PO-62900-000021045 Fremont Forestry Contract -Executed.pdf

ITB # S-62900-00006695 2023-2024 Astoria Tree Planting Services Master Blanket #PO-62900-21045

STATE OF OREGON

PRICE AGREEMENTT FOR THE

PURCHASE OF SERVICES

This Price Agreement is between the State of Oregon (“State”) acting by and through the Oregon Department of Forestry ("Agency" or “ODF”), and (Insert Contractor’s name here; if Contractor is a corporation, add the state of incorporation, e.g.: Fremont Forest Systems, Inc., ("Contractor"). Agency and Contractor shall collectively be referred to as the “Parties.” This Price Agreement is effective on the date it has been signed by all Parties and all required State of Oregon approvals have been obtained. This Price Agreement expires on September 1, 2024, unless extended or terminated in accordance with terms herein.

The Agency issued an Invitation to Bid (ITB) # S-62900-0000066695 seeking bids from qualified and Responsible Bidders to provide the Services described in this Price Agreement. The contractor submitted a Bid in response to the ITB offering to provide the Services pursuant to the terms and conditions set forth herein. The Agency desires to award the Price Agreement to Contractor.

NOW, THEREFORE, in consideration of the foregoing recitals and subject to the covenants, terms, and conditions set forth below, the Parties agree as follows:

1. STATEMENT OF SERVICES.

A. GENERAL INFORMATION. The purpose of this Price Agreement is to furnish all equipment and labor to perform tree planting services for ODF in the Astoria District in Northwest Oregon, with all planting to be completed between January 3, 2024, and April 30, 2024.

B. REQUIRED SERVICES, DELIVERABLES, DELIVERY SCHEDULE, ACCEPTANCE

CRITERIA AND PROCESS. Contractor shall perform all Services as set forth in the Statement of Work (the “Services”) attached hereto as Exhibit A and incorporated in its entirety herein by this reference. Contractor shall perform the Services in accordance with the terms and conditions of the Price Agreement.

C. SPECIAL REQUIREMENTS. See section 7 below, Special Price Agreement Terms and Conditions.

2. COMPENSATION.

A. METHOD OF AND BASIS FOR PAYMENT FOR SERVICES.

Agency agrees to pay the Contractor the amounts specified in Exhibit B (“Compensation”) for Work certified as acceptable in accordance with Section 1.12 and Section 1.13 of Exhibit A (Statement of Work).

B. NO EXPENSE REIMBURSEMENT.

Agency will not reimburse Contractor for any expenses under this Price Agreement. Travel time and expenses to and from the job site will not be paid. No move-in, move-out, or demobilization costs will be paid. Payment will be made only for acres accomplished on the job site.

C. GENERAL PAYMENT PROVISIONS.

i. Agency’s Payment. Agency shall pay Contractor for Services performed at the rates and prices specified in Exhibit B of this Price Agreement, which is incorporated in its entirety herein by this reference, and consistent with the Payment Procedure set forth in Section

1.12 of Exhibit A. The contractor shall look solely to the Agency for payment of all amounts the Agency owes to the Contractor. The contractor shall not be compensated by any agency or department of State other than the Agency for Services performed.

ii. If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Price Agreement, 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 Price Agreement.

iii. Available Funding; Payments: The State of Oregon’s payment obligations under this Price Agreement are contingent upon Agency’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under the Price Agreement. Nothing in this Price 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. Contractor shall not be compensated for Services performed under the Price Agreement by any other State agency or department other than Agency for Services performed. Agency will only pay for completed Services that have been accepted by Agency.

D. INVOICES.

i. Contractor shall send invoices to Agency no more often than monthly for Services completed and accepted by Agency in accordance with Exhibit A of this Price Agreement.

