Final Sample Contract.docx

RFP-62900-00004954 - 2023 Aerial Herbicide Prep and Release - Tillamook, Forest Grove, & Astoria Districts

Attachment A – SAMPLE CONTRACT

STATE OF OREGON

CONTRACT FOR THE

PURCHASE OF SERVICES

(“Contract”)

This Contract is between the State of Oregon (“State”) acting by and through the Department of Forestry ("Agency"), and ___________________ ("Contractor") (each a “Party” and together, the “Parties”). This Contract is effective on the date it has been signed by all Parties and all required State of Oregon approvals have been obtained.

Under this Contract, Agency agrees to pay for, and Contractor agrees to provide all labor and equipment, with the exception of actual herbicides, to perform aerial herbicide application services for Agency in Tillamook, Forest Grove, and Astoria, Oregon to ensure the successful reforestation of these areas to meet the requirements of the Forest Practices Act and the State Forest Management Plan in accordance with all terms and conditions contained in this Contract.

The initial term of the Contract shall be for one (1) year. Upon written agreement by the Parties, the Contract may be extended for additional one (1) year terms. The total term of the Contract, including extensions, may not exceed seven (7) years. The Parties may renegotiate the price upon extension of the Contract.

Agency is authorized to enter into this Contract under ORS 530.050.

1. GENERAL TERMS

A. AGENCY AUTHORIZED REPRESENTATIVES. Agency employees will be designated as Agency representatives to provide directions for Services, periodically inspect for conformance with specifications, certify Service accomplishment, and act as field representative for Agency. Contract administrators will be those listed below, or another Agency Representative designated in writing by Agency:

B. CONTRACTOR AUTHORIZED REPRESENTATIVE. Contractor shall designate in writing a representative who is authorized to represent and act on behalf of Contractor in all matters pertaining to the Contract. This representative shall be present at all times when Services are being performed

2. STATEMENT OF SERVICES

Contractor shall perform, and provide all labor, supervision, equipment and materials—with the exception of actual herbicides—necessary for, aerial applications of herbicide for three different herbicide application projects: spring release, site prep, and fall release (the Projects) (collectively, the Services). Contractor shall perform each Project in three Work Areas in the Tillamook, Forest Grove, and Astoria districts. Each Work Area will be made up of multiple treatment units are identified the Purchase Order. Contractor shall perform the aerial application services by Treatment Area, meaning that Contractor shall complete area application services in one Treatment Area before moving on to the next Treatment Area.

Contractor agrees that it 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 and that the Services delivered by Contractor will materially comply with any service descriptions, specifications, standards or requirements set forth in this Contract.

Agency shall identify the Project work and the location that Contractor shall provide Services in writing by sending Contractor a Purchase Order that identifies the location of performance of Services, the acreage on which services will be performed, the type of Project work needed, the herbicide that will be applied, the spray mixture prescriptions, and other critical information that will allow Contractor to provide the Services.

A. Provision of Herbicides

Agency shall furnish all herbicides to Contractor following the provision of a Purchase Order. Agency may add surfactants or drift control agents to enhance spray and brush contact or protect streams and private property by specificizing that such surfactants or agents shall be used in a Purchase Order. Agency shall provide any surfactants or agents to Contractor. Contractor shall use water as basic carrier. Agency shall make all herbicides, surfactants, and agents (collectively, Chemicals) available to Contractor at its district headquarters, or another location specified in a Purchase Order.

Contractor shall transport all Chemicals to the Work Areas.

B. Herbicide Application Services

Contractor shall provide the Services by evenly applying herbicides in the Treatment Units identified in a Purchase Order. The following specifications apply to the Services:

i. AIRCRAFT AND EQUIPMENT.

1. AIRCRAFT REQUIRED. Contractor shall provide one (1) or two (2) helicopters with turbine-driven engines maintained according to FAA Standards applicable to flights conducted within the scope of the contract.

1. Each helicopter shall be capable of carrying and applying a minimum of 70 gallons of spray material on each flight from any heliport on the project area during the contract period.

