Attachment 3 Sample Contract.pdf

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STATE OF OREGON

PARKS AND RECREATION DEPARTMENT

SERVICES CONTRACT #9354

FOREST MASTICATION AT BRIAN BOOTH STATE PARK

This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Oregon Parks and Recreation Department, (“OPRD”) and ________, a [_______] (“Contractor”) and is effective as of the Effective Date.

Contractor’s Contract Administrator for this Contract is:

Name Address

City, State, Zip Phone:

Fax:

Email:

OPRD’s Contract Administrator for this Contract is:

Nick Morris 725 Summer St. NE, Ste. C

Salem, OR, 97301 Phone: 503-580-9039

Fax: N/A Email: nick.e.morris@oprd.oregon.gov

Either party may change its Contract Administrator by providing the other notice in compliance with Section

17.6 of this Contract.

1. Contract Term.

The “Effective Date” of this Contract is the date this Contract has been fully executed by each party and approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, this Contract terminates on __________. The termination of this Contract will not extinguish or prejudice OPRD’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

2. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence:

2.1. this Contract less all exhibits;

2.2. Exhibit A (Statement of Work);

2.3. Exhibit B (Required Insurance) and

2.4. Exhibit C (Site Maps)

The foregoing documents and Exhibits are attached hereto and made a part of the Contract by this reference.

3. Services.

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3.1. Performance of Services. Contractor shall perform the services (the “Services”) and deliver to OPRD the Work (“Work”) set forth in Exhibit A, the Statement of Work (the “Statement of Work”). The Statement of Work includes the delivery schedule for the Work and Services. Contractor shall perform the Services in accordance with the terms and conditions of this Contract.

3.2. Submission and Acceptance of Work. When Contractor has completed all Work, Contractor shall notify OPRD. OPRD’s Contractor Administrator will determine whether the Work has the characteristics and otherwise meets the requirements set forth in the Statement of Work. If OPRD determines that the Work has the characteristics and meets requirements set forth in the Statement of Work in all material respects, OPRD will notify Contractor in writing of OPRD’s acceptance of the Work.

3.3. Rejection of Work; Corrections. If OPRD determines that Work does not meet the characteristics and requirements set forth in the Statement of Work in all material respects, OPRD will notify Contractor in writing of OPRD’s rejection of the Work, and describe in reasonable detail in such notice the OPRD’s basis for rejection of the Work. Upon receipt of notice of non-acceptance, Contractor shall, within the time period specified in OPRD’s notice, correct the Work at Contractor’s sole expense so that the Work meets the characteristics and requirements described in the Statement of Work.

4. Compensation.

4.1. Not to Exceed Compensation. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $***,***.**. OPRD will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract, and will not pay for Services performed before the Effective Date or after the expiration or termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Services subject to the amendment.

4.2. Payments. Payments, including interim payments to Contractor are subject to ORS 293.462, will be made only for completed and accepted Work and Services, and will be made in accordance with the payment schedule and requirements set forth in Exhibit A.

4.3. Invoices. Contractor shall submit invoices to OPRD as set forth in the Statement of Work or, if not set forth therein, to OPRD’s Contract Administrator.

4.4. RESERVED

4.5. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any Agency or department of the State of Oregon other than OPRD. OPRD believes it has sufficient funds currently available and authorized for expenditure to make payments under this Contract within OPRD’s biennial appropriation or limitation. Contractor understands and agrees that OPRD’s payments under this Contract are contingent on OPRD receiving appropriations, limitations, or other expenditure authority sufficient to allow OPRD, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

5. State Premises.

Contractor and Contractor staff shall comply with all policies, rules, procedures, and regulations established by OPRD and the State for access to and activities in and around premises controlled by OPRD or any other Agency of the State.

6. Independent Contractor; Responsibility for Taxes and Withholding

6.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. OPRD reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate

Contract #9354 Brian Booth Mastication Page 3 the quality of the Services; however, OPRD 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 Services.

6.2. No Conflicts. Contractor, by signature to this Contract, represents and warrants that Contractor’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal Agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Contract.

6.3. Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

6.4. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by applicable law, OPRD will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

7. Subcontracts, Successors, And Assignments

7.1. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without OPRD's prior written consent. In addition to any other provisions OPRD may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that OPRD will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor.

OPRD’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

7.2. Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the parties to this Contract, their respective successors, and permitted assigns, if any.