Contractor shall include in each invoice:

a. The Price Agreement number: PO-62900-0000021045

b. A detailed description of Services performed, including the name or names of the individuals who performed Services and prepared the deliverables to which the invoice applies, the dates Services were performed, all deliverables delivered during the period of the invoices, the rate or rates for Services performed, and the total cost of Services; and

c. The total amount due and the payment address. ALL BILLINGS/INVOICES SHALL

BE DIRECTED TO:

Oregon Department of Forestry ATTN: Brad Catton 92219 Highway 202 Astoria, OR 97103

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

3. GENERAL TERMS AND CONDITIONS.

A. INTELLECTUAL PROPERTY & OPEN SOURCE; TITLE TO GOODS.

i. Definitions. As used in this Price Agreement, the following terms have the meanings set forth below:

http://www.irs.gov/

a. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from Services.

b. “Open-Source Elements” means any Work Product subject to any open-source initiative certified license, including Work Product based upon any open-source initiative certified licensed work.

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

d. “Work Product” means all Services and Goods Contractor delivers or is required to deliver to Agency pursuant to this Price Agreement.

ii. New Works. All intellectual property rights in the Work Product created by the Contractor under this Price Agreement shall be the exclusive property of Agency. All Work Product authored by Contractor under this Price Agreement shall be deemed "works made for hire" to the extent permitted by the United States Copyright Act. To the extent Agency is not the owner of the intellectual property rights in such Work Product, Contractor hereby irrevocably assigns to Agency all its rights, title, and interest in such Work Product. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Agency. Contractor forever waives all rights relating to such Work Product created under this Price Agreement, including without limitation, all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

iii. Contractor Intellectual Property. If intellectual property rights in the Work Product are Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on Agency’s behalf.

iv. Third Party Intellectual Property. To the extent Contractor has the authority; Contractor shall sublicense or pass through to Agency all Third-Party Intellectual Property.

Contractor represents and warrants that it has provided written disclosure to Agency of all Third-Party Intellectual Property that must. independently licensed by an Agency to fully enjoy the benefit of the Work Product. If Contractor failed to provide such written disclosure, Contractor shall secure on the Agency’s behalf and in the name of the Agency, an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third-Party Intellectual Property, and to authorize others to do the same on Agency’s behalf.

v. Open-Source Approval and Notice. Any Open-Source Elements in the Work Product must be approved in advance and in writing by the Agency. If Agency approves the use of Open-Source Elements, Contractor shall:

a. Notify the Agency in writing that the Work Product contains Open-Source Elements.

b. Identify the specific portion of the Work Product that contain Open-Source Elements;

and

c. Provide a copy of the applicable license for each Open-Source Element to Agency.

B. OTHER REPRESENTATIONS AND WARRANTIES.

i. Contractor represents and further warrants that:

a. Contractor has the authority to enter and perform in accordance with this Price Agreement and that this Price Agreement, when executed and delivered, is a valid and binding obligation of Contractor that is enforceable in accordance with its terms.

b. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence and perform Services in a timely, professional, and workmanlike manner in accordance with standards applicable to Contractor’s industry, trade, or profession.

c. Contractor is and shall be, at all times during the term of this Price Agreement, qualified, professionally competent, and duly licensed to perform Services; and

d. When used as authorized by this Price Agreement, no Work Product infringes nor will Agency’s use, duplication or transfer of the Work Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

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

ii. The warranties specified in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and shall be interpreted broadly to give the Agency the greatest warranty protection available.

C. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS.

i. Contractor shall comply with all federal, state, and local laws, regulations, and ordinances applicable to this Price Agreement or to Contractor’s obligations under this Price Agreement, as those laws, regulations and ordinances may be adopted or amended from time to time.

ii. Agency’s performance under this Price Agreement is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Price Agreement), 279B.230 and 279B.235 (if applicable to this Price Agreement), which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Price Agreement, 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)).

D. AMENDMENTS.

Amendments shall be made by written documentation only and signed by the Parties to be effective.

E. TIME IS OF THE ESSENCE, NOTIFICATION OF POTENTIAL DEFAULT.

Contractor agrees that time is of the essence in the performance of its obligations under this Price Agreement. Price Agreement shall notify Agency immediately of failure to receive H- 2B visa that may prevent Contractor from meeting the planting crew requirements set forth in Exhibit A.