1. SPRAY EQUIPMENT. Aerial spraying equipment shall be capable of disseminating the liquid chemical mixture at a measured rate and swath width. Contractor may be required to demonstrate the effective rate and swath width of spray equipment for each aircraft used on the project.

Nozzles shall produce a uniform spray pattern that minimizes fine spray droplets and drift potential. Nozzles shall be approved prior to spray in writing by Agency.

Spray equipment shall be maintained in a leak-proof condition, and each nozzle shall have a positive shutoff.

Replacement nozzles shall be kept with each helicopter for use whenever a nozzle is determined to be leaking.

The spray boom shall be mounted forward of the front uprights of the helicopter skids. The spray boom shall be mounted to the helicopter in a rigid manner, not slung beneath. The spray boom shall be no longer than the rotor length and shall have the capability to apply herbicides using ½ the spray boom.

1. RADIO EQUIPMENT. Each helicopter shall be equipped with a VHF aircraft radio, in good operating condition, capable of transmitting and receiving 122.9 MHZ. The pilot shall have a boom microphone and headset connected with the radio for ease and convenience of operation. The pilot shall constantly monitor the radio and respond to communications from the ground.

Contractor shall provide the capability to attach and interface a portable, forest net radio through the audio system of the helicopter, and that system will be capable of transmitting and receiving at all times. Any break in radio communication with AGENCY REPRESENTATIVE will require a pause in operations until the radio is in working condition.

All ground vehicles described below in “FACILITATING EQUIPMENT”, shall be equipped with a working CB radio for monitoring traffic on forest roads.

1. GLOBAL POSITIONING SYSTEM (GPS). Contractor shall provide a GPS receiver to facilitate navigation to and from treatment units within each work area. Agency will provide shape files, latitude and longitude coordinates for treatment units, landings, and other points of concern. Agency may request shape file data of flight paths and spray locations.

1. FACILITATING EQUIPMENT.

CHEMICAL MIXING AND MEASURING DEVICES. Contractor shall furnish mixing tanks and other equipment necessary to prepare the specified chemical mixtures, to maintain chemicals mechanically in a mixed state, and to load such chemical mixtures into the aircraft specified. Contractor shall measure chemical quantities to meet the rates per acre as provided by Agency within 1% accuracy. Tank Quantities shall be measured as accurately as possible using calibrated dip sticks, or other means of measuring liquids, as approved by Agency. Discharge of chemical mixture from tanks will be required to run through a meter with accuracy acceptable to Agency representative. Contractor shall ensure that Agency representative is present at all times chemicals are mixed.

TANKERS. For each helicopter, Contractor shall furnish at least one tanker with adequate capacity to mix the required chemicals and to avoid any delay.

Contractor shall triple rinse all empty chemical containers after mixing operations.

All ground vehicles shall have the power to negotiate roads in the contract area with a full load and to have all necessary licenses and permits to operate on public roads.

Spray tank shall not be galvanized steel or unlined steel (except stainless steel) for the storage of glyphosate.

PUMPS. Contractor shall furnish portable pumps with necessary suction hose and feed hoses to supply the truck tanks with water from streams. This unit will be used for water only. An air gap separation or suitable back-flow preventer shall be provided where mixing water is obtained by direct connection to a domestic water supply or where water is taken from streams or ponds. A pump screen that complies with Oregon Department of Fish and Wildlife regulations shall be used at all times during water diversion. Only registered diversion points on Agency managed lands as shown on Exhibit A or other Registered Water Use Sites as approved by Agency shall be used.

1. EQUIPMENT TERMS.

MAINTENANCE. Ground equipment shall be maintained to operate efficiently and to prevent leakage of chemicals, carriers, or spray mixture.

SECURITY. All valves, plumbing, hoses, and similar equipment on tankers shall be enclosed in locked compartments to prevent removal of chemical mixtures by unauthorized personnel.

