be afforded to all additional insureds in any capacity in which they may be held liable; and • Operator warrants that COFR’s are on file with the U.S. Coast Guard as per Federal requirements. If Subcontractor(s) are utilized to perform any Work that requires the use of watercraft under the Contract, all such Subcontractor(s) shall maintain insurance including limits, coverages, terms and conditions as required herein unless said Subcontractor(s) are insured by Contractor. Where Contractor provides coverage for a Subcontractor, the Contractor shall issue a Certificate 00170.70 87 of Insurance, along with related endorsement(s) required to effect coverage, evidencing Subcontractor’s “Additional Insured/Assured” status under Contractor’s coverage.

An Excess Marine Liability insurance policy m ay be used to meet the required limits of insurance. Excess coverage must follow form and be as broad as that provided by the underlying primary liability insurance policies .

ORS 15.320 provides that Oregon law applies to the Contract. The parties also agree that Oregon law applies to the Contract, even if ORS 15.320 is determined to be inapplicable or invalid.

made” basis, the Contractor or Subcontractor w ho 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 the Agency or the date of Final Acceptance. This extended reporting requirement shall be satisfied with documentation of one of the following:

Extended Reporting Endorsement; Tail Coverage; or Maintaining the applicable continuous claims made policy with liability coverage.

The Contractor or Subcontractor shall furnish certification of this extended reporting requirement as a condition to receive Third Notice under 00150.90(b) and 00180.50(g).

be used to meet the required limits of insurance. Excess/Umbrella 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 .

Additi onal 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 Contract or's activities to be performed under the Contract. Coverage shall be primary and non-contributory with any other insurance and self -insurance. The liability coverages of 00170.70(a) that are permitted by the Agency 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 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 w ith the Certificate(s) of Insurance and must be acceptable to the Agency.

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 limits not less than $500,000 each accident .

00170.70 88 The Contractor shall certify in the Contract that the Contractor is registered by the Oregon Workers' Compensation Division either as a carrier -insured employer, a self -insured employer, an exempt employer, or is an independent contractor who will perform the Work without the assistance of others.

The Contractor shall require and verify that its insurance carrier files a guaranty contract with the Oregon Workers' Compensation Division before performing any Work.

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 a pplicable Workers’ Compensation Laws. The coverage shall also include Employer’s Liability Insurance with limits not less than $500,000 each accident.

If the Contractor’s and Subcontractor‘s, if any, operations include use of watercraft on navigable wate rs and employ persons in applicable positions, a Maritime Coverage Endorsement must be added to the Workers’ Compensation policy, unless coverage for captain and crew is provided in a Protection and Indemnity policy.

If the Contractor and Subcontractor, i f any, conducts its operations in proximity to navigable waters and employ persons in applicable positions, United States Longshore and Harbor Workers’ Compensation Act coverage must be endorsed onto the Workers’ Compensation policy. The Contractor shall require compliance with these requirements in all Subcontractor contracts.

notice to the Agency 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 Days’ written notice to the Agency 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, Agency, County, City, or other applicable political jurisdiction or to the Agency's governing body, board, or Commission and its members, and the Agency's officers , agents, and employees.

Contract, the Contractor shall furnish Certificate(s) of Insurance to the Agency at the time(s) provided in 00130.50(a). As evidence of insurance coverages required by th e Contract but permitted by the Agency under 00170.70(a) to be obtained by an appropriate Subcontractor, the Contractor shall furnish Certificate(s) of Insurance to the Agency for such coverages together with the Contractor's request under 00180.21 for approval of the subcontract with that Subcontractor . 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 Workers’ Compensation; Include a list of all policies that fall under the Excess/Umbrella Insurance if Excess or Umbrella Insurance is used to meet the minimum insurance requirement.

acceptance. In addition, all of the following are subject to Agency acceptance and, i f requested by 00170.72 89 Agency, the Contractor shall provide complete copies of the following to Agency’s representatives responsible for verification of the insurance coverages required by the Contract : insurance policies, endorsements, self -insurance documents and related insurance documents .

requirements by Agency under the Contract and to provide updated requirements as mutually agreed upon by the Contractor and Agency.

