ATT - A Sample PS Contract -Final~1.pdf

RFP # 62900-2403 – Northern Goshawk Surveys Contract #___________________

ATTACHMENT A

Sample Price Agreement

STATE OF OREGON PERSONAL/PROFESSIONAL SERVICES CONTRACT

CONTRACTOR: DEPARTMENT OF FORESTRY

Administrator: Administrator:

Title: Title:

Address: Address:

Phone: Phone:

Fax: Fax:

Email: Email:

Federal ID #:

This Price Agreement is between the State of Oregon, acting by and through its Department of Forestry (“Agency”), and Name of Company (“Contractor”) (hereinafter referred to as the “Price Agreement” or “Contract”). Agency and Contractor shall collectively be referred to as the “Parties”.

1. Contract.

a. Term. This Price Agreement shall become effective on the date this Price Agreement has been fully executed by every party and, when required, approved by the Department of Administrative Services and the Department of Justice. Unless extended or terminated earlier in accordance with its terms, this shall terminate when Agency accepts Contractor's completed performance or on December 12, 2023, whichever date occurs last. Price Agreement termination shall not extinguish or prejudice Agency’s right to enforce this Price Agreement with respect to any default by Contractor that has not been cured. The initial term of this Price Agreement is two (2) years.

Agency and Contractor may renew this Price Agreement annually up to five (5) years. The maximum Term of the Price Agreement shall not exceed seven (7)3years.

b. Authority. Agency is authorized to enter into this type of Price Agreement under the authority granted in ORS 530.050.

2. Statement of Work; Key Persons.

a. Contractor shall perform the work (the “Work”) as set forth in the Statement of Work, which includes the delivery schedule for such Work, and that is attached hereto as Exhibit A. Contractor shall perform the Work in accordance with the terms and conditions of this Contract.

Contractor and Agency agree that each individual specified below is an individual whose special qualifications and involvement in Contractor’s performance of Services form part of the basis of agreement between the Parties for this Price Agreement and is an individual through whom Contractor shall provide to Agency the expertise, experience, judgment, and personal attention required to perform Services (“Key Person”). Each of the following is a Key Person under this Price Agreement (indicate name and role or title):

Neither Contractor nor any Key Person of Contractor shall delegate performance of Services any Key Person is required to perform under this Price Agreement to others without first obtaining Agency’s written consent. Further, Contractor shall not, without first obtaining Agency's prior written consent, re-assign or transfer any Key Person to other duties or positions so that the Key Person is no longer available to provide Agency with that Key Person’s expertise, experience, judgment, and personal attention. If Contractor requests Agency to approve a re-assignment or transfer of a Key Person, Agency shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Person. Any individual Agency approves as a replacement for a Key Person is deemed a Key Person under this Contract.

3. Consideration

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $ . Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Price Agreement for completing the Work and will not pay for Work performed before the date this Price Agreement becomes effective or after the termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Work subject to the amendment.

b. Interim payments to Contractor shall be subject to ORS 293.462, and shall be made in accordance with the payment schedule and requirements in Exhibit A.

c. Agency will pay only for completed Work that is accepted by Agency.

d. Price Adjustments. All Price Agreement prices are firm for the term of the Contract. Changes in

Bid prices or discounts can be considered, by the Agency, only at the time of renewal (if any).

Agency may use the Consumer Price Index, West Region (CPI) for the previous year preceding the renewal date, as a basis for accepting or rejecting price increases. Contractor shall submit all information regarding proposed price changes to the Agency, in writing, prior to then-applicable Price Agreement termination date. Proposed price changes must be accompanied by documentation supporting such increases (cost increases, market increases, or other supporting factors). The Agency reserves the right to accept or reject any proposed price changes, in the best interest of the State. If the proposed price or discount changes are accepted, they shall become effective on the first day of the Price Agreement renewal period.

4. Price Agreement Documents. This Price Agreement consists of the following documents, which are listed in descending order of precedence: this Price Agreement less all exhibits, attached Exhibit A (the Statement of Work), Exhibit B (Required Insurance), and Exhibit C (Independent Contractor Certification Statement), Exhibit D (Project Price Form) These exhibits A-D are attached hereto and incorporated herein by this reference.