MOVEMENT OF EQUIPMENT. Ground or aircraft equipment containing mixed chemicals will not be moved from the operating area without approval of Agency representative.

ii. PERSONNEL

a. PILOT

(1) PILOT REQUIREMENTS. Each pilot shall have flight time and experience as pilot in command with the following minimum amounts as substantiated by pilot log book:

Helicopter time 1,500 flight hours

Helicopter turbine 250 flight hours

(2) Each pilot shall be able to furnish for inspection any appropriate certificate or license while operating by contract or agreement with Agency. Pilot must have a valid Oregon Commercial Pesticide Applicator License with Forest Category and an Aerial Applicator License.

(3) PILOT FLIGHT TIME RESTRICTIONS. All pilots covered under this contract will be subject to the following flight duty time limitations. All work-related flying time shall count toward the limitation.

(a) Pilots may not fly more than 6 hours per day while performing aerial application activities. With the addition of ferry flight time, first day total may not exceed 8 hours of flight time.

(b) Pilots may not exceed 40 hours of flight time in any 7 consecutive days.

(c) Pilots flying aerial applications may not be on duty for more than 14 hours in any 24 consecutive hours, and each pilot shall have a minimum of 10 consecutive hours of rest during the 24-hour period prior to the duty period.

(d) All pilots required to fly after 2200 hours or before 0600 hours shall be given a minimum of 12 hours of rest following completion of the duty period in which the flight occurred.

(e) All pilots must be relieved of duties and be given a minimum of two days of rest in any 14-day period.

GROUND PERSONNEL. Contractor shall furnish experienced personnel capable of maintaining and servicing ground and aerial equipment, that have at a minimum a Pesticide Trainee License for mixing and loading chemicals into aircraft and have a CDL for driving and operating ground equipment.

b. METHODS AND LIMITS OF APPLICATION

(1) METHOD OF APPLICATION

(a) Spray Distribution. Spray material shall be applied at the amount of 10 gallons per acre as uniformly as flying conditions permit. Agency reserves the right to adjust prescriptions to enhance spray and brush contact.

(2) LIMITS OF APPLICATION.

(a) Weather Conditions. The spray material will be applied under weather conditions which will protect non-target forest resources and comply with the product label requirements and the Forest Practices Act. Agency shall provide permission to commence or suspend operations with respect to this item.

Conditions for operation shutdown include but are not limited to any one of the following:

- Temperature above 80°F,

- Relative Humidity below 40%, or

- Windspeed greater than 7 mph.

If a weather shutdown occurs, Agency, at its sole discretion, will decide when Contractor will proceed to next Treatment Unit.

(b) Stream Protection.

(i) Where topography allows, the spray material shall be applied parallel to all streams with live water and areas of open water. An unsprayed area shall be left on either side of all streams with live water and areas of open water. The amount of unsprayed area shall be in accordance with the Forest Practices Act and as directed by Agency. All applications made along stream buffers shall be done using ½ the spray boom.

(ii) Spray equipment shall not be washed, nor wash water discharged, where any waterway will be contaminated.

(iii) A separate portable pump, as described in “FACILITATING EQUIPMENT”, is required when water is to be taken from streams or waterholes, and this pump shall not be used for chemicals.

(c) Buffer Zones. Whenever practicable, spray shall be applied parallel to highways and property boundaries, and unsprayed strips shall be left in these areas as designated by Agency representative. All applications made along property boundaries shall be done using ½ the spray boom.

(d) Other Restrictions. Helicopter flights to and from projects must be confined to forested areas with minimal flying over inhabited areas. When it is necessary to fly over inhabited areas, at least 500 feet elevation must be maintained on routes as designated by Agency representative. Temporary restrictions may be made for high-use recreation areas, animal habitat zones, or forest management work areas. A 500-foot buffer strip shall be left around all residences, unless Agency representative receives written permission from resident.

(3) SUPERVISION. Contractor shall ensure that Agency representative is present at all times to observe application. Pilot shall review each unit from the ground with the Agency representative and shall demonstrate understanding of the unit boundaries, hazards, and buffer zones before Agency shall allow spraying to commence on that unit. In addition to this requirement, pilot may choose to also survey unit from the air.