7.3. No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without OPRD’s prior written consent.

8. Representations and Warranties.

8.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to OPRD that:

8.1.1. Contractor has the power and authority to enter into and perform this Contract;

8.1.2. This Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

8.1.3. Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services;

8.1.4. Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

8.1.5. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

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

8.1.5.2. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

8.1.5.3. 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;

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

8.1.6. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or OPRD of the State.

8.2. Contractor’s Performance Warranties.

8.2.1. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession;

8.2.2. The Services and Work delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Contract;

8.2.3. Except as otherwise provided in this Contract (including Section 9), Contractor shall transfer all Work to OPRD free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind; and

8.2.4. Except as otherwise set forth in this Contract, any subcontractors performing work for Contractor under this Contract have assigned all of their rights in the Work to Contractor or OPRD and no third party has any right, title or interest in any Work supplied to OPRD under this Contract.

8.3. Warranties cumulative. The warranties set forth in Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Contract.

9. RESERVED

10. Indemnity by Contractor.

10.1. Claims. Contractor shall defend, save, hold harmless, and indemnify the State of Oregon and OPRD and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, costs (including attorneys’ fees) and expenses (collectively, "Claims") of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors, or agents under this Contract, including but not limited to, unauthorized disclosure of Confidential Information, professional malfeasance, infringement of intellectual property rights, intentional, willful, or wanton wrongful acts, and acts outside the scope of Services set forth in this Contract.

10.2. Legal Counsel. If Contractor is required to defend the State of Oregon or OPRD or their officers, employees or agents under Section 11.1, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State

Contract #9354 Brian Booth Mastication Page 5 of Oregon, OPRD or their officers, employees and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation.

Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State of Oregon's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor's obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees, and agents under (i) and (ii) above.

10.3. Damages to State Property and Employees. Contractor is liable for all Claims for personal injury, including death, damage to real property and damage to tangible and intangible personal property of the State of Oregon or any of its employees, subcontractors or agents resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract

10.4. CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED

IN THIS SECTION WITHOUT THE EXPRESS WRITTEN CONSENT OF OPRD.

11. Limitation of Liabilities.

11.1. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, CONTRACTOR’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED

TO ONE AND ONE HALF TIMES THE MAXIMUM-NOT-TO-EXCEED AMOUNT OF THIS CONTRACT.

11.2. EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO (i) SECTION 10, OR (ii) SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL

DAMAGES.

12. Insurance. Contractor shall maintain insurance as set forth in Exhibit B.

13. Default; Remedies; Termination.

13.1. Default by Contractor. Contractor will be in default under this Contract if:

13.1.1. 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

13.1.2. 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 14 calendar days after OPRD’s notice or such longer period as OPRD may specify in such notice; or

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

13.1.4. Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or Agency of the State.

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13.2. OPRD’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 14.1, OPRD 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:

13.2.1. Termination of this Contract under Section 14.6.2; or

13.2.2. Withholding all monies due for Services and Work that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively; or

13.2.3. Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief; or

13.2.4. Exercise of its right of setoff, and withholding of amounts otherwise due and owing to Contractor, without penalty; or

13.2.5. Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services and Work to recover liquidated and delinquent debt owed to the State of Oregon or any department or OPRD of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law.

13.3. Remedies Cumulative. The remedies set forth in Section 14.2 are cumulative to the extent the remedies are not inconsistent, and OPRD 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 14.1, then Contractor will be entitled to the same remedies as if this Contract was terminated pursuant to Section 14.6.1.

13.4. Default by OPRD. OPRD will be in default under this Contract if:

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

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

13.5. Contractor’s Remedies. In the event OPRD terminates this Contract under Section 14.6.1, or is in default under Section 14.4, and whether or not Contractor elects to exercise its right to terminate the Contract under Section 14.6.3, Contractor’s sole monetary remedy will be (i) with respect to Services compensable at a stated rate, a claim for unpaid invoices, time worked within any limits set forth in this Contract but not yet invoiced and authorized expenses incurred and interest, subject to ORS 293.462, and (ii) with respect to Work-based Services, a claim for the sum designated for completing the Work multiplied by the percentage of Services completed and accepted by OPRD, less previous amounts paid and any claim(s) that OPRD has against Contractor. In no event will OPRD 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 14.5, Contractor shall pay immediately any excess to OPRD upon written demand.