and keep in effect during the term of the Contract, Builder ’s Risk Insurance on an all risks of direct physical loss basis, including, without limitation, earthquake and flood damage, for an amount equal to at least the value specified in the Special Provisions. The policy shall not contain a coinsurance clause or any collapse exclusions. Any deductible shall not exceed $50,000 for each loss, except that the earthquake and flood deductibl e shall not exceed 5% of each loss or $50,000, whichever is greater. The policy shall include the State of Oregon as loss payee.

obtain, at its expense, and keep in effect during the term of the Contract, Builder’s Risk Installation Floater Insurance covering the Contractor's M aterials and Equipment to be used for completion of the Work performed under the Contract. The minimum amount of coverage to be carr ied shall be equal to the full amount of the C ontractor ’s Equipment, Materials, or fixtures to be installed, in- transit, or stored off -site during the performance of the Contract. This insurance shall include as loss payees the State of Oregon, the Owner, the Contractor and Subcontractors as their interests may appear.

00170.71Independent Contractor Status - The service or services to be rendered and the Work to

be completed under this Contract are those of an independent contractor as defined in ORS 670.600. The Contractor is not an officer, employee, or agent of the Agency or the State as those terms are used in ORS 30.265.

00170.72Indemnity/Hold Harmless - To the fullest extent permitted by law, and except to the extent

other wise void under ORS 30.140, the Contractor shall indemnify, defend (with counsel approved by the Agency) and hold harmless the Agency, Agency's Authorized Representative, Architect/Engineer, Architect/Engineer's consultants, and their respective officers, directors, agents, employees, partners, members, stockholders and affiliated companies (collectively "Indemnitees") from and against all liabilities, damages, losses, claims, expenses (including reasonable attorney fees), demands and actions of any nature whatsoever that arise out of, result from or are related to the following:

• Any damage, injury, loss, expense, inconvenience or delay described in this Subsection. • Any accident or occurrence that happens or is alleged to have happened in or about the Project Site or any place where the Work is being performed, or in the vicinity of either, at any time prior to the time the Work is fully completed in all respects. • Any failure of the Contractor to observe or perform any duty or obligation under the Contract Documents that is to be observed or performed by the Contractor, or any breach of any agreement, duty, obligation, responsibility, covenant, provision, requirement, representation or warranty of the Contractor contained in the Contract Documents or in any s ubcontract. • The negligent acts or omissions of the Contractor, a Subcontractor or anyone directly or indirectly employed by them or any one of them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expens e is caused in part by a party indemnified hereunder. Any failure to comply with all applicable Laws by the Contractor or any Subcontractor, or anyone employed by any one of them, or anyone for whose acts they may be liable. • Any lien filed upon the Project or bond claim in connection with the Work. 00170.74 90 Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Subsection. In claims against any person or Entity indemnified under this Subsection by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Subsection shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts.

Notwiths tanding the Contractor’s foregoing defense obligations, neither the Contractor nor any attorney engaged by the Contractor shall defend any claim in the name of the Agency, nor purport to act as legal representative of the Agency or any of its agencies, wit hout the prior written consent of the Agency's legal counsel, which in the case of ODOT is the Oregon Attorney General. The Agency may, at any time at its election , assume its own defense and settlement in the event that it determines that the Contractor is prohibited from defending the Agency, or that the Contractor is not adequately defending the Agency's interests, or that an important governmental principle is at issue or that it is in the best interests of the Agency to do so. The Agency reserves all rights to pursue any claims it may have against the Contractor.

00170.74Employee Drug Testing Program - As required by ORS 279C.505(2), the Contractor

shall have in place, and maintain during the period of the Contract, an employee drug-testing progra m. The Agency retains the right to audit and/or monitor the program. On request by the Engineer, the Contractor shall furnish a copy of the employee drug -testing program.

00170.78Conflict of Interest - The Contractor shall not give or offer any gift, loan, or other thing of

value to any member of the Agency's governing body or employee of the Agency in connection with the award or performance of any Contract. The Contractor shall not rent, lease, or purchase Materials, supplies, or Equipment, with or through any Agency employee or member of the Agency's governing body.

No ex -employee of the Agency who has worked for the Agency on any phase of the Project within the prior 2 years may be employed by the Contractor to perform Work on the Project.

The Contractor shall also be and remain in compliance with the Agency's Conflict of Interest Guidelines. ( See 00120.40(g) and 00180.21(b) .)