(a) FACILITIES, MATERIALS, AND SERVICES FURNISHED BY STATE:

(i) An Agency representative familiar with the project areas to administer the contract

(ii) Suitable bases from which to operate aircraft

(iii) Unit shapefiles, aerial photographs, and maps for orientation of pilots, including flight hazard map

(iv) Mixing sites for combining chemicals and carriers

(v) Portable or mobile radio units to be mounted in the helicopter for communication with Agency personnel

(vi) Chemicals, adjuvants, and carrier at district headquarters

(vii) Helicopter Load Calculation Form C. Service Periods.

Projects shall be accomplished during the following Service Periods:

Contractor shall commence Services as specified by Agency in writing in a Purchase Order, weather conditions permitting, unless otherwise approved by Agency. Contractor shall schedule a pre-work meeting with Agency before each Service Period listed above.

Agency may specify priority of spraying by Work Area and by Service Period in Purchase Orders; such priority based on likelihood of changing weather conditions, phenological events on portions of the areas, and public recreational uses. Unless otherwise specified by Agency, in the case of overlapping Service Periods, Site Preparation shall take priority.

Once spraying operations for a Service Period has commenced, Contractor shall have personnel on the Project until finished. Exceptions to this rule may, but are not required, be approved at discretion of the Agency and any exceptions shall be approved in writing.

Contractor shall work through any state or federal holiday within the Service Period, unless told otherwise by Agency.

PAUSING OPERATION. Agency may shut down the operation for up to 72 hours if Agency deems a violation of public or environmental safety has occurred, including but not limited to herbicide drift. The decision on the length of shutdown will be made by Agency.

Contractor shall complete each Work Area under the Contract no later than project period ending dates listed under WORK PERIODS.

3. SPECIAL REQUIREMENTS

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

[List name, title, identify the specific services each Key Person is required to perform under this Contract.]

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

B. SUBCONTRACTORS. No part of the work may be subcontracted without written authorization from Agency. Final billing for completed work shall be accompanied by a statement from each subcontractor, signed by that subcontractor, stating that payment in full has been made for all materials supplied and services rendered by that subcontractor.

Contractor shall provide written notice to Agency when any approved subcontractor is no longer performing the specified Services if those Services have not been successfully completed.

C. FIRE RESPONSIBILITY. If a fire occurs on a work area while the Services are being performed, Contractor shall immediately make every reasonable effort to control and extinguish the fire and continue this effort until the fire is extinguished. Contractor is responsible for all firefighting costs incurred by Contractor, State, or forest protective association or “Association” as defined in ORS 477.001 for fires resulting from Contractor's work under the contract, or willful, malicious, or negligent acts of Contractor. Without limiting the generality of the terms and conditions of the Contract, Contractor shall defend, save, hold harmless, and indemnify the State and Association, their officers, employees and agents, from and against all claims, suits, actions, losses, damages, liabilities, and costs and expenses of any nature whatsoever resulting from, arising out of, or relating to any fire under this Section.

Agency also has the authority to suspend any or all work due to fire hazard.

D. PERMITS, LICENSES, AND SAFETY: Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful performance of the Services. Agency may at any time require Contractor to satisfy Agency that the Services comply with state, federal, and local laws and regulations. Agency may require Contractor to obtain a permit, license, or approval from the governmental body or agency responsible for administering applicable laws before Contractor may begin or continue Services under the Contract. In the performance Services under the Contract, Contractor shall use every reasonable and practicable means to avoid damage to property and injury to persons.

All aircraft required in this contract, and pilots therefore, shall comply with current Federal Aviation Administration, Oregon Department of Aviation, and Oregon State Department of Agriculture rules and regulations, respectively, which are applicable to this contract.

E. LOSS OF CHEMICALS. In the event of loss of chemicals or mixtures from leakage, spills, or dumps, Contractor shall carry out procedures to contain and neutralize such losses and shall immediately notify Agency of any such incident. Contractor shall be responsible for all costs of containment, neutralization, and other measures as may be required.

F. MECHANICAL BREAKDOWN. Should any helicopter or other essential facilitating equipment breakdown for any reason and cause stoppage or delay of the Contractor’s work under the Contract, Contractor shall immediately repair or replace that equipment in order to proceed with the work under the Contract at the beginning of the working day following the breakdown, unless Agency specifies otherwise.