13.6. Termination.

13.6.1. OPRD’s Right to Terminate at its Discretion. OPRD may terminate this Contract:

13.6.1.1. Upon 30 calendar days’ prior written notice by OPRD to Contractor;

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13.6.1.2. Immediately upon written notice by OPRD to Contractor if OPRD fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Services or Work Products; or

13.6.1.3. Immediately upon written notice by OPRD to Contractor if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the OPRD’s purchase of the Services or Work Products under this Contract is prohibited or OPRD is prohibited from paying for such Services or Work Products from the planned funding source.

13.6.2. OPRD’s Right to Terminate for Cause. In addition to any other rights and remedies OPRD may have under this Contract, OPRD may terminate this Contract immediately upon written notice by OPRD to Contractor, or at such later date as OPRD may establish in such notice, if Contractor is in default under Section 14.1.

13.6.3. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract immediately upon written notice to OPRD, or at such later date as Contractor may establish in such notice, if OPRD is in default under Section 14.4.

13.7. Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to OPRD all of OPRD’s property (including without limitation any Services or Work Products for which OPRD 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 OPRD property is expressed or embodied at that time.

13.8. Effect of Termination. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract, unless OPRD expressly directs otherwise in such notice of termination. Upon OPRD's request, Contractor shall surrender to anyone OPRD designates, all documents, research or objects or other tangible things needed to complete the Services and the Work.

14. Compliance with Law.

14.1. Compliance with Law Generally. Contractor shall comply, and cause all subcontractors to comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Contract and the performance of the Services. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this Contract: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Title V and Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act portion of the American Recovery and Reinvestment Act of 2009 (ARRA), including the Privacy and Security Rules found at 45 CFR Parts 160 and 164, as the law and its implementing regulations may be updated from time to time; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) Section 188 of the Workforce Investment Act (WIA) of 1998, as amended; (ix) ORS Chapter 659, as amended; (x) all regulations and administrative rules established pursuant to the foregoing laws; and (xi) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to the Contract and required by law to be so incorporated. OPRD’s performance under the Contract is conditioned upon Contractor's compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein.

Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use

Contract #9354 Brian Booth Mastication Page 8 recycled paper (as defined in ORS 279A.010(1) (gg)), recycled PETE products (as defined in ORS 279A.010(1) (hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

14.2. Compliance with Oregon Tax Laws.

14.2.1. Contractor shall, throughout the duration of this Contract, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes the tax laws described in Section 8.1.5.1 through 8.1.5.4.

14.2.2. Any violation of Section 15.2.1 constitutes a material breach of this Contract. Further, any violation of Contractor’s warranty in Section 8.1.5 of this Contract that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state also constitutes a material breach of this Contract. Any violation entitles OPRD 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:

14.2.2.1. Termination of this Contract, in whole or in part;

14.2.2.2. Exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to Contractor without penalty; and

14.2.2.3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. OPRD is entitled to 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.

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

14.3. Compliance with Federal Law. Contractor shall comply with all applicable federal laws.

14.4. Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. Contractor’s compliance with this section constitutes a material element of this Contract and a failure to comply constitutes a breach that entitles OPRD to terminate this Contract for cause.

Contractor may not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Contractor may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

15. Governing Law; Venue and Jurisdiction.

15.1. Governing Law. This Contract is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

15.2. Venue and Jurisdiction. Any claim, action, suit or proceeding between OPRD (or any other Agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN

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PERSONAM JURISDICTION OF SAID COURTS. In no event may this section be construed as (i) 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, action, suit or proceeding, or (ii) consent by the State of Oregon to the jurisdiction of any court.

16. Miscellaneous Provisions.

16.1. 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, books, documents, papers, plans, records of shipments and payments and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract (“Records”) in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that OPRD and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives will have access to such financial records and other Records 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 and other Records for a minimum of 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.

16.2. 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 Services under this Contract in the State of Oregon prior to entering into this Contract.

16.3. Force Majeure. Neither OPRD nor Contractor may 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 OPRD 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.