5. Independent Contractor; Responsibility

a. Contractor shall perform all Work as an independent contractor. The Agency reserves the right (i) to determine and modify the delivery schedule for the Work and (ii) to evaluate the quality of the Work Product, however, the Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

b. If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract, represents and warrants that: Contractor’s Work to be performed under this Price Agreement creates no potential or actual conflict of interest as defined by ORS 244 and no statutes, rules or regulations of the state or federal agency for which Contractor currently performs work would prohibit Contractor’s Work under this Contract.

c. Contractor understands and agrees that it is not an "officer", "employee", or "agent" of the Agency, as those terms are used in ORS 30.265.

6. Subcontracts, Successors, and Assignments

a. Contractor shall not enter into any subcontracts for any of the Work required by this Price

Agreement without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Price Agreement provisions to ensure that Agency will receive the benefit of subcontractor performance as if the subcontractor were the Contractor with respect to Sections 5, 6, 7, 9, 10, 11, 14, 15, 16, 18, and

23. Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

b. The provisions of this Price Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns, if any.

c. Contractor shall not assign, delegate or transfer any of its rights or obligations under this Price Agreement without Agency’s prior written consent.

7. No Third-Party Beneficiaries. Agency and Contractor are the only parties to this Price Agreement and are the only parties entitled to enforce the terms of this Contract. Nothing in this Price Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

8. Funds Available and Authorized; Payments. Contractor shall not be compensated for Work performed under this Price Agreement by any other agency or department of the State of Oregon.

Contractor understands and agrees that Agency's payment of amounts under this Price Agreement is contingent on Agency receiving appropriations, limitations, allotments, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract. Nothing in this Agreement is to be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

9. Representations and Warranties.

a. Contractor’s Representations and Warranties. Contractor represents and warrants to

Agency that (1) Contractor has the power and authority to enter into and perform this Contract,

(2) this Contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms, (3) Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence to perform the Work in a professional manner and in accordance with standards prevalent in Contractor’s industry, trade or profession, (4) Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work, (5) all computer hardware and software delivered under this Price Agreement will, individually and in combination, correctly process, sequence, and calculate all date and date-related data for all dates prior to, through and after January 1, 2000, (6) any software products delivered under this Price Agreement that process date or date-related data shall recognize, store and transmit date data in a format which explicitly and unambiguously specifies the correct century, and (7) Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty.

b. Warranties cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

10. Ownership of Work Product.

a. Definitions. As used in this Section 10, and elsewhere in this Contract, the following terms have the meanings set forth below:

(i) b. “Contractor Intellectual Property” means any intellectual property owned by

Contractor and developed independently from the Work.

(ii) “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein that Contractor is required to deliver to Agency pursuant to the Work.

. b. Original Works. All Work Product created by Contractor pursuant to the Work, including derivative works and compilations, and whether or not such Work Product is considered a work made for hire or an employment to invent, shall be the exclusive property of Agency. Agency and Contractor agree that such original works of authorship are “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to the Work is not “work made for hire,” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all original Work Product created pursuant to the Work, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to original Work Product created pursuant to the Work, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

In the event that Work Product created by Contractor under this Price Agreement is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on Agency’s behalf.

c. Contractor Intellectual Property. In the event that Work Product is Contractor Intellectual Property Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on Agency’s behalf.

d. Third Party Works. In the event that Work Product is Third Party Intellectual Property, Contractor shall secure on the Agency’s behalf and in the name of the Agency, an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third-Party Intellectual Property, and to authorize others to do the same on Agency’s behalf.

11. Indemnity.

a. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND

INDEMNIFY THE STATE OF OREGON AND AGENCY AND THEIR OFFICERS, EMPLOYEES

AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES,

LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER, INCLUDING

ATTORNEYS’ FEES, RESULTING FROM, ARISING OUT OF, OR RELATING TO THE

ACTIVITIES OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR

AGENTS UNDER THIS CONTRACT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 11.a, CONTRACTOR EXPRESSLY AGREES TO DEFEND, INDEMNIFY, AND HOLD