A. AMOUNT OF PAYMENT FOR SERVICES.

i. Agency shall pay Contractor $____________ per acre for completing all Services related to Site Preparation.

ii. Agency shall pay Contractor $____________ per acre for completing all Services related to Fall Release.

iii. Agency shall pay Contractor $____________ per acre for completing all Services related to Spring Release.

Agency shall not reimburse Contractor for any expenses under this Contract.

ii. If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Contract, deliver to Agency a completed and signed W-8 form, 8233 form, or W-9 form, as applicable, from the Internal Revenue Service (“IRS”), as evidence that Agency is not required by 26 USC 1441 to withhold part of Contractor's payment. Such forms are currently available at http://www.irs.gov. Agency may withhold payments to Contractor pending Agency's receipt from Contractor of the applicable, completed and signed form. If Agency does not receive the applicable, completed and signed form from Contractor, or if the IRS provides notice to Agency that Contractor's information on the form provided is incorrect, Agency will withhold as federal income tax 30% of all amounts Agency owes to Contractor under this Contract.

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

1. The Contract number;

1. A description of Services performed:

0. The acreage of Site Preparation, Fall Release, and Spring Release;

0. The Work Area and the Treatment Unit in which Services were performed;

0. The type of chemical applied.

1. The total amount due and the payment address.

ii. Depending on the location of the Work Area within each ODF district, Contractor shall send all invoices to the contact for which that Work Area belongs.

Contractor’s claims to Agency for overdue payments on invoices are subject to ORS 293.462.

4. GENERAL TERMS AND CONDITIONS.

ii. Agency’s performance under this Contract is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

C. FORCE MAJEURE.

Neither Agency nor Contractor shall be responsible for any failure to perform or for any delay in the C of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the breaching party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate the cause of Contractor’s delay or breach and shall, upon the cessation of the cause, continue performing under this Contract. Agency may terminate this Contract upon written notice to Contractor after reasonably determining that the delay or breach will likely prevent successful performance of this Contract.

D. INSURANCE.

Contractor shall obtain the insurance required under Section 5 to performing under this Contract and shall maintain the required insurance throughout the duration of this Contract and all warranty periods.

ii. If Contractor is currently performing work for State or the federal government, Contractor by signature to this Contract represents and warrants: Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance of this Contract.

iii. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and unless required by prevailing federal law or regulations, Agency will not withhold from compensation or payments to Contractor any amount(s) to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

ii. STATE SHALL REASONABLY COOPERATE IN GOOD FAITH, AT CONTRACTOR’S REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY ACCEPTABLE TO THE OREGON ATTORNEY GENERAL TO DEFEND SUCH CLAIMS AND SHALL BEAR ALL COSTS OF SUCH COUNSEL. COUNSEL MUST ACCEPT APPOINTMENT AS A SPECIAL ASSISTANT ATTORNEY GENERAL UNDER ORS CHAPTER 180 BEFORE COUNSEL MAY ACT IN THE NAME OF, OR REPRESENT THE INTERESTS OF, STATE, ITS AGENCIES, OFFICERS, EMPLOYEES OR AGENTS. STATE MAY ELECT TO ASSUME ITS OWN DEFENSE WITH AN ATTORNEY OF ITS OWN CHOICE AND AT ITS OWN EXPENSE AT ANY TIME STATE DETERMINES IMPORTANT GOVERNMENTAL INTERESTS ARE AT STAKE. SUBJECT TO THE LIMITATIONS NOTED ABOVE, CONTRACTOR MAY DEFEND SUCH CLAIMS WITH COUNSEL OF ITS OWN CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS SHALL OCCUR WITHOUT THE CONSENT OF STATE, WHICH CONSENT SHALL NOT BE UNREASOABLY WITHHELD, CONDITIONED OR DELAYED.

b. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained the license or certificate within 48 hours after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice; or

c. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform its obligations under this Contract within the time specified or any extension of that time provided by Agency in writing, and Contractor fails to cure the breach within 48 hours after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice.