F. FORCE MAJEURE.

Neither Agency nor Contractor shall be responsible for any failure to perform or for any delay in the performance of any obligation under this Price Agreement 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 Price Agreement. Agency may terminate this Price

Agreement upon written notice to Contractor after determining that the delay or breach will prevent successful performance of this Price Agreement.

G. INSURANCE.

Contractor shall obtain the insurance required under Exhibit C, which exhibit is incorporated in its entirety herein by this reference, prior to performing under this Price Agreement and shall maintain the required insurance throughout the duration of this Price Agreement and all warranty periods.

H. INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND

WITHHOLDING.

i. Contractor shall perform all Services as an independent Contractor. Although Agency may (a) determine and modify the delivery schedule for Services to be performed and (b) evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Price Agreement. Contractor certifies, represents, and warrants that Contractor is an independent contractor of Agency under all applicable State and federal law. Contractor is not an "officer", "employee", or "agent" of Agency as those terms are used in ORS 30.265.

ii. If Contractor is currently performing work for State or the federal government, Contractor by signature to this Price Agreement represents and warrants: Contractor's performance of this Price Agreement 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 Price Agreement.

iii. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Price Agreement, 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 Price Agreement.

I. INDEMNIFICATION.

i. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND

EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER

(“CLAIMS”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTS OR

OMISSIONS OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES,

SUBCONTRACTORS, OR AGENTS UNDER THIS PRICE AGREEMENT.

ii. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 3.I.i, CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS AND

INDEMNIFY STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND

EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES,

DAMAGES, LIABILITIES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS FEES,

ARISING OUT OF OR RELATING TO ANY CLAIMS THAT THE WORK, THE WORK

PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEM DELIVERED UNDER

THIS PRICE AGREEMENT BY CONTRACTOR THAT MAY BE THE SUBJECT OF

PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW

OR DOCTRINE, OR AGENCY’S REASONABLE USE THEREOF, INFRINGES ANY

PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK

WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY

(“INFRINGEMENT CLAIM”); PROVIDED, THAT STATE SHALL PROVIDE

CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

iii. STATE SHALL REASONABLY COOPERATE IN GOOD FAITH, AT CONTRACTOR’S

REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS AND INFRINGEMENT

CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY

ACCEPTABLE TO THE OREGON ATTORNEY GENERAL TO DEFEND SUCH CLAIMS

AND INFRINGEMENT CLAIMS AND SHALL BEAR ALL COSTS OF SUCH COUNSEL.

COUNSEL MUST ACCEPT THE 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 AND INFRINGEMENT CLAIMS WITH COUNSEL OF ITS OWN

CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE OF ANY SUCH

CLAIMS AND INFRINGEMENT CLAIMS SHALL OCCUR WITHOUT THE CONSENT OF

STATE, WHICH CONSENT SHALL NOT BE UNREASOABLY WITHHELD,

CONDITIONED OR DELAYED.

J. ASSIGNMENT OF ANTITRUST RIGHTS.

i. CONTRACTOR IRREVOCABLY ASSIGNS TO STATE ANY CLAIM FOR RELIEF OR

CAUSE OF ACTION WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO

CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-

15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR

SERVICES PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING OUT

CONTRACTOR’S OBLIGATIONS UNDER THIS PRICE AGREEMENT, INCLUDING, AT

STATE’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH

CLAIM FOR RELIEF OR CAUSE OF ACTION.

ii. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS HIRED TO PERFORM

ANY OF CONTRACTOR’S DUTIES UNDER THIS PRICE AGREEMENT TO

IRREVOCABLY ASSIGN TO STATE, AS THIRD PARTY BENEFICIARY, ANY RIGHT,

TITLE OR INTEREST THAT HAS ACCRUED OR WHICH MAY ACCRUE IN THE

FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR

ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO

THE SUBCONTRACTOR FOR THE PURPOSE OF CARRYING OUT THE

SUBCONTRACTOR’S OBLIGATIONS TO CONTRACTOR IN PURSUANCE OF THIS

PRICE AGREEMENT, INCLUDING, AT STATE’S OPTION, THE RIGHT TO CONTROL

ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

K. EVENTS OF BREACH.

i. Breach by Contractor. Contractor breaches this Price Agreement if:

a. Contractor institutes or has instituted against its insolvency, receivership, or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis.