AGENCY, THE STATE OF OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS,

DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS,

SUITS, ACTIONS, LOSSES, LIABILITIES, COSTS, EXPENSES, INCLUDING ATTORNEYS

FEES, AND DAMAGES ARISING OUT OF OR RELATED TO ANY CLAIMS THAT THE WORK,

THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS DELIVERED

TO AGENCY BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER

ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR THE

AGENCY’S USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET,

TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY

RIGHT OF ANY THIRD PARTY; PROVIDED, THAT STATE SHALL PROVIDE CONTRACTOR

WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

c. CONTROL OF DEFENSE AND SETTLEMENT. CONTRACTOR SHALL HAVE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY CLAIM THAT IS SUBJECT TO SECTIONS 11.a OR 11.b; HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY ENGAGED BY

CONTRACTOR SHALL DEFEND THE CLAIM IN THE NAME OF THE STATE OF OREGON

OR ANY AGENCY OF THE STATE OF OREGON, NOR PURPORT TO ACT AS LEGAL

REPRESENTATIVE OF THE STATE OF OREGON OR ANY OF ITS AGENCIES, WITHOUT

FIRST RECEIVING FROM THE OREGON ATTORNEY GENERAL, IN A FORM AND MANNER

DETERMINED APPROPRIATE BY THE ATTORNEY GENERAL, AUTHORITY TO ACT AS

LEGAL COUNSEL FOR THE STATE OF OREGON, NOR SHALL CONTRACTOR SETTLE

ANY CLAIM ON BEHALF OF THE STATE OF OREGON WITHOUT THE APPROVAL OF THE

ATTORNEY GENERAL. THE STATE OF OREGON MAY, AT ITS ELECTION AND EXPENSE,

ASSUME ITS OWN DEFENSE AND SETTLEMENT IN THE EVENT THAT THE STATE OF

OREGON DETERMINES THAT CONTRACTOR IS PROHIBITED FROM DEFENDING THE

STATE OF OREGON, OR IS NOT ADEQUATELY DEFENDING THE STATE OF OREGON’S

INTERESTS, OR THAT AN IMPORTANT GOVERNMENTAL PRINCIPLE IS AT ISSUE AND

THE STATE OF OREGON DESIRES TO ASSUME ITS OWN DEFENSE.

12. Insurance. Contractor shall maintain insurance as set forth in Exhibit B, which is attached hereto.

13. Default; Remedies; Termination.

a. Default by Contractor. Contractor shall be in default under this Price Agreement if:

(i) Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

(ii) Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Contract and Contractor has not obtained such license or certificate within fourteen (14) calendar days after Agency’s notice or such longer period as Agency may specify in such notice; or

(iii) Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Work under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Work as to endanger Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within fourteen (14) calendar days after Agency's notice, or such longer period as Agency may specify in such notice.

b. Agency’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 13.a, Agency may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

(i) Termination of this Contract under Section 13.e (ii);

(ii) Withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively;

(iii) Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief;

(iv) Exercise of its right of setoff. These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Sections 13.a, then Contractor shall be entitled to the same remedies as if this Contract was terminated pursuant to Section 13.e (i).

c. Default by Agency. Agency shall be in default under this Contract if:

(i) Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

(ii) Agency commits any material breach or default of any covenant, warranty, or obligation under this Contract, and such breach or default is not cured within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

d. Contractor’s Remedies for Agency’s Default. In the event Agency terminates the Contract under Section 13.e(i), or in the event Agency is in default under Section 13.c and whether or not Contractor elects to exercise its right to terminate the Contract under Section 13.e(iii), Contractor’s sole monetary remedy shall be (a) with respect to services compensable on an hourly basis, a claim for unpaid invoices, hours worked within any limits set forth in this Contract but not yet billed, authorized expenses incurred and interest within the limits permitted under ORS 293.462, and (b) with respect to deliverable-based Work, a claim for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by Agency, less previous amounts paid and any claim(s) that Agency has against Contractor. In no event shall Agency be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 13.d, Contractor shall pay immediately any excess to Agency upon written demand provided in accordance with Section 20.

e. Termination.

(i) Agency’s Right to Terminate at its Discretion. At its sole discretion, Agency may terminate this Contract:

(A) For its convenience upon thirty (30) days’ prior written notice by Agency to Contractor;

(B) Immediately upon written notice if Agency fails to receive funding, appropriations, limitations, allotments or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under the Contract;

or

(C) Immediately upon written notice if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the Agency’s purchase of the Work or Work Products under this Contract is prohibited or Agency is prohibited from paying for such Work or Work Products from the planned funding source.

(ii) Agency’s Right to Terminate for Cause. In addition to any other rights and remedies Agency may have under this Contract, Agency may terminate this Contract immediately upon written notice by Agency to Contractor, or at such later date as Agency may establish in such notice, or upon expiration of the time period and with such notice as provided in Section 13.e (ii) (B) and 13.e (ii) (C) below, upon the occurrence of any of the following events:

(A) Contractor is in default under Section 13.a (i) because Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

(B) Contractor is in default under Section 13.a(ii) because Contractor no longer holds a license or certificate that is required for it to perform services under the Contract and Contractor has not obtained such license or certificate within fourteen (14) calendar days after Agency’s notice or such longer period as Agency may specify in such notice; or

(C) Contractor is in default under Section 13.a(iii) because Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Work under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Work as to endanger Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within fourteen (14) calendar days after Agency's notice, or such longer period as Agency may specify in such notice.

(iii) Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract with such written notice to Agency as provided in Sections 13.e (iii) (A) and 13.e (iii) (B) below, or at such later date as Contractor may establish in such notice, upon the occurrence of the following events:

(A) Agency is in default under Section 13.c(i) because Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure such failure within thirty

(30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

(B) Agency is in default under Section 13.c (ii) because Agency commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and Agency fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

(iv) Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to Agency all of Agency’s property (including without limitation any Work or Work Products for which Agency has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such Agency property is expressed or embodied at that time. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract, unless Agency expressly directs otherwise in such notice of termination. Upon Agency's request, Contractor shall surrender to anyone Agency designates, all documents, research or objects or other tangible things needed to complete the Work and the Work Products.

14. Records Maintenance; Access. Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records pertinent to this Contract in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that Agency and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to such financial records and other books, documents, papers, plans, records of shipments and payments and writings of Contractor that are pertinent to this Contract, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records, books, documents, papers, plans, records of shipments and payments and writings for a minimum of six (6) years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

15. Compliance with Applicable Law. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to Contractor and the Contract. Agency’s performance under the Contract is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235 which are incorporated by reference herein.

16. Tax Compliance. Contractor certifies that it has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state. Contractor shall throughout the duration of this Contract and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivisions of this state. For the purpose of this Section, “tax laws” includes:

a. All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317 and 318;

b. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to

Contractor’s property, operations, receipt, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

c. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

d. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provision of this Section 16 constitutes a material breach of this Contract.

Any failure to comply shall entitle Agency to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law or in equity, including but not limited to:

(i) Termination of this Contract, in whole or in part;

(ii) Exercise of the right of setoff, and withholdings of amounts otherwise due and owing to

Contractor, in an amount equal to State’s setoff right, without penalty and

(iii) Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency may recover any and all damages suffered as the result of Contractor’s breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services and applications.

In addition, this Contact will be reported to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including:

(iv) Garnishing the Contractor’s compensation under this Contract or

(v) Exercising a right of setoff against Contractor’s compensation under this Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

17. Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of

Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Contract.

Contractor shall demonstrate its legal capacity to perform the Work under this Contract in the State of Oregon prior to entering into this Contract.

18. Force Majeure. Neither Agency nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, terrorist acts, or other acts of political sabotage, or war where such cause was beyond the reasonable control of Agency or Contractor, respectively. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

19. Survival. All rights and obligations shall cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 1, 7, 8, 9, 10, 11, 12, 13, 14, 18, 23, and 24.

20. Time is of the Essence. Contractor agrees that time is of the essence under this Contract.

21. Notice. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing by email, personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or Agency at the address, number or email address set forth in this Contract (above), or to such other addresses or numbers as either party may indicate pursuant to this Section 20. Any communication or notice so addressed and mailed shall be effective five (5) days after mailing. Any communication or notice delivered by facsimile shall be effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours, or on the next business day, if transmission was outside normal business hours of the recipient. To be effective against Agency, any notice transmitted by facsimile must be confirmed by telephone notice to Agency’s Contract Administrator. Any communication or notice given by personal delivery shall be effective when actually delivered. Any communication or notice given by email shall be effective upon the sender’s receipt of confirmation generated by the recipient’s email system that the notice has been received by the recipient’s email system.

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

23. Counterparts. This Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of the Contract so executed shall constitute an original.

24. Governing Law; Venue; Consent to Jurisdiction. This Contract shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between Agency (and/or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim 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 section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether it is 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 THIS CONTRACT, HEREBY CONSENTS TO

THE IN PERSONAM JURISDICTION OF SAID COURTS.

25. Merger Clause; Waiver. This Contract and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract. No waiver, consent, modification or change of terms of this Contract shall bind all parties unless in writing and signed by both parties and all necessary State approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given.

The failure of Agency to enforce any provision of this Contract shall not constitute a waiver by Agency of that or any other provision.

26. Amendments. Agency may amend this Contract to the extent permitted by applicable statutes and administrative rules in accordance with OAR 125-247-0805. Amendments may include, but are not limited to the following: (a) Amendments to the Statement of Work of the Contract to add or subtract services to/from the Statement of Work; (b) Amendments to extend the term of the Contract; and (c) Amendments to payment provisions associated with Amendments (a) or (b) above. No amendment to this Contract shall be effective unless it is in writing signed by the parties, and all approvals required by applicable law have been obtained.

27. Contractor Data and Certification.

a. Contractor Information. Contractor shall provide Contractor’s Social Security number or Contractor’s federal tax ID number and the additional information set forth below. This information is requested pursuant to ORS 305.385 and OAR 125-246-0330(3). Social Security Numbers provided pursuant to this Section will be used for the administration of state, federal and local tax laws.

b. Name (tax filing):

Address:

Business Designation (check one):

[ ] Professional Corporation [ ] Partnership [ ] Limited Partnership [ ] Limited Liability Company [ ] Limited Liability Partnership [ ] Sole Proprietorship

Other:

c. Contractor Certification. By execution of the Contract, Contractor certifies that it has a written policy and practice that meets the requirements described in HB 3060 (2017) Oregon Laws, chapter 212, for preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class and that the Contractor shall maintain the policy and practice in force during the entire term of this Contract.

28. Oregon False Claims Act.

a. The Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action or conduct by the Contractor pertaining to this Contract that constitutes a “claim” (as defined by the Oregon False Claims Act, ORS 180750 (1)). By its execution of this Contract, the Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to this Contract or the project for which the Contract work is being performed. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or cause to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor.

Nothing in this Section or this Contract may be construed as limiting or derogating from any authority granted the Oregon Attorney General under 180.750 to 180.785.

b. The Contractor shall immediately report in writing, to the Agency, any credible evidence that a principal, employee, agent, or subcontractor of the Contractor, or any sub-grantee or other person, has made a false claim or committed a prohibited act under the Oregon False Claims Act, or has committed as criminal or civil violation of laws pertaining to fraud, bribery, gratuity, conflict of interest, or similar misconduct in connection with this Contract or moneys paid by the Agency under this contract.

c. The Contractor must include subsections (a) through (b) of this section in each subcontract or sub grant the Contractor may award in connection with the performance of this Contract. In doing so, the Contractor may not modify the terms of those subsections, except to identify the subcontractors or sub grantee that will be subject to those provisions.

29. Debarment.

Contractor certifies that their company, and it’s principles have not been debarred, suspended, proposed for debarment, declared ineligible, are not in the process of being debarred, or are voluntarily excluded from conducting business with a federal department or agency of the federal government. Information on debarment is available at the following websites:

www.sam.gov/portal/SAM

30. Confidentiality.

a. Requirements. Subject to Section 29.c below, Contractor shall make reasonable efforts to maintain the confidentiality of any Confidential Information received from the Agency and shall not use such Confidential Information except in performing its obligations pursuant to this Agreement.

For purposes of this Section 29, "Confidential Information" means all records, data, maps, draft and final reports, and other information produced by Contractor in carrying out the services under the Contract, as well as any information marked or designated in writing by either party as “confidential” prior to initial disclosure.

b. Exceptions. The confidentiality obligations imposed by this Section 29 do not apply to: (a) http://www.sam.gov/portal/SAM information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by the recipient; (b) information subsequently and rightfully received from third parties who have the necessary rights to transfer said information without any obligation of confidentiality; (c) information that was known to the recipient prior to the Effective Date without obligation of confidentiality; (d) information that is independently developed by recipient and documented in writing without use of, or reference to, any Confidential Information of the other party; and (e) information required to be disclosed by compulsory judicial or administrative process or by law or regulation; provided that if Contractor is required to disclose Confidential Information under clause (e), Contractor shall first give the Agency notice and shall provide such information as may reasonably be necessary to enable Agency to take such action to protect its interests, if any;

provided further that Agency is not required to assist Contractor in opposing disclosure of Confidential Information.

c. Public Records Law. Agency may disclose Confidential Information to the extent Agency deems disclosure is required by Oregon Public Records Laws, (ORS 192.410-192.505).

CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT

CONTRACTOR HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE

BOUND BY ITS TERMS AND CONDITIONS.

CONTRACTOR OREGON DEPARTMENT OF ORESTRY

Signature Date Signature Date

Print Name and Title Print Name and Title

DEPARTMENT OF JUSTICE DEPARTMENT OF ADMINISTRATIVE SERVICES

Approved for Legal Sufficiency (Required for Contracts in excess of

$1,000,000 (Required for Contracts in excess of $150,000) as per DAS Delegation #740-13)

Assistant Attorney General Date Date

EXHIBIT A

STATEMENT OF WORK

Part I. General Information.

The Contractor shall survey for the northern goshawk on specified stations on Sun Pass State Forest in 2022 and 2023 and on specified stations in the GNA area on the Fremont Winema National Forest in 2022 as specifically provided herein. In addition, ODF may require surveys or follow-up surveys on other State Forest managed lands across the Oregon Coast and Cascade Ranges between the Astoria and the Southwest districts (Northwest and Southwest Oregon Operating Area) and the Klamath Lake District and Gilchrist State Forest (Eastern Operating Area), Federal lands adjacent to the districts, and other State lands, as well as some adjacent private lands. Final workloads will be delivered to the contractor on May 9th or the next business day if May 9th falls on a weekend of each year during the term of the Price Agreement.

Part II. Work; Acceptance Criteria; Deliverables and Delivery Schedule.

2.1 GEOGRAPIC EXTENT AND TIMING

Contractor must survey Sun Pass State Forest for Northern Goshawks during the 2022 and 2023 breeding seasons along a pre-determined grid system (Attachment A – Exhibit 2A). This grid system will consist of no more than 1600 stations and no more than 100 transects (oriented north to south). ODF may reduce the number of stations by as much as 25% in either year due to logging operations or the discovery of active goshawk nests, or both. The discovery of an active nest during these surveys will result in an elimination of all or most stations within a 1.5 km radius. The objective of these surveys is to locate all Northern Goshawks that use Sun Pass State Forest as part of their territory. Contractor must locate and document all nest sites. Each round of surveys must begin in the Special Emphasis Area as shown on Attachment A - Exhibit 2A.

Contractor must perform follow-up surveys on other ODF districts as shown in Attachment A – Exhibit 1A as requested or inventory other ODF State Forests managed lands from 2022-2028 as requested, or both.

Contractor must survey the GNA Area for Northern Goshawks during the 2022 breeding season along a pre-determined grid system (Attachment A – Exhibit 2B). This grid system will consist of no more than 1600 stations and no more than 100 transects (oriented north to south). ODF may reduce the number of stations by as much as 25% in either year due to logging operations and/or the discovery of active goshawk nests. The discovery of an active nest during these surveys will result in an elimination of all or most stations within a 1.5 km radius. The objective of these surveys is to locate all Northern Goshawks that use the GNA area as part of their territory. Contractor must locate and document all nest sites.

For large scale surveys including the Sun Pass State Forest and GNA area, Contractor shall conduct the first round of surveys in early June of each year and conduct the second round of surveys in early July of each year during the term of the Price Agreement. Some shift in the acceptable survey window may be allowed due to environmental conditions (e.g., snowpack) as approved by ODF. Contractor shall follow-up on incidental observations on other ODF districts as needed. Contractor shall conduct other small-scale projects according to ODF needs and timing specifications.

2.2 PROTOCOL

Contractor must conduct surveys following the Broadcast Acoustical Survey section (pages 3-13 to 3-17) in the Northern Goshawk Inventory and Monitoring Guide hereafter “Protocol” (https://www.fs.fed.us/rm/pubs_series/wo/wo_gtr071.pdf).

2.3 STAFFING AND WORKLOAD

To conduct these surveys, the Contractor must provide: a field coordinator, field surveyors, all surveyor training, project management, quality control, and logistical support. Field surveyors must have the basic forest skills and equipment necessary to navigate forest roads and terrain. This includes appropriate vehicles, field clothing, and personal protective equipment (hard hats, safety glasses, etc.). Any personnel changes of the project manager or field coordinator, once the Price Agreement has been signed, will be done only with the agreement of ODF. Surveyors with previous goshawk survey experience are preferred.

The Contractor’s field coordinator must work with the appointed ODF Biologist and district staff in the execution of this project. The field coordinator will be responsible for scheduling surveys, follow up surveys and nest searches, and for ensuring that the surveyors' data sheets and maps are correct.

The Contractor must schedule all surveys to ensure that they are conducted during the most appropriate time for locating nesting goshawks as indicted in the survey protocol or as directed by ODF. For Sun Pass and the GNA area and other large scale survey efforts (large scale defined as a survey project with greater than 150 stations), the Contractor must provide the appointed Biologist and District Operations Coordinator with schedules of surveys three (3) weeks prior to implementation of surveys and will notify ODF of any revisions of the schedules within two (2) working days of making the revisions. For smaller scale survey efforts, the Contractor must provide the appointed Biologist and District Operations Coordinator with schedules of surveys at least three (3) business days prior to conducting surveys.

The Contractor must record survey data on data sheets that have been approved by ODF before beginning of the required surveys. The Contractor must ensure data forms and associated maps are clearly and completely prepared for each survey, even those canceled due to weather or other factors.

Contractor’s surveyors must record all raptors and woodpecker species they can positively identify that are observed during surveys as well as record any species listed on the Oregon Department of Fish and Wildlife Sensitive Species List, they can positively identify. For other raptor and Sensitive Species, surveyors must make an attempt to photograph these species with a camera or cell phone camera and record calls of these species using a cell phone or other digital recording device.

(http://www.dfw.state.or.us/wildlife/diversity/species/sensitive_species.asp).

The Contractor must provide the following information to ODF:

Survey transect/calling station data forms, which shall contain, at a minimum:

• Observer name

• Date

• Weather information

• Transect/calling station number

• Start and stop times of survey at each station

• Species, if any, detected at each station (as described in Part 2.3(2) above).

http://www.dfw.state.or.us/wildlife/diversity/species/sensitive_species.asp

• Comments relevant to any detections (such as compass bearing and approximate distance to detected species) or survey conditions

• A key to any abbreviations or codes used on the form

Contractor must also provide the following information on Northern Goshawk detection data forms, which shall contain, at a minimum:

• Observer Name

• Date

• Time

• Transect/calling station number (or survey location, if detection was not obtained from a calling station)

• Weather information

• Survey Stage (first or second round of surveys, or follow-up survey)

• Survey Method (transect, modified transect or non-transect calling station)

• Detection Type (none, vocal, fly-by, silent approach, sign)

• Life Stage of responding goshawk (adult or juvenile)

• Nest Tree found (yes or no)

• OLM and NAD 83 UTM coordinates of response obtained using a GPS receiver to a precision of

+/- 10 meters.

In the event that a Northern Goshawk nest is located, Contractor must capture the coordinates of the nest tree using a GPS receiver to a precision of +/- 10 meters. In addition, the Contractor must provide:

• Comments relevant to the response, including bird behavior, habitat, and type of sign or juveniles found.

• A key to any abbreviations or codes used on the form.

• Map utilizing layer files provided by ODF in ArcPro 2.5 compliant (or newer); or of the area searched, if it is a “no response” follow-up to an earlier detection).

Contractor understands and agrees that in the event that a Northern Goshawks nest is located, stations will no longer be surveyed with 1.5 km of the nest.

During the survey season, the Contractor must notify the ODF Contract Administrator of all goshawk responses and nests within 48hrs of the observation.

Contractor must notify the appointed ODF Biologist and district of any Northern Goshawks observations within one (1) working day of the observation. Contractor must make data sheets, maps, and surveyor available to ODF for the evaluation of the detections.

2.4 PERMITS; LICENSES; SAFETY

Contractor shall procure all Permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the surveys, and shall maintain and keep such Permits and licenses current throughout the term of the Price Agreement. Contractor shall notify Agency immediately if such Permits or licenses are revoked or suspended by the relevant government agency.

Agency may at any time require Contractor to satisfy Agency that Operations under this Price Agreement comply with state, federal, and local laws, codes, regulations, and ordinances.