ii. Breach by Agency. Agency breaches this Contract if:

a. Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure its failure to pay within fourteen (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice; or

b. Agency commits any material breach of any covenant, warranty, or obligation under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and Agency fails to cure the breach within fourteen (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice.

b. Suspension of any Services until Contractor by written notice to Contractor until has corrected the deficiencies;

c. Withholding payment of all amounts in Contractor’s invoices for Services that Contractor is obligated to but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively;

d. Initiation of an action or proceeding for damages, including direct, indirect damages (including but not limited to obtaining Services from other sources), incidental, and consequential damages, specific performance, declaratory, or injunctive relief; or

e. Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor in an amount equal to State’s setoff right, without penalty;

These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant to Section 4(I)(i).

ii. Contractor's Remedies. If Agency terminates this Contract for convenience under Section 4(I)(i), or if Agency is in breach under Section 4(G)(ii) and whether or not Contractor elects to exercise its right to terminate this Contract under Section 4(I)(iii), Contractor's sole remedy is payment for Services completed in accordance with all terms and conditions of this Contract at the rate per acre, upon submission of an invoice to Agency.

iii. ATTORNEYS' FEES.

Except for defense costs and expenses pursuant to Section 4.f, neither Agency nor Contractor is entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to this Contract.

b. Agency may, in its sole discretion, terminate this Contract, immediately upon notice to Contractor, or at a later date as Agency may establish in the notice, upon the occurrence of any of the following events:

- Agency fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to pay for Services.

· Federal or state laws, regulations, or guidelines are modified or interpreted in a way that either the purchase of Services by Agency under this Contract is prohibited, or Agency is prohibited from paying for Services from the planned funding source; or

· Contractor is in breach.

Contractor shall stop performance under this Contract as directed by Agency in any written notice of termination delivered to Contractor.

iii. Contractor may terminate this Contract immediately upon written notice to Agency, or at a later date as Contractor may establish in the notice, if Agency is in breach pursuant.

J. ACCESS TO RECORDS.

Contractor shall retain, maintain, and keep accessible all records relevant to this Contract ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following Contract termination or full performance, the period required by applicable law following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever ending is later. Contractor shall maintain all financial Records in accordance with generally accepted accounting principles. During this Record-retention period, Contractor shall permit Agency, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

K. NOTICES.

All notices required under this Contract shall be in writing and addressed to the party's authorized representative. Mailed notices are deemed received five (5) days after the post mark date when properly addressed and deposited prepaid into the U.S. postal service. Notices delivered by personal delivery are deemed received when delivered to the address specified for the receiving party’s authorized representative.

L. GOVERNING LAW.

The Contract is governed by and construed in accordance with the laws of State, without regard to principles of conflicts of laws.

M. VENUE; CONSENT TO JURISDICTION.

Any claim, action, suit or proceeding (collectively, “Proceeding”) between Agency and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of State for Marion County; provided, however, if a Proceeding must be brought in a federal forum, then unless otherwise prohibited by law, it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THESE COURTS AND WAIVES ANY OBJECTION TO VENUE IN THESE COURTS AND ANY CLAIM THAT THE FORUM IS AN INCONVENIENT FORUM. Nothing in these provisions shall be construed as a waiver of the State of Oregon's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or a waiver of any defenses to Proceedings or jurisdiction based thereon.

N. THIRD PARTY BENEFICIARIES.

Agency 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 shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless the third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. State is an intended beneficiary of the terms of this Contract.

O. SEVERABILITY.

If any 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 shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Contract did not contain the particular provision held to be invalid.

P. COUNTERPARTS.

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

Q. INTEGRATION AND MERGER.

This Contract constitutes the entire agreement between the parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract.

R. AMENDMENTS; WAIVER.

. No waiver, consent, or amendment of terms of this Contract shall bind either party unless in writing and signed by Agency and Contractor, and all necessary approvals have been obtained. Waivers and consents shall be effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Contract shall not constitute a waiver by Agency of that or any other provision.