16.4. Survival. All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 17.4, and provisions regarding Contract definitions, warranties and liabilities, independent Contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property and Work, confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, remedies, return of OPRD property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

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

16.6. Notice. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder must be given in writing by email, personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or OPRD at the email address, postal address or telephone number set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this Section 17.6. Any communication or notice so addressed and mailed is effective five business days after mailing. Any communication or notice delivered by facsimile is 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

Contract #9354 Brian Booth Mastication Page 10 normal business hours of the recipient. To be effective against OPRD, any notice transmitted by facsimile must be confirmed by telephone notice to OPRD’s Contract Administrator. Any communication or notice given by personal delivery is effective when actually delivered. Any notice given by email is effective when the sender receives confirmation of delivery, either by return email, or by demonstrating through other technological means that the email has been delivered to the intended email address.

16.7. No Third-Party Beneficiaries. OPRD and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or may 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.

16.8. 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 otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid.

16.9. 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 will bind the 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, will be effective only in the specific instance and for the specific purpose given. The failure of OPRD to enforce any provision of this Contract in one instance will not constitute a waiver by OPRD of its right to enforce that or any other provision.

16.10. Amendments. OPRD may amend this Contract to the extent permitted by applicable statutes and administrative rules. No amendment to this Contract is effective unless it is in writing signed by the parties, and has been approved as required by applicable law.

16.11. Counterparts. This Contract may be executed in several counterparts, all of which when taken together 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 constitutes an original.

16.12. Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this Contract, including the procurement process relating to this Contract, that constitutes a "claim" (as defined by ORS 180.750(1)). By its execution of this Contract, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Contract. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes 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. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to the State or OPRD under this Contract or any other provision of law.

16.13. Certifications. The individual signing on behalf of Contractor hereby:

16.13.1. Certifies and swears under penalty of perjury to the best of the individual’s knowledge that: (a) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (b) s/he is authorized to act on

Contract #9354 Brian Booth Mastication Page 11 behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, that Contractor is not in violation of any Oregon tax laws and that for a period of no fewer than six (6) calendar years preceding the Effective Date of this Contract, Contractor faithfully has complied with: (i) all tax laws of this state, including but not limited to ORS

305.620 and ORS chapters 316, 317, and 318; (ii) any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

(iii) 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 (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; (c) Contractor is an independent contractor as defined in ORS 670.600; and (d) the supplied Contractor tax identification numbers are true and accurate;

16.13.2. Certifies that, to the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against any disadvantaged business enterprise, minority-owned business, woman-owned business, business that service-disabled veteran owns or emerging small business certified under ORS 200.055 in obtaining any required subcontracts;

16.13.3. Certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112, of preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of the Contract, to maintain the policy and practice in force during the entire Contract term.

16.13.4. Certifies that the information provided on the attached Exhibit E, Independent Contractor Certification, is true and correct as of the Effective Date; and

16.13.5. Certifies that Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at https://www.treasury.gov/ofac/downloads/sdnlist.pdf

In witness whereof, the Parties hereto have made, executed and delivered the Contract as of the last date a signatory below has signed the Contract.

By: _________________________________________________________________________

Name/Title Date

State of Oregon acting by and through its Oregon Parks and Recreation Department (OPRD)

By: _________________________________________________________________________

Name/Title Date https://www.treasury.gov/ofac/downloads/sdnlist.pdf

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EXHIBIT A

STATEMENT OF WORK

1. PURPOSE; SCOPE OF WORK

Contractor will conduct precommercial thinning operations by way of mastication within the Areas of

Operations, as shown on Exhibit “C” Map. The purpose of this Project is to:

a. Improve overall forest health;

b. Improve individual tree health and vigor;

c. Open the forest canopy to promote the growth of secondary tree species and understory vegetation, and;

d. Concentrate on removal of less desirable tree species such as the shore pine and Douglas-fir

1.1 Areas of Operations. The Areas of Operations consists of one unit totaling 30 acres. The stand consists of a 15 to 20-year-old mixed conifer plantation, planted with a spacing of approximately 10x10 feet. Overall, the unit averages 600 TPA with tree heights ranging from 15’ to 45’ tall and diameters averaging 6” DBH, but may be as much as 12” DBH.

The boundary of this Project is by description only, therefore Contractor shall be required to utilize a

GPS device to navigate the perimeter of the Operation Area. OPRD will supply Contractor with digital files of the boundary for navigation purposes. Contractor must supply their own GPS device. Prior to commencement of operations, Contractor and OPRD representatives shall review the area/boundary locations for the Pre-Operations Meeting.

1.2 Additional Project Information.

Project Manager: Nick Morris

Acres: 30

Time Frame: Operations to occur April – June 2023.

Location & Legal: Located in the southern half of Section 19, Township 12 South, Range 11 West, W.M. Lincoln County, Oregon.

Access: Access is via Highway 101, just south of MP 149 and through the maintenance yard at Brian

Booth State Park.

Operation Type: Young stand thinning by way of mastication.

Forest Type: Young Plantation Mixed Conifer

2. CONTRACTOR OBLIGATION IN RESPECT TO TREE SPECIFICATIONS

Contractor shall comply with the following specifications in its performance of the Work described above:

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2.1 Thinning Requirements. Contractor shall select “Leave Trees” to reduce stand density, improve stand composition and condition as prescribed for each plantation. Contractor shall leave the healthiest and most vigorous trees using variable spacing while reducing the overall tree density. Contractor shall select Leave Trees from dominant and co-dominant trees that have little to no major defect, are of good form and vigor, and within the allowable stocking of:

• 194 TPA or 15’x15’ spacing for western hemlock trees;

• 134 – 90 TPA or 18’x18’ to 22’x22’ for all other leave tree species;

• 18’ – 22’ when spacing off western hemlock clumps.

2.1.1 Leave Tree Characteristics. Contractor shall select Leave Trees that must have the most desirable characteristics, and the least undesirable characteristics, including

• Straight stem

• Small breach diameter

• Good coloration

• Well-formed crown

• Branches horizontal or slightly angled to the bole

• Free or limited presence of insect or disease damage

• Vigorous annual terminal growth (especially from last 1-3 years)

• Crown class of dominant or co-dominant

• Crown ratio is >30%

• Greater than 6 inches DBH

2.1.2 Cut Tree characteristics include:

• Multiple tops

• Poor crown form

• Crook or sweep in bole

• Dead or broken tops

• Poor coloration

• Large branch diameter

• Presence of insects or disease

• Branches more than 45 degrees from horizontal

• Physical or mechanical damage

• Suppressed

• Poor annual growth

• Sucker limbs

• Crown class of intermediate or overtopped

These indicators shall determine the trees to be cut, but minor defects will be acceptable for a particular

Leave Tree if it is the best selection in the competitive area. Trees should be relatively free of insect and disease, animal damage, except for minor problems that will not affect long-term growth. Trees displaying these symptoms may be left as Leave Trees if they are the best available within the competitive area.

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2.2 Reserved Trees includes all trees within the Areas of Operations that meet the desirable Leave Tree characteristics and are within the desired residual stocking density as described in Exhibit A, Section

2.1.

2.2.1 Reserved Trees – Down Material. Existing down trees and logs shall not be treated unless OPRD determines it to be a safety hazard. Furthermore, existing down trees/logs shall not be removed from the Areas of Operation.

2.2.2 Reserved Trees – Damages. Contractor shall be exclusively responsible for any damage to Reserved

Trees. If damage to Reserved Trees occur and is determined by OPRD as unavoidable damage, then no charges will be made.

If Contractor’s activities result in damage to Reserved Trees that is determined by OPRD as avoidable damage, then Contractor shall pay OPRD for damage at the following rates:

a. $50.00/tree will be paid when “Minor Damage” to Reserved Trees is caused by Contractor.

Minor damage is defined as removal of bark down to the cambium layer of a tree, such removal affecting at least 24 square inches, but less than damage defined as “Major Damage”.

b. $100/tree will be paid when “Major Damage” to Reserved Trees is caused by Contractor. Major damage is defined as:

i. Removal of bark down to the cambium layer over an area of the bole, which has one dimension greater than the diameter of the tree, or any visible bark removal on the tree roots;

ii. More than 50% of live crown is removed.

iii. Tree is knocked down, or leaning more than 10 degrees from vertical.

Payment for damage to Reserved Trees shall not release Contractor from liability for other damage to the property of OPRD. If any Reserved Trees suffer “Major Damage” as defined above, OPRD reserves the right to suspend operations until corrective measures have been agreed upon by OPRD and

Contractor.

3.0 ADDITIONAL CONTRACTOR OBLIGATIONS

3.1 General Requirements. Contractor shall:

a. Provide all labor, equipment, supervision, transportation, operating supplies and incidentals to perform all work necessary on the areas specified herein.

b. Perform all aspects of the work in an organized and systematic manager throughout the Areas of Operations.

c. Perform work only during the hours of operation: Monday – Thursday, 8:00 am – 6:00 pm and

Friday 8:00 am to 2:00 pm. Contractor shall not operate on weekends or state observed holidays.

d. Clear from Park roads and trails by 2:00 pm each Friday of any debris that would impede travel

Contract #9354 Brian Booth Mastication Page 15 by foot, bicycle, horse or All-Terrain Vehicle.

3.2 Quality Control. Contractor shall provide quality control for all services under this Contract. Contractor is expected to conduct their own inspections to ensure that all thinning requirements are being met.

OPRD inspections are for payment determination only, and are not intended to be used as quality control by Contractor. Any delay in OPRD inspections will not cause OPRD to be responsible for

Contractor’s quality of work.

3.3 OPRD Inspections. Contractor shall notify OPRD when an Area is complete and ready for inspection.

Inspections will consist of visual observations and sample plots to determine compliance with the specifications. If the visual inspection reveals the probability of missed objectives, Contractor shall review the Area with OPRD to determine if there is agreement.

3.4 Missed Performance Objectives. If OPRD and Contractor do not agree with the results of OPRD inspection or, in the case of sample plots, systematic procedures will be used for inspection. If the results indicate the need or rework, unsatisfactory portions of the Area will be reworked at Contractor’s expense. Inspections necessitated by the rework shall be paid for by Contractor based upon actual costs to OPRD.

3.4.1 Inspection. OPRD’s quality assurance inspections will determine compliance with specifications and provide the basis for computing the rate of payment. Inspections will consist of visual observations and/or sample plots to determine compliance with the specifications. The sample plots will be located throughout the thinned areas to obtain a representative sample of work. Size of the plots will be 1/20 acre (26.33’). Plot centers will be marked and numbered. Contractor may observe inspections.

a. Plot Procedures. Each plot will be examined and findings will be recorded as follows:

i. Category “A” (Uncorrectable Deficiency) – Number of cut/damaged Leave Trees

ii. Category “B” (Correctable Deficiency) – Number of excess trees

iii. Category “C” (Correctable Deficiency) – Number of small trees missed

b. Upon Inspection of all plots for each Areas, the number of Leave Trees per acre and the quality of thinning will be calculated as follows:

i. Number of Leave Trees per acre:

Number of trees left X 50 = Leave trees per acre

Number of plots taken

ii. Thinning Quality:

Category “A” trees X 100 = Quality %

# of trees left – Category “B”

iii. Fuel Size and Depth

# of acceptable measurements X 100 = Quality %

Total # of measurements

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3.4.2 Acceptance. Failure of Contractor to provide fuels thinning quality resulting in OPRD inspection results of 90% or better at the completion of an Area, will deem Contractor’s quality as unacceptable and will result in payment for that Area based on the quality percentage of the inspection. If OPRD’s results are objectionable to Contractor, a re-examination may be requested in writing. In this case, OPRD will again sample a minimum of 1% of the Area. Payment will be based on the results of this re-inspection.

If the re-inspection results are less than a 5% quality difference from the initial inspection, Contractor will be charged for the actual cost of the re-inspection.

3.4.3 Rework and Re-inspection after Rework. Category “B” – When total number of Leave Trees exceed the maximum allowance or when Category “C”, total number of small trees missed exceed 50 trees per acre, payment will not be made until the deficiency is corrected, unless OPRD Representative determines excess tree deficiency to be minor and will not result in any material differences in total number of trees to be left. Inspections after rework will be made in the same manner as the initial inspection but on different plot lines. Contractor shall pay for inspections necessitated by rework.

3.4.4 Inspection of Slash Treatment. Acceptance will be determined by inspection of Areas of treatment and will be based on adherence to the specifications. Noncompliance with any of the specifications will classify the treatment as unsatisfactory and rework will be required to bring the treatment up to specification standards.

Treatment of Slash. Trees shall be cut to the following specifications:

a. Residual logs shall be 12 to 15 feet in length;

b. No greater than 3” on the small end and 10” on the large end;

c. Branches shall be treated as close to the ground as is practicable or no greater than 12” high and;

d. Stumps shall be no greater than 6” in height.

3.5 Access and Road Maintenance

3.5.1 Access. Contractor shall use the roads shown on Exhibit C or access to the Areas of Operations. A gate key is required to access the Areas of Operations and may be obtained from OPRD Authorized

Representative. If gate key(s) are not returned by the completion of the operations under this Contract, Contractor shall be subject to a fee of $100 per unreturned key(s).