00170.79Third Party Beneficiary - There are no third-party beneficiaries of the Contract

00170.80Responsibility for Damage to Work :

Materials and Equipment for incorporation into the Work, at the Contractor's own risk, until the entire Project has been completed and accepted by the Agency. The Contractor shall repair all damages to Work performed, Materials supplied, and Equipment incorporated into the Work, except as otherwise provided in this Section.

repair, restore, and make good damages to all portions of the permanent or temporary Work, except to the extent the Agency has assumed responsibility according to the provisions of (c) below . The Contractor shall perform all repairs of damage to Work at no additional cost to the Agency, except for repairs necessitated by damage caused by:

00170.80 91 • Acts of God or Nature, as defined in Section 00110; or • Actions of governmental authorities.

for relief of responsibility for damage to Work caused by Public Traffic by submitting a signed Contractor's Request for Relief of Responsibil ity, form 734-2768, to the Engineer by mail, personal delivery , courier, scanned and submitted via email , or other agreed-upon method.

The Engineer will process a maximum of two forms per month and return the forms within 7 Calendar Days indicating each i tem as "approved" or "denied".

The approval of the Engineer is limited, and is made only for the purposes of determining relief of responsibility for damage to completed portions of the Work caused by Public Traffic. The completed portions of the Work ar e not considered complete, and are not finally accepted for any other purposes under the Contract. If the Contractor disagrees with the Engineer's findings, the Contractor may request a Region level review according to 00199.40(b).

assume responsibility for damages caused by Public Traffic, to the following completed portions of the Work:

• A segment of Roadway, drainage facilities, Slopes, lighting, Traffic Control Devices and access facilities; • A Bridge or other Structure within a segment of Roadway; • Traffic signals and appurtenances at an intersection; • Permanent, passive Traffic Control Devices; • Complete circuits of a highway lighting system; and • Portions of a building open to public use.

The Agency will approve a request for the Agency to assume responsibility for damages to the completed portions of the Work caused by Public Traffic only under the following conditions:

• The completed portions of the Work are completed according to Contract Change Orders, the Plans or approved stage construction Plans; • The traffic control complies with approved T raffic Control Plans; and • All required Materials conformance and quality compliance documents pertaining to the completed portions of the Work are on file with the Engineer (see Section 00165).

portions of the Work caused by Public Traffic , any damages will be repaired by the Contractor on a Changed Work basis, or by Agency forces, or by other means as determined by the Engineer. If completed portions of the Work are damaged by Public Traffic before Final Inspection, and the Agency requires the Contractor to repair the damages, the Engineer will reimburse the Contractor for the Changed Work at 75% of the total amount calculated according to Section 00197. If completed portions of the Work are damaged by Public Traffic after Final Inspection, and the Agency requires the Contractor to repair the damages, the Engineer will reimburse the Contractor for the Work at 100% of the total amount calculated according to Section 00197.

00170.82 92 If any additional Work is performed by the Contractor on completed portions of the Work for which the Agency has assumed responsibility for damages caused by Public Traffic , and the Work is performed outside of the approved stage construction Plans or approved Traffic Control Plans, the Contractor shall become fully responsible and liable, and shall make good all damages caused by Public Traffic at no additional cost to the Agency.

Work that remain on the Project Site resulting from vandalism, criminal mischief, arson, or other criminal or illegal behavior.

The Contractor shall provide reasonable protection of the Work from vandalism until Third Notification . If reasonable protection has been provided, the Contractor's responsibility for damage resulting from vandalism will be limited to $5,000.00 per occurrence. Requests for reimbursement of amounts in excess of $5,000.00 shall be in writing and directed to the Engineer. Upon receipt, the Engineer will investigate, evaluate the amount of damages and their cause, determine the number of occurrences, and determine whether, and how much, the Contractor will be compensated.

Theft includes the loss of Work or portions of Work that are lost or stolen or otherwise unaccounted for from the Project Site or from Materials or fabrication locations. The Contractor shall remain solely responsible for all losses caused by theft, including, without limitation, theft that occurs in conjunction with vandalism.

00170.82Responsibility for Damage to Property and Facilities:

agents, Subcontractors, and all workers performing Work under the Contract; and the term "damage" shall include without limitation soiling or staining surfaces by tracking or splashing mud, asphalt, and other materials, as well as damage of a more serious nature. The Contractor shall be solely responsible for dam ages arising from:

• The Contractor's operations; • The Contractor's negligence, gross negligence, or intentional wrongful acts; and • The Contractor's failure to comply with any Contract provision. The Agency may withhold funds due the Contractor or the Contractor's Surety until all lawsuits, actions, and claims for injuries or damages are resolved, and satisfactory evidence of resolution is furnished to the Agency.

apply to H ighways, Highway Structures and other improvements that are existing, under construction, or completed. The Contractor shall:

• Provide adequate protection to avoid damaging Agency property and facili ties; • Be responsible for damage to Agency property and facilities caused by or resulting from the Contractor's operations; and • Clean up and restore such damage by repair, rebuilding, replacement, or compensation, as determined by the Engineer.

determine the location of properties and facilities that could be damaged by the Contractor's operations, and shall protect them from damage. The Contractor shall protect monuments and property marks until the Engineer has referenced their location and authorized their removal. The 00170.85 93 Contractor shall restore property or facilities damaged by its operations to the condition that existed before the damage, at no additional compensation.

The Contractor shall provide temporary facilities when needed, (e.g., to maintain normal service or as directed by the Engineer ), until the required repair, rebuilding, or replacement is accomplished.

The Contractor shall protect specific service signs, (e.g., business logos, and tourist -oriented directional signs (TODS) ) from damage, whether the signs are to remain in place or be placed on temporary supports. The Contractor shall repair or replace damaged signs at no cost to the Agency. Liquidated damages will be assessed against the Contractor in the amount of $200 per Day for each sign out of service for more than 5 Calendar Days because of the Contractor's operations.

00170.85Responsibility for Defective Work - The Contractor shall make good any defective Work,

Materials or Equipment incorporated into the Work, according to the provisions of Section 00150.

other than fraud or gross mistakes that amount to fraud until the expiration of all applicable statutes of limitation and ultimate repose, the Performance Bond, Warranty Bond, or warranty period, whichever expires last. The Contractor shall remain liable for all latent defects resulting from fraud or gross mistakes that amount to fraud regardless of when those latent defects may be discovered, and regardless of whether such discovery occurs outside any applicable statutes of limitation or ultimate repose or any applicable Performance Bond, Warranty Bond, or warranty period.

this 00170.85(b)(1) warranty, the Contractor warrants that the Work for those Items, including Changed Work, Additional Work, Incidental Work, On-Site Work, and Extra Work, and Materials and Equipment incorporated into the Work, shall meet the technical and performance Speci fications required under the Contract. The warranty period will be identified in each applicable Specification or elsewhere in the Contract and will begin on the date of Second Notification. The Contractor shall be responsible for making good the Work, a nd for all repairs of damage to the Work and other improvements, natural and artificial structures, systems, equipment, and vegetation caused by, or resulting in whole or in part from, defects in warranted Materials, Equipment, and workmanship. The Contra ctor shall be responsible for all costs caused by, or resulting in whole or in part from, defects in warranted Materials, Equipment, or workmanship.

When the Agency makes written notification of failure of an item covered by this warranty, the warranty period will stop for the effected item or the portion of the effected item that failed, as applicable, until the required repairs or replacements are made and accepted. All repaired or replaced items shall meet current Specifications, unless otherwise specif ied in the Contract, and will be warranted for the remaining warranty period. This warranty provision shall survive expiration or termination of the Contract.

adver tised, awarded, and administered by Local Agencies, and do not contain federal funding, this 00170.85(b)(2) warranty applies. The Contractor shall warrant all Work and workmanship, including Changed Work, Additional Work, Incidental Work, On- Site Work, an d Extra Work, and Materials and Equipment incorporated in the Work, for 1 year from the date of Second Notification, except that warranties 00170.85 94 according to 00170.85(b)(1) and manufacturers' warranties and extended warranties according to 00170.85(c) shall not be abridged.

The Contractor shall be responsible for meeting the technical and performance Specifications required, making good the Work, and for all repairs of damage to the Work and other improvements, natural and artificial structures, systems, equipm ent, and vegetation caused by, or resulting in whole or in part from , occurrences beginning during the warranty period and are the result of defects in Materials, Equipment, and workmanship. The Contractor shall be responsible for all costs associated wit h completing the repair of the defects and for associated Work including, but not limited to, permitting, mobilization, traffic control, erosion control, surface restoration, site cleanup and remediation caused by, or resulting in whole or in part from, defects in Materials, Equipment, or workmanship, and other Work determined by the Engineer to be necessary to complete the repair of the defects.

Within 10 Calendar Days of the Agency's written notice of defects, the Contractor, or the Contractor's Surety, shall vigorously and continuously correct and repair the defects and all related damage. If the Contractor or the Contractor's Surety fails to correct and repair the defects, the Agency may have the correction and repair done by others. The Contractor or Contractor's Surety shall promptly reimburse the Agency for all expenses incurred to correct and repair the defects.

In the event of an emergency, where delay could result in serious loss or damage, the Agency may make emergency corrections and repairs w ithout written notice. The Contractor or Contractor's Surety shall promptly reimburse the Agency for all expenses incurred to correct and repair the defects. Corrections, repairs, replacements or changes shall be warranted for an additional 1 year period beginning on the date of the Agency's acceptance of the corrections, repairs, replacements or changes. Without limiting the general applicability of other survival clauses under the Contract, this warranty provision shall survive expiration or termination of the Contract.

the Contractor shall furnish Warranties from the Manufacturer and signed by a M anufacturer's Representative.

The warranty period will be specified in the applicable Specification Section for which it applies.

The warranty period will begin on the date of Second Notification.

When the Agency makes written notification to the Manufacturer of failure of an item covered by this warranty, the warranty period will stop for the effected item or the portion of the effected item that failed, as applicable, until the required repairs or replacements are made and accepted. All repaired or replaced items shall meet current Specifications, unless otherwise specified in the Contract, and will be warranted for the remaining warranty period. If, in the opinion of the Engineer, temporary repai rs are necessary, the temporary repairs will be made by the Agency or an independent contractor at the Manufacturer's expense. The Manufacturer shall replace all temporary repairs at no additional cost to the Agency.

The Manufacturer shall provide all required traffic control during repair or replacement of failed items at no additional cost to the Agency. 00170.94 95 Warranty work shall be performed when weather permits.

trade practice guarantees, the Contractor shall furnish the guarantees to the Engineer at the completion of the Contract.

00170.89Protection of Utility, Fire -control, and Railroad Property and Services; Repair;

Roadway Restoration :

The Contractor shall avoid damaging the properties of Utilities, Railroads, railways, and fire-control authorities during performance of the Work. The Contractor shall cooperate with and facilitate the relocation or repair of all Utilities and Utility services, as required under 00150.50, and of Railroad and fire-control property and railways.

The Contractor shall conduct no activities of any kind around fire hydrants until the local fire- control authority has approved provisions for continued service.

The Contractor shall immediately notify any Utility, Railroad, or fire-control authority whose facilities have been damaged.

If an Entity has a valid permit from the proper authority to construct, reconstruct, or repair Utility, Railroad, or fir e-control service in the Roadway, the Contractor shall allow the permit holder to perform the work.

condition at least equal to that which existed before the repair work addressed under this Subsection was performed, as directed by the Engineer , at no additional cost to the Agency .

00170.92Fencing, Protecting Stock, and Safeguarding Excavations - The Contractor shall be

responsible for loss, injury, or damage that results from its failure to restrain stock and persons.

confined using temporary fences or other adequate means. The Contractor shall provide adequate temporary fences or other protection around excavations to prevent animals and unauthorized persons from entering.

The Contractor shall repair, at Contractor's expense and to the Engineer's satisfaction, fences damaged by the Contractor's operations and the operations of the Contractor's agents, employees and Subcontractors.

fences, as shown on the Contract Documents or as directed by the Engineer. The Contractor shall tear down and remove fencing within the Right -of-Way when no longer needed, as part of the removal Work described in and paid for according to Section 00310.

00170.93Trespass - The Contractor shall be responsible for its own, its agents' and employees',

and its Subcontractors' trespass or encroachment upon, or damage to, property during performance of the Contract.

00170.94Use of Explosives - The Contractor shall comply with all Laws pertaining to the use of

explosives. The Contractor shall notify anyone having facilities near the Contractor's operations of the Contractor's intended use or storage of explosives. The Contractor shall be responsible for all 00170.94 96 damage resulting from its own, its agents' and employees', and its Subcontractors' use of explosives. (See 00330.41(e) and Section 00335 .)