S. SURVIVAL.

In addition to all provisions which by their nature extend beyond Contract termination or full performance, the following provisions shall remain in effect beyond any Contract termination or full performance: Sections 4.D, 4.F, 4.H, 4.J, 4.L, 4.M, and 4.N.

5. INSURANCE

A. REQUIRED INSURANCE. Contractor shall obtain and maintain throughout the duration of this Contract and all warranty periods at Contractor’s expense the insurance specified below. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in State and that are acceptable to Agency.

i. WORKERS COMPENSATION. All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall 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.

v. POLLUTION LIABILITY. Pollution Liability Insurance covering Contractor’s liability for bodily injury, property damage, and environmental damage resulting from either sudden or gradual accidental pollution and related cleanup costs incurred by Contractor, all arising out of the Goods delivered or Services (including transportation risk) performed under this Contract. Combined single limit per occurrence shall not be less than $1,000,000. Annual aggregate limit shall not be less than $2,000,000.

vi. EXCESS/UMBRELLA INSURANCE. A combination of primary and excess/umbrella insurance is acceptable. If you are using excess/umbrella insurance to meet the minimum insurance requirement, your certificate must include a list of the policies that fall under the excess/umbrella insurance. Sample wording is “The Excess/Umbrella policy is excess over General Liability, Auto Liability, etc.”

B. ADDITIONAL INSURED. The Commercial General Liability insurance and Automobile Liability insurance required under this Contract shall include the State of Oregon, its officers, employees and agents as Additional Insureds 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.

C. “TAIL" COVERAGE. If any of the required professional liability insurance is on a "claims made" basis, Contractor shall either 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 this Contract, for a minimum of 24 months following the later of (i) Contractor’s completion and Agency’s acceptance of all Services required under this Contract, or, (ii) The expiration of all warranty periods provided under this Contract. Notwithstanding the foregoing 24-month requirement, if Contractor elects to maintain “tail” coverage and if the maximum time period “tail” coverage reasonably available in the marketplace is less than the 24-month period described above, then Contractor shall maintain “tail” coverage for the maximum time period that “tail” coverage is reasonably available in the marketplace for the coverage required under this Contract. Contractor shall provide to Agency, upon Agency’s request, certification of the coverage required under this Section C.

D. NOTICE OF CANCELLATION OR CHANGE. There shall be no cancellation, material change, potential exhaustion of aggregate limits or non-renewal of insurance coverage(s) without 30 days' written notice from this Contractor or its insurer(s) to Agency. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract by Agency.

E. CERTIFICATE(S) OF INSURANCE. Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract. The Certificate(s) must specify all entities and individuals who are endorsed on the policy as Additional Insured (or Loss Payees). Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

6. CERTIFICATIONS AND SIGNATURE OF CONTRACTOR'S AUTHORIZED REPRESENTATIVE.

THIS CONTRACT MUST BE SIGNED IN INK BY AN AUTHORIZED REPRESENTATIVE OF CONTRACTOR.

The undersigned certifies under penalty of perjury both individually and on behalf of Contractor that:

A. The undersigned is a duly authorized representative of Contractor, has been authorized by Contractor to make all representations, attestations, and certifications contained in this Contract and to execute this Contract on behalf of Contractor;

B. The undersigned 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; and (c) Contractor is an independent contractor as defined in ORS 670.600.

C. To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS 200.055 in obtaining any required subcontracts.

D. 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 http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf;

E. 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.

F. Contractor ___ is / ___ is not a nonresident alien as defined in 26 USC § 7701(b)(1) (check one). See Section 2.D.ii.

Contractor (print Contractor’s name):

Authorized Signature:

By (print name):

Title:

Date:

Contact Person (Type or Print):

Contact Telephone Number: (______)

Contact Fax Number: (_______)

Contact E-Mail Address:

8. SIGNATURE OF STATE’S AUTHORIZED REPRESENTATIVE.

State of Oregon acting by and through the Department of Forestry

Authorized Signature:

By (print name):

Title:

Date:

Agency Contact Person (Type or Print):

Contact Telephone Number: (______)

Fax Number: (______)

E-Mail Address: