Attachment 3 - Timber Sale Contract.pdf

Timber Sale Contract No. 9609 Page 1 of 34

STATE OF OREGON

OREGON PARKS AND RECREATION DEPARTMENT

TIMBER SALE CONTRACT

PROJECT NAME: Silver Stem: Forest Improvement at Silver Falls State Park

AGENCY CONTRACT NO.: 9609

LOCATION: Silver Falls State Park – Northgate East

This Contract (Contract) is by and between the State of Oregon, acting by and through its Oregon Parks and Recreation Department (“Agency” or “OPRD”) and ________, an Oregon Corporation, (“Contractor”) (together, Parties) and is effective as of the Effective Date.

This Contract includes Exhibit A (Area Map), Exhibit B (Operations Plan), Exhibit C (Scaling Instructions), Exhibit D State

Parties agree as follows:

1. CERTIFICATIONS

The individual signing on behalf of Contractor hereby agrees, 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) Contractor has complied with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of this state, and that Contractor has no undisclosed liquidated and delinquent debt owed to this state or any political subdivision. Contractor shall, for the duration of this Contract and any extensions, 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: (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 apply 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 apply 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;

d) The supplied Contractor tax identification numbers are true and accurate;

e) 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; and

f) It is a material term of this Contract that Contractor certifies by entering into this Contract that Contractor has a written policy and practice for preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class and that Contractor shall maintain the policy and practice in force during the entire term of this Contract.

Timber Sale Contract No. 9609 Page 2 of 34

SIGNATURE PAGE

IN WITNESS WHEREOF, the State of Oregon hereby awards the Contract to the above Contractor for the item(s) and/or service(s) contained in the Contract, including all terms, conditions, and specifications. The parties have affixed their signatures as of the latest date indicated below.

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

Name, Title Date

XXXXXX (Contractor)

Name, Title Date

PART I: SALE OF TIMBER

1. DEFINTION OF TERMS

Areas of Operations means the locations where Contractor performs the Operations described in the Contract. Each Area of Operations has specific operating requirements, includes the Timber Sale Boundary and designated numbered points, as shown on Exhibit A (Area Map), and located on the ground by reference to points, stations, natural land features, Improvements, or area boundary signs.

Contract means the entire written agreement between the Parties, including but not limited to the Notice of Operations, Invitation to Bid, Attachments to the Invitation to Bid, Contract, Contract specifications, terms, and conditions, Exhibits, and the accepted Bid.

Cultural Resource means any archaeological or historical sites, buildings, structures, and artifacts, which possess material evidence of human life and culture of prehistoric and historic past.

DBH (Diameter at Breast Height) means the diameter of a standing tree inclusive of the bark measured four and one-half feet (4½ ft.) above the ground on the uphill side of the tree.

Down Timber means the timber that is down as of the date of this Contract, as determined by Agency.

Down Wood means the trees and logs on the ground.

Fire Season means that period of time when the Oregon Department of Forestry’s (ODF) State Forester has declared conditions of fire hazard exist in a forest protection district or any part thereof. The ODF State Forester designates for each district or any part thereof the date of the beginning of a Fire Season for that year. Fire Season continues for each district or part thereof until ended by order of the State Forester when conditions of fire hazard no longer exist in that district or part thereof.

Hazardous Substances means any substance or material that is hazardous or toxic to health or otherwise regulated or controlled under any applicable federal, state or local statute, regulation, ordinance or law.

Improvements mean any built structure existing within the Area of Operations.

Landing means collecting point for logs; the place to which logs are yarded for loading and transportation from the woods.

Log Load Receipt Book means the book issued by Agency used for log load accountability. In each book there are sequentially numbered multi-part pages (tickets). Each page is a four-part form. Each of the four parts, on each page, has the same identifying number. The four parts of the Log Load Receipt Book are:

Woods Receipt: Turned-in to Agency’s Authorized Representative.

Trucker Receipt: Retained by Contractor’s log truck driver.

Load Receipt: Stapled to the log load on the truck before the truck leaves the Area of Operations Landing; stays with the log load until the load is dispersed and processed at the mill.

Scaler Receipt: Stapled to the log load on the truck before the truck leaves the Area of Operations Landing. When the load is scaled (measured) the Scaler Receipt is transferred to the Scaling Bureau's printout of the log breakdown of the load. This log breakdown (which shows number of logs, species of logs, grades of logs, and board foot volume), along with the Scaler Receipt is sent to Agency’s headquarters in Salem.

MBF means thousand board feet.

Operations or Work means all activities or work conducted by Contractor under this Contract, including Project Work, or the furnishing of all materials, equipment, labor, and incidentals necessary to successfully complete any individual item or the entire Contract. Operations will include, but are not limited to, felling, bucking, Yarding, loading, and hauling.

Operations Plan means the document by which Contractor notifies Agency of the plans and schedule for completing Operations described in the Contract. The Operations Plan also contains names of subcontractors, Contractor's Authorized Representatives, and Agency's Authorized Representatives. The form of Operations Plan is attached as Exhibit B.

Permit means any Permit required by a federal, state, or local government agency before Operations under this Contract may lawfully begin or continue. Permit includes the “Notification of Operations” to be obtained by Contractor from the Oregon Department Forestry.

Pond Values means the price a milling facility will pay for logs delivered to the milling location.

Pre-Operations Meeting means the initial meeting between Authorized Representatives of Contractor and Agency to discuss operational issues and Contract requirements, and to identify elements to be addressed in Exhibit B.

Project Location means the points or areas designated as such, on Exhibit A (Area Map), collectively the Area of Operations, and located on the ground by reference to points, stations, natural land features, Improvements, or area boundary signs; location(s) where project activities will occur.

Project Work means the work required of Contractor in addition to normal log removal and hauling activities. Project Work can include, but is not limited to, road building, road improvement, rock quarry development, stream enhancement, site preparation, soil stabilization, and water runoff control measures.

Contractor’s Authorized Representatives means the representatives authorized by Contractor to receive any notice or instructions from Agency on behalf of Contractor and to take any action required in regard to performance of Contractor under the Contract. Contractor's Authorized Representatives are identified in the Operations Plan.

Residual Tree means any green tree left standing on an Area of Operations.

Slash means all woody debris resulting from Operations or other Improvements.

Right-of-Way Timber means trees harvested from a strip of land to enable a road and Landing construction.

Slash means all woody debris resulting from logging Operations, construction of Roads, or other Improvements.

Snag means the standing dead tree or portion of tree, from which most of the foliage and limbs have fallen.

Timber Sale Boundary Area means the designated area in which silvicultural prescriptive harvest operations will occur.

TPSO (Third-Party Scaling Organization) means a scaling organization not affiliated with Contractor or Agency.

Road means the unsurfaced roads in which the running surface consists of the same materials as the surrounding native soils. Unsurfaced Roads may also include those Roads that have had some minimal surfacing added but are inadequate for use during wet weather, as determined by Agency.

Utilization Scale means the scaling of logs to account for merchantable material that has been lost due to logs not removed from the Area of Operations, or from improper logging practices that resulted in breakage or wastage to otherwise merchantable logs.

Yarding means the process of conveying logs from the cutting area to the Landing.

2. GENERAL

2.1 Independent Contractor; Responsibility for Taxes and Withholding; Other Required Conditions.

2.1.1 Independent Contractor. Contractor shall perform all Work as an independent contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Work and (ii) to evaluate the quality of the Work;

however, 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.

2.1.2 No Conflicts. Contractor, by signature to this Contract, represents and warrants that Contractor’s performance of the Work 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 Work under this Contract.

2.1.3 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.

2.1.4 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, Agency 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.

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

Contractor shall:

a) Make payment promptly, as due, to all persons supplying to the contractor labor or material for the performance of the work provided for in the contract;

b) Pay all contributions or amounts due the Industrial Accident Fund from the contractor or subcontractor incurred in the performance of the contract;

c) Not permit any lien or claim to be filed or prosecuted against the state or a county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or material furnished;

and

d) Pay to the Department of Revenue all sums withheld from employees under ORS 316.167.

Contractor agrees it is an employer that will comply with ORS 656.017 or that it is exempt under ORS 656.126.

2.2 Sale of Timber. Under the terms and conditions of this Contract, Agency sells to Contractor, and Contractor buys from Agency, that timber designated and described in Part II Section 3.2, "Designated Timber," which for all purposes of this Contract is hereinafter referred to as "timber" or” designated timber”. The location of designated timber is shown on Exhibit A (Area Map).

This is a sale of Agency timber, which means any timber harvested or sold under this Contract must not be exported from the United States. Contractor must comply with the provisions of the Forest Resources Conservation and Shortage Relief Amendments Act of 1993, which authorizes Oregon and other western states to prohibit the export of unprocessed timber from public lands, and with ORS 526.801 through 526.831 and OAR 736-018-0080 through 736-018-0080, in disposing of timber from this timber sale.

2.3 Title to Timber. During the period of this Contract, and any extension, Contractor shall have the right to cut and remove the timber. Such right shall be conditioned upon Contractor complying with the provisions of this Contract.

The ownership of and title to the Designated Timber will pass to Contractor as the timber is removed from the Area of Operations. Any right of Contractor to cut and remove the timber shall expire and end at the time this Contract, or any extension, terminates. All rights and interests of Contractor in and to timber and logs remaining on the Area of Operations shall, at that time, automatically revert to and re-vest in Agency, without compensation to Contractor.

2.4 Quality and Quantity of Timber. Agency makes no guarantee or warranty to Contractor as to the quality or quantity of the Designated Timber.

Further, Agency makes no representation, warranty, or guarantee of the accuracy of any information either provided by Agency or made available by Agency under the Public Records Law with respect to this Contract. Contractor agrees to bear exclusive responsibility for, and to accept all risks associated with, the actual conditions on the Areas of Operations and Contractor's computation of its bid for this Contract.

2.5 Examination of Plans, Exhibits, and Areas of Operations. Contractor acknowledges and agrees that, before submitting a bid, Contractor: (i) has made a careful examination of the terms and conditions of the Contract; (ii) has become fully informed as to the quality and quantity of materials and the character of the Operations required; and (iii) has made a careful examination of the Areas of Operations and the location and conditions of the Operations, including the sources of supply for materials. Agency will in no case be responsible for any loss or for any unanticipated costs that may be suffered by Contractor as a result of Contractor's failure to acquire full information in advance in regard to all conditions pertaining to the Operations.

3. COMMENCEMENT AND COMPLETION OF CONTRACT

3.1 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 XX/XX/XXXX. The termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

3.2 Commencement of Work. Time is of the essence in this Contract. Operations under this Contract will begin on the Effective Date, provided that Contractor shall not commence Work under the Contract until Contractor has attended the Pre-Operations Meeting and Agency has approved the Operations Plan as specified below in Section 3.4, “Operations Plan.”

3.3 Pre-Operations Meeting. Contractor shall meet with Agency prior to Agency’s approval of the Operations Plan, and prior to commencement of operations, to discuss Contract matters, including Threatened and Endangered Species protection efforts, protection of Area of Operations resources, and to identify key issues to be addressed in the Operations Plan.

3.4 Operations Plan. Contractor shall prepare an Operations Plan for all Operations to be conducted under this Contract and shall submit the Plan to Agency in accordance with the “Notice of Intent to Award” issued to Contractor by Agency, and in any case prior to the commencement of any Work. The Plan must be prepared on the form provided by Agency, and must be used for all types of Operations.

Upon approval by Agency, Operations Plan(s) will automatically be incorporated into, and made part of, the Contract as Exhibit B. Each Operations Plan must be signed and dated by Contractor and Agency.

Contractor shall:

a) Notify Agency prior to any period of inactivity of Operations for more than three (3) calendar days, and again prior to resumption of Operations;

b) Perform all Operations in accordance with the Completion Dates set forth in the Operations Plan. Failure to begin work on the Start Dates and finish the work by the Completion Dates stated in the Operations Plan will be a material breach of the Contract;

c) Submit any requested changes to the Operations Plan in writing to Agency for review and approval, PRIOR to implementing the change. Changes to the Operations Plan must be completed by amendment in accordance with Section 5.2, Amendments.

4. BONDING AND INSURANCE

4 .1 Indemnity by Contractor; Limitation of Liability

4.1.1 Claims. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE STATE OF OREGON AND AGENCY 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.

4.1.2 Legal Counsel. If Contractor is required to defend the State of Oregon or Agency or their officers, employees or agents under Section 4.1, 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 of Oregon, Agency 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.

4.1.3 Damages to State Property and Employees. Contractor is liable for all Claims for personal injury, including but not limited to 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.

4.1.4 CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM REFERENCED IN THIS SECTION

WITHOUT THE EXPRESS WRITTEN CONSENT OF AGENCY.

4.2 Limitation of Liabilities.

EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO SECTION 4.1, 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.

EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO SECTION 4.1, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL, OR

INCIDENTAL DAMAGES.

4.3 Insurance Requirements. Contractor shall obtain at Contractor’s expense the insurance specified in this section prior to performing under the Contract and shall maintain it in full force and at its own expense throughout the duration of the Contract, as required by any extended reporting period or tail coverage requirements, and all warranty periods that apply.

Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in Oregon and that are acceptable to Agency. Coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

a) Commercial General Liability Insurance. Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage satisfactory to Agency. This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under the Contract, and have no limitation of coverage to designated premises, project or operation.

Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence. Annual aggregate limit shall not be less than $2,000,000.

b) Automobile Liability Insurance. Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

c) Loggers Broad Form Coverage. Coverage in an amount not less than $2,000,000 for costs of fire control, losses or damage from fire, and other causes arising or resulting from activities of Contractor and its employees, contractors, subcontractors, and others working or acting for Contractor.

d) Worker's Compensation; Employers’ Liability. All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident. If Contractor is an employer subject to any other state’s workers’ compensation law, Contactor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements

e) Excess or Umbrella Insurance. A combination of primary and excess/umbrella insurance may be used to meet the required insurance requirements.

f) Additional Insured. All liability insurance, except for Workers’ Compensation, Professional Liability, and Network Security and Privacy Liability (if applicable), required under the Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance. The Additional Insured endorsement with respect to liability arising out of Contractor’s ongoing operations must be on ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on ISO form CG 20 37 04 13 or equivalent.

g) Waiver of Subrogation. Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against Agency or State of Oregon by virtue of the payment of any loss. Contractor will obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not Agency has received a waiver of subrogation endorsement from the Contractor or the Contractor’s insurer(s).

h) Tail Coverage. If any of the required insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, Contractor shall maintain either tail coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of the Contract, for a minimum of 24 months following the later of (i) Contractor’s completion and Agency’s acceptance of all Services and/or Goods required under the Contract, or, (ii) Agency or Contractor termination of Contract, or, iii) The expiration of all warranty periods provided under the Contract.

i) Certificate(s) and Proof of Insurance. Contractor shall provide to the Agency individual/address below, or as otherwise directed by Agency, Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under the Contract. The Certificate(s) shall list the State of Oregon, its officers, employees and agents as a Certificate holder and as an endorsed Additional Insured. The Certificate(s) shall also include all required endorsements or copies of the applicable policy language effecting coverage required by the Contract. If excess/umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the excess/umbrella insurance. As proof of insurance Agency has the right to request copies of insurance policies and endorsements relating to the insurance requirements in the Contract.

Certificates Holder:

State of Oregon Oregon Parks and Recreation Department 725 Summer Street NE Suite C Salem, OR 97301

4.3.1 Notice of Change or Cancellation. Contractor or its insurer must provide at least 30 days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

4.3.2 Agency Acceptance. All insurance providers are subject to Agency acceptance. If requested by Agency, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to Agency’s representatives responsible for verification of the insurance coverages required under this Section 4.3.

5. GENERAL TERMS AND CONDITIONS

5.1 Notice. Except as otherwise expressly provided in this Contract, any communications between 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 below, or to such other addresses or numbers as either party may indicate pursuant to this Section.

Agency’s Authorized Representative: Nick Morris, OPRD Forester Oregon Parks and Recreation Dept.

725 Summer St. NE, Ste. C Salem, OR 97301 Phone: 503-580-9039 Email: nick.morris@oprd.oregon.gov

Contractor’s Authorized Representative: Name, Title Company Name Address City, State, Zip Phone:

Email:

5.2 Inspection and Acceptance. Agency and its authorized and designated representative will at all times be allowed access to all parts of the Operations and Areas of Operations of Contractor, as Agency may determine to be necessary or desirable to make a complete and detailed inspection of the Operations and Contractor’s compliance with all terms and conditions of this Contract. Agency will be furnished operation progress status or other information and assistance by Contractor, or the Authorized Representative(s), as Agency may determine necessary to permit Agency to verify Contractor's compliance with all terms and conditions of this Contract.

Contractor shall notify Agency in writing upon final completion of Operations. Agency will inspect the Operations completed by Contractor within ten (10) business days after receipt of written notification that all Operations are complete. Following inspection, Agency will notify Contractor in writing of Agency’s acceptance of Contractor's performance of the Contract or, if Contractor’s Operations are not acceptable to Agency, will advise Contractor in writing of the particular defects to be remedied before final acceptance by Agency can be granted.

5.3 Subcontract, Successors and Assignments.

5.3.1 Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without Agency's prior written consent.

Before Agency, in the exercise of its sole discretion, approves or denies Contractor’s future requests to subcontract, Contractor shall first submit a written request to Agency that identifies the proposed subcontractor, and Contractor shall submit all information that Agency requests concerning the proposed subcontractor and subcontracted Good, Services or both.

5.3.2 In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. Agency’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

5.3.3 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.

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

5.4 Conditions of Areas of Operations. Contractor shall follow Agency's Authorized Representative's instructions, if any, regarding use of the Areas of Operations. Agency reserves the right to issue written authorization to others to use the Areas of Operations when, in the determination of Agency, such use will not materially interfere with the Operations of Contractor. During the term of this Contract, Agency reserves the right to sell any products or materials from the Areas of Operations, provided that the removal will not materially interfere with the Operations of Contractor. Contractor shall not interfere with the use of Roads by other authorized users. Contractor shall not be held liable for any acts, omissions, or neglect of authorized simultaneous users.

In an emergency affecting the safety of life or of the Operations or of adjoining property, Contractor, without special instruction or authorization from Agency's Authorized Representative, shall act reasonably to prevent threatened loss or injury, and shall so act, without appeal, if instructed by Agency's Authorized Representative. Any compensation claimed by Contractor on account of emergency work shall be equitably determined by Agency.

5.5 Hazardous Substances Discovered by Contractor. Unless disposition of Hazardous Substances is specifically made a part of Contractor’s Operations under this Contract, Contractor shall immediately notify Agency of any Hazardous Substances which Contractor discovers or encounters during performance of Operations. Contractor shall immediately cease operating in any part of the Area of Operations where Hazardous Substances have been discovered or encountered, if continued Operations in such area would present a bona fide risk or danger to the environment or to the health or well-being of Contractor's or any subcontractor's work force.

Unless disposition of Hazardous Substances is specifically made a part of Contractor’s Operations under this Contract, upon being notified by Contractor of the presence of Hazardous Substances in the Area of Operations, Agency will arrange for the proper disposition of such Hazardous Substances.

5.6 Hazardous Substances Generated/Aggravated by Contractor. Contractor shall be held responsible for any and all releases of Hazardous Substances during performance of the Contract which occur as a result of, or are aggravated by, actions of its agents, personnel, or subcontractors. Contractor shall immediately notify Agency of any release of Hazardous Substances and, as directed by Agency, shall promptly dispose of or otherwise remediate such spills or leaks to the satisfaction of Agency and proper regulatory agencies in a manner that complies with applicable federal, state, and local laws and regulations. Remediation will be at no cost to Agency.

Contractor shall at all times:

a) Properly handle, use, and dispose of all Hazardous Substances brought onto the Areas of Operations, in accordance with all applicable federal, state, or local statutes, rules, or ordinances;

b) Be responsible for any spills, releases, discharges, or leaks of (or from) Hazardous Substances which Contractor has brought onto the Areas of Operations; and

c) Promptly remediate, without cost to Agency, such spills, releases, discharges, or leaks to Agency's satisfaction and in compliance with all applicable federal, state, or local statutes, rules or ordinances.

Contractor shall report all reportable quantity releases of Hazardous Substances and petroleum products to applicable federal, state, and local regulatory and emergency response agencies. Reportable quantities are found in 40 CFR, Part 302, Table 302.4 for Hazardous Substances and in OAR 340-142 for petroleum products.

5.7 Environmental Indemnification. WITHOUT LIMITING IN ANY WAY, THE INDEMNIFICATION PROVISIONS OF SECTION 4.1, CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS AGENCY FROM ANY CLAIMS RESULTING FROM THE USE, RELEASE OR DISPOSAL OF HAZARDOUS SUBSTANCES DURING THE PERFORMANCE OF THIS CONTRACT, INCLUDING THEIR REMOVAL, ENCAPSULATION, TRANSPORTATION, HANDLING, AND OTHER DISPOSAL, WHETHER OR NOT SUCH USE, RELEASE OR DISPOSAL OCCURS WITHIN OR OUTSIDE THE AREA OF OPERATIONS.

5.8 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 or expiration of this Contract, including without limitation this Section 5.8, and provisions regarding Contract definitions, warranties and liabilities, independent contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, indemnification, remedies, return of Agency property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

5.9 Waiver. Failure of Agency to enforce any provision of this Contract will not constitute a waiver or relinquishment by Agency of the right to such performance in the future, nor of the right to enforce any other provision of this Contract.

5.10 Governing Law; Venue and Jurisdiction.

5.10.1 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.

5.10.2 Venue and Jurisdiction. Any claim, action, suit or proceeding between Agency (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 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.

5.11 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 of Oregon 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 Agency to enforce any provision of this Contract in one instance will not constitute a waiver by Agency of its right to enforce that or any other provision.

5.12 Amendments. Agency may amend this Contract to the extent permitted by applicable statutes and administrative rules. To be effective, an amendment to this Contract must be in writing signed by the Parties and contain all approvals required by applicable law.

6. OWNERSHIP OF MATERIALS AND IMPROVEMENTS

6.1 Materials from Area of Operations. Contractor shall not take, sell, use, remove, or otherwise dispose of any sand, gravel, rock, earth, or other material obtained or produced from within the limits of rights-of-way, gravel pits, rock quarries, or other property owned by or held by any agency of the State of Oregon, including ODOT or Agency, or the USFS, unless authorized by this Contract or separate written consent of Agency.

6.2 Materials and Improvements. Title to materials, Improvements, and other property the Contract requires Contractor to provide shall vest in and become the property of Agency at the time such are furnished by Contractor and accepted by Agency. All materials, Improvements, and property furnished by Contractor shall be free and clear of liens, claims, and encumbrances.

Contractor shall keep in good repair all Improvements located on State of Oregon or USFS land and existing on the Effective Date of the Contract. Any Improvements placed on State of Oregon-owned or –managed land or USFS-owned land by Contractor will become the property of Agency or USFS, depending on management or ownership on the Effective Date of this Contract. Contractor shall promptly repair or replace, without cost to Agency, any Improvement injured, damaged, or removed from the Areas of Operations by Contractor or by contractors of Contractor.

6.3 Removal of Equipment and Materials. Within ten (10) days after completion, and as a condition of final acceptance of Contractor’s Operations, Contractor shall remove from the Areas of Operations and other property owned or controlled by State of Oregon or USFS, all equipment, materials, and other property Contractor has placed or caused to be placed thereon that is not to become the property of Agency. Contractor acknowledges and agrees that any such equipment, materials, and other property that is not removed within ten (10) days shall become the property of Agency and may be used or otherwise disposed of by Agency without notice or obligation to Contractor or to any party to whom Contractor may transfer title.

Nothing in this section shall be construed as relieving Contractor from an obligation to clean up and to burn, remove, or dispose of debris, waste materials, and such, in accordance with the provisions of this Contract and applicable law.

Contractor shall indemnify Agency for any cost or expense incurred by Agency as a result of Contractor’s failure to satisfy this obligation.

7. CHANGES

7.1 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.

In the event a cause or causes beyond the control of Contractor impact Contractor’s ability to continue to perform under this Contract, Agency may grant a reasonable extension of time but will not additionally compensate Contractor.

7.2 Notice of Timber Sale; Endangered Species Act Compliance Statement. As part of the survey program, Agency surveys its lands on a continuing basis for land management, species protection, research, and other reasons. During the Contract term, threatened and endangered (T&E) survey work or the discovery of a threatened or endangered species within or in the vicinity of operations, or both, may affect operations or the area(s) of operations contemplated under the contract.

In the event a T&E species is found within or in the vicinity of the operations or area(s) of operations, or Agency deems it necessary or expedient to take measures that modify operations under the Contract to prevent disturbance to T&E species or to take action in response to any pending or threatened legal action, Contractor agrees that Agency may take steps to protect the interests of Agency, including imposing restrictions on operations, contract modification, suspension, or termination.

7.3 Breach; Default; Remedies. Any failure by Contractor to comply with the terms and conditions of this Contract is a breach. If Contractor is in breach, Agency may, after giving written notice, suspend any further Operations of Contractor under this Contract, except those Operations necessary to remedy any breach.

If Contractor fails to remedy a breach within the time allowed by Agency, or if Contractor fails to complete work as required under any interim Contract completion date or the Contract expiration date, or if Contractor injures or severs any timber other than Designated Timber, Agency may declare Contractor to be in default by providing notice of the default. If the default is due to failure of Contractor to correct a breach as previously instructed, Agency may terminate the Contract as of the date specified in the earlier instruction. If the default is due to failure by Contractor to complete work prior to the expiration date or any interim completion date required under the Contract, or if Contractor injures or severs timber that is not Designated Timber, Agency may terminate the Contract without providing Contractor an opportunity to cure the default.

THE PROVISIONS OF THIS SECTION 7.3 ARE IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER REMEDIES AGENCY MAY HAVE FOR CONTRACTOR'S BREACH OF CONTRACT. In the event of a default Agency may pursue any and all remedies available to Agency. Such remedies include, but are not limited to: (1) making a claim on each bond provided by Contractor; (2) suing Contractor for all damages Agency incurs as a result of Contractor's breach; (3) suing Contractor for specific performance of the Contract; or (4) terminating the Contract and reselling the timber.

7.4 Termination. Unless terminated earlier according to this Section 7.4 or extended according to Section 7.7 below, this

Contract automatically terminates on the date set forth in Section 3.1. Any termination shall be without prejudice to any obligations or liabilities of either Party already accrued prior to such termination.

a) Termination by Mutual Consent. This Contract may be terminated by written mutual consent of the Parties at any time.

b) Termination by Agency. Agency may, in its sole discretion, terminate this Contract immediately upon written Notice, or at a later date as Agency may establish in the Notice, upon the occurrence of any of the following events:

(1) Agency fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract;

(2) Federal or state laws, regulations or guidelines are modified or interpreted in a way that the purchase of services by Agency under this Contract is prohibited; or

(3) Contractor is in default under Section 7.3.

c) Cessation of Rights and Activities. Upon Contract expiration or notice of termination, Contractor shall immediately cease all Operations under the Contract.

7.5 Major Catastrophe. Notwithstanding any other provisions of this Contract, Agency may, pursuant to Oregon law, amend the Contract when Major Catastrophes or significant changes in Agency or federal law after the date of this Contract materially affect the volume and value of timber, or Project Work to be done, as specified in the Contract. Major Catastrophes are defined as windstorms, floods, fire, landslides, or other acts of God, which are beyond the control of Contractor and in no way connected with negligent acts or omissions of Contractor, its officers, employees, agents, or subcontractors. Market conditions will not be considered a reason for Contract adjustments. Adjustments made under this Section, if any, will be for the sole purpose of placing the parties in their original status under the Contract insofar as possible; provided, however, that no adjustment will be made in response to any loss or cost to Contractor that is recoverable from third parties by Contractor. Contractor shall make written application to Agency within 30 days after discovery of the damage done by the Major Catastrophe.

If, prior to completion of the Contract, a Major Catastrophe (as defined above) caused by a single event or significant changes in Agency or federal law results in additional Project Work for Contractor involving an additional estimated cost of more than: (1) $500 for sales less than one-half million board feet; (2) $1,000 for sales of one-half million to three million board feet; or (3) $3,000 for sales over three million board feet, Agency may adjust the Contract Project Work Credits by the amount listed, in which event Agency will assume responsibility for any additional cost to complete the Project Work which exceeds the above amount. Adjustments by Agency will be based on advertised volumes and may be accomplished by adjusting stumpage values or payment of such additional costs to Contractor or by Agency assuming responsibility for performing that portion of the Project Work in excess of the amount listed above. The estimated cost of additional work will be calculated by Agency.

If, prior to completion of the Contract, a change in Agency or federal law, or a Major Catastrophe (as defined above), materially affects the volume and value of timber, Agency may adjust the volume and value accordingly. Agency will determine the adjustment volume by either an individual tree sample cruise, or a point sample cruise to a five percent (5%) sampling error of the volume. For purposes of this Contract, "materially affect" will mean more than 5,000.

Value adjustment will be calculated by multiplying the volume adjustment times the appraised value for each species.

7.6 Agency's Right to Suspend Operations. Agency or Agency's Authorized Representative may suspend portions or all of the Operations due to causes including, but not limited to:

a) Failure of Contractor to correct unsafe conditions;

b) Failure of Contractor to carry out any provision of the Contract;

c) Failure of Contractor to carry out written…