b. Contractor no longer holds a license, or certificate that is required for Contractor to perform its obligations under this Price Agreement and Contractor has not obtained the license or certificate within fourteen (14) calendar days 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 Price Agreement, fails to perform its obligations under this Price Agreement within the time specified or any extension of that time, and Contractor fails to cure the breach within fourteen (14) calendar days after Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice.

d. Contractor indicates that it is unable to perform Services within the 24-hour period specified by Agency in accordance with Exhibit A such that Agency is required to cover Contractor’s nonperformance by requesting Services from another contractor; or

e. Contractor indicates in writing (or fails to provide notification as required by Section 3.E above) that Contractor will be unable to meet the planting crew requirements set forth inf Exhibit A due its failure to receive required H-2B visa(s).

ii. Breach by Agency. Agency breaches this Price Agreement if:

a. Agency fails to pay Contractor any amount pursuant to the terms of this Price Agreement, 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 Price Agreement, 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.

L. REMEDIES.

i. State’s Remedies. If Contractor is in breach under section 3.K.i, then in addition to the remedies afforded elsewhere in this Price Agreement, State shall be entitled to recover for all damages suffered as the result of Contractor's breach of this Price Agreement, including but not limited to direct, indirect, incidental, and consequential damages. State may, at Agency’s option, pursue any or all the remedies available under this Price Agreement and at law or in equity, including, but not limited to:

a. Termination of this Price Agreement under section 3.M. ii.

b. 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.

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

d. 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; or

e. Seeking recovery of actual damages for any breach of Price Agreement described in Section K.i.d. above.

These remedies are cumulative to the extent the remedies are not inconsistent, and the State 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 under section 3. K. i, the rights and obligations of the Parties shall be the same as if this Price Agreement were terminated pursuant to section 3.M.ii.a.

ii. Contractor’s Remedies. If Agency terminates this Price Agreement for convenience under section 3. M.ii. a, or if Agency is in breach under section 3.K.ii and whether Contractor elects to exercise its right to terminate this Price Agreement under section 3.M.iii, Contractor's sole remedy is one of the following, as applicable:

a. For Services compensable on an hourly basis, a claim against Agency for unpaid invoices, hours worked but not yet invoiced, and authorized expenses for Services completed and accepted by Agency less any claims State has against Contractor.

b. For deliverable-based Services, a claim against Agency for the sum designated for completing the deliverable multiplied by the percentage of Services completed and accepted by Agency, less previous amounts paid, and any claims State has against Contractor.

If previous amounts paid to Contractor for Services and Goods exceed the amount due to Contractor under this section 3.L.ii, Contractor shall pay the excess amount to Agency immediately upon written demand.

iii. ATTORNEYS’ FEES.

Except for defense costs and expenses pursuant to section 3.I, 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 Price Agreement.

M. TERMINATION.

i. MUTUAL CONSENT. This Price Agreement may be terminated at any time by mutual written consent of the Parties.

ii. Agency:

a. Agency may, at its sole discretion, terminate this Price Agreement for its convenience upon thirty (30) calendar day’s written notice by Agency to Contractor.

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

A. 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 pay for Services from the planned funding source.

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

C. Contractor is in breach under section 3.K.i.

Contractor shall stop performance under this Price Agreement as directed by Agency in any written notice of termination delivered to Contractor under this section 3.M. ii. If this Price Agreement is so terminated, Contractor shall be paid in accordance with the terms of the Price Agreement for work completed and accepted by Agency.

iii. Contractor: Contractor may terminate this Price Agreement immediately upon written notice to Agency, or later as Contractor may establish in the notice, if Agency is in breach pursuant to section 3.K. ii.

N. ACCESS TO RECORDS.

Contractor shall retain, maintain, and keep accessible all records relevant to this Price Agreement ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following Price Agreement termination or full performance, the period required by applicable law following Price Agreement termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to this Price Agreement, 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 State, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

O. NOTICES.

All notices required under this Price Agreement shall be in writing and addressed to the party's authorized representative identified in accordance with section 7 of this Price Agreement.

Mailed notices are deemed received five (5) business days after the post mark date when properly addressed and deposited prepaid into the U.S. Postal Service. Faxed notices are deemed received upon electronic confirmation of successful transmission to the designated fax number. Notices delivered by personal delivery are deemed received when delivered to the address specified for the receiving party’s authorized representative.

P. GOVERNING LAW.

The Price Agreement is governed by and construed in accordance with the laws of Oregon, without regard to principles of conflicts of laws.

Q. VENUE; CONSENT TO JURISDICTION.

Any claim, action, suit or proceeding (collectively, “Proceeding”) between State and Contractor that arises from or relates to this Price Agreement 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 State'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.

R. SUBCONTRACTS; ASSIGNMENT; SUCCESSORS.

i. SUBCONTRACTS. Contractor shall not enter into any subcontracts for any of Services required under this Price Agreement without Agency’s prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor with respect to sections 1.C, 3.A, 3.B, 3.E, 3.I, 3.J, 3.N, 3.P and 3.R. Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Price Agreement.

ii. ASSIGNMENT. Contractor shall not assign, delegate, or transfer any of its rights or obligations under this Price Agreement without Agency’s prior written consent. Agency’s written consent does not relieve Contractor of any obligations under this Price Agreement, and any assignee, transferee, or delegate is considered Contractor’s agent.

iii. SUCCESSORS. The provisions of this Price Agreement are binding upon and inure to the benefit the Parties and their respective successors and permitted assigns, if any.

S. THIRD PARTY BENEFICIARIES.

The State and Contractor are the only Parties to this Price Agreement and are the only Parties entitled to enforce the terms of this Price Agreement. Nothing in this Price Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly, or otherwise, to third persons unless the third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Price Agreement. Agency is an intended beneficiary of the terms of this Price Agreement.

T. SEVERABILITY.

If any provision of this Price Agreement 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 Price Agreement did not contain the particular provision held to be invalid.

U. COUNTERPARTS.

This Price Agreement 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 Price Agreement so executed shall constitute an original.

V. INTEGRATION AND MERGER.

This Price Agreement 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 Price Agreement.

W. AMENDMENTS; WAIVER.

This Price Agreement may be amended to the extent permitted by applicable statutes and administrative rules and as the amendment scope and process may be further described in section 1, Statement of Services. No waiver, consent, or amendment of terms of this Price Agreement 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 Price Agreement shall not constitute a waiver by State of that or any other provision.

X. SURVIVAL.

In addition to all provisions which by their nature extend beyond Price Agreement termination or full performance, the following provisions shall remain in effect beyond any Price Agreement termination or full performance: sections 2.D, 3.A, 3.B, 3.G, 3.I, 3.J, 3.L, 3.N, 3.P, 3.Q, 3.S, 3.X and 4.

Y. ORDER OF PRECEDENCE.

The terms and conditions set out in this Price Agreement are as set forth in this Attachment 3 (Sample Price Agreement Form), including but not limited to Section 7, Special Terms and Conditions. Whenever possible, all terms and conditions of this Price Agreement are to be harmonized. In the event of a conflict between the terms and conditions set forth in Sections 1-6 of this Attachment 3 (Sample Price Agreement Form) and Section 7, Special Terms and Conditions, the Special Terms and Conditions take precedence, unless the other term in question is required by law. In the event of any other conflict, (i) the Special Terms and Conditions, (ii) the terms and conditions set forth in Sections 1-6 of this Attachment 3 (Sample Price Agreement Form), (iii) the remaining portions of the Invitation to Bid, and (iv) the Bid will be interpreted in the foregoing order of precedence.

4. RESERVED

5. RESERVED.

6. RESERVED

7. SPECIAL PRICE AGREEMENT TERMS AND CONDITIONS.

7.1. PRICE AGREEMENT TERM:

From the date Price Agreement has been signed by all Parties and all required State of Oregon approvals have been obtained (“Effective Date”) until September 1, 2024. The Price Agreement is anticipated to start on December 1, 2023, and the Services as set forth in the Statement of Work (Exhibit A) shall be completed by April 30, 2024. The initial Price Agreement term shall be for one (1) year.

7.2. EXTENSIONS:

At the option of the State, and upon written agreement by the Contractor, the Price Agreement may be extended for three (3) additional one (1)-year terms, by ODF providing to the Contractor written notice of the Agency's intent to extend the Price Agreement (the “Renewal Notice”). ODF shall provide the Renewal Notice as well as an updated Production Schedule and Planting Specification Table at least thirty (30) calendar days prior to the expiration of the Price Agreement or any extension thereto. If Contractor consents to the extension, it shall sign and return the Renewal Notice to ODF within the time specified therein. If the Contractor does not consent in writing, the Price Agreement shall expire according to its terms, unless earlier terminated. The total term of the Price Agreement, including extensions, may not exceed four (4) years.

7.3. PRICE ADJUSTMENTS:

Except as set forth in this section 7.3, all Bid prices and discounts shall be firm for the original Price Agreement period. Changes in Bid prices or discounts can be considered by the Agency, only at the time of renewal (if any). Agency may use the Consumer Price Index, West Region (CPI) for the previous year preceding the renewal date, as a basis for accepting or rejecting price increases. Agency may consider price increases that exceed that CPI, based on conditions that may increase the cost of planting a particular unit. These factors include but are not limited to:

Difficult access, steep or difficult terrain, or longer travel distance to units. Agency reserves the right in its sole discretion to accept or reject requests price increases for units that exceed the CPI increase under this exception. Contractor shall submit all information regarding proposed price changes to the Agency, in writing, prior to then-applicable Price Agreement termination date.

Proposed price changes must be accompanied by documentation supporting such increases (cost increases, market increases, or other supporting factors). The Agency reserves the right to accept or reject any proposed price changes, in the best interest of the State. If the proposed price or discount changes are accepted, they shall become effective on the first day of the Price Agreement renewal period.

The Agency shall be given the immediate benefit of any price decrease. The contractor shall promptly notify the Agency of the amount and effective date of each decrease. This decrease shall apply to orders placed on or after the effective date of the decrease. Should such decreased prices again increase during the term of the Price Agreement, including the extension, the Agency shall honor the increase, but only within the limits of the pricing that was in effect prior to the price decrease, if acceptable documentation verifying the increase is submitted to the Agency. The Agency shall determine what constitutes acceptable documentation.

7.4. RESERVED

7.5. RESERVED.

7.6. ESTIMATED QUANTITIES:

Any quantities listed within this Price Agreement or the ITB are approximate.

7.7. CONTRACTOR CONTACT PERSONS:

Contractor shall designate one or more Person(s) responsible for Contractor's work under this Price Agreement. The contractor shall provide to the Agency the names, addresses, and telephone numbers of such person(s), and shall always keep this information current. Should contact such Person(s) require long distance calls, the Agency reserves the right to call collect.

7.8. CHANGE IN SPECIFICATIONS:

The contractor shall notify the Agency at any time that justified changes or modifications in the performance specifications would result in improved Services.

7.9. ROAD ACCESS AND MAINTENANCE.

When Contractor is required to use State Forest roads for access to and within Units, Contractor shall take measures to prevent damage to the road and shall perform any minor maintenance necessary to protect the road from surface drainage. This work will be limited to removing small rocks or soil that has moved on to the road. This type of maintenance will be accomplished by hand using a shovel. However, the State will accept responsibility for any general maintenance where tractor work or machine grading is required. In case of damage by others which impairs or prevents access by Contractor, State will do one or more of the following, in State's discretion: (1) arrange for repair work if feasible, (2) arrange with Contractor for alternate work at the same pay rate, or (3) cancel that portion of the work affected by lack of access.

7.10. PERSONNEL:

Contractor shall provide personnel to work under this Price Agreement who are professionally trained, licensed, and qualified for work of this type and shall have the minimum ability and experience required for this work. The Agency reserves the right to refuse to accept Services from any personnel deemed by the Agency to be unqualified, disorderly, or otherwise unable to perform assigned work. The Contractor shall provide evidence of qualifications for any personnel performing work under this Price Agreement upon request by the Agency.

Experienced, qualified foreman/supervisor are essential to satisfactory performance of the Work. ODF may consider lack of competent and capable foreman/supervision as grounds to terminate this Price Agreement. An experienced, qualified foreman/supervisor should have approximately two (2) years of experience doing tree planting and one (1) year experience supervising crews doing forestry type work. ODF reserves the right to determine supervisory competence. The foreman/supervisor must be able to communicate fluently in English and in any language that crewmembers use to communicate.

7.11. PERFORMANCE STANDARDS AND PROVISIONS:

Contractor shall perform all Services required by this Price Agreement within the time specified.

All Services shall be performed in the most highly professional manner, and in accordance with the utmost industry standards.

Unless the means or methods of performing a task are specified elsewhere in this Price Agreement, Contractor shall employ methods that are generally accepted and used by the industry.

Failure to meet the performance requirements of this Price Agreement shall constitute breach of Price Agreement.

7.12. FIRE RESPONSIBILITY:

The Contractor shall comply with all Oregon State Fire laws and rules affecting the Price Agreement area. Fire control costs resulting from the Contractor's negligence shall be the responsibility of the Contractor in accordance with Oregon State Fire Laws and rules.

7.13. LICENSES AND PERMITS:

The Contractor shall, without cost to Agency, obtain and continue for the Price Agreement period, all licenses and permits required to comply with laws and regulations which pertain to the Price Agreement area.

Contractors must possess a valid Forest Labor Contractor License with a forest category endorsement issued by the Oregon Bureau of Labor and Industries during the entire term of the Price Agreement, including any extensions.

7.14. MATERIAL SAFETY DATA SHEETS AND SAFETY:

Safety precautions are a high priority. Contractors shall safeguard all public and private property surrounding the work area. The contractor shall protect the building structure, occupants, and nearby pedestrians. Contractors shall take all precautions to protect employees who complete the work.

7.15. ITEMS THAT WILL BE REIMBURSED:

None.

7.16. 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 Price Agreement and is an individual through whom Contractor shall provide to Agency the expertise, experience, judgment, and personal attention required to perform Services (“Key Person”). Each of the following is a Key Person under this Price Agreement:

Non-Working Tree Planting Foreman: Provides day to day supervision of tree planting services including tree transportation from tree cooler to planting site, care of seedlings during transportation and storage on site, and all aspects of tree planting. Responsibilities are directed to supervision and not actual tree planting.

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

7.17. INSPECTION AND CERTIFICATION:

Before certifying work as acceptable, ODF will inspect planted areas to verify compliance with Price Agreement specifications, including but not limited to specific requirements set forth in section 1.10 in Exhibit A (Statement of Work). Each planting unit will be evaluated separately by establishing enough plots to sample a minimum of one percent of the area. ODF reserves the right to vary the frequency of inspections and may elect to conduct daily inspections for the duration of this Price Agreement. ODF will notify the Contractor when inspections are made so that Contractor may observe inspection work, if desired. Certification of acceptable work will be on the basis of a planting unit. ODF will report unacceptable planting discovered during inspection to Contractor as soon as feasible.

SIGNATURE OF CONTRACTOR’S AUTHORIZED REPRESENTATIVE.

THIS PRICE AGREEMENT MUST BE SIGNED BY AN AUTHORIZED REPRESENTATIVE OF

CONTRACTOR. Contractor (print Company Name): Fremont Forest systems, Inc

Address: PO Box 339

City and State and Zip: Independence, OR 97351

Authorized Signature:

By (print name):

Title:

Date Contact Telephone Number: ( )

Contact E-Mail Address: _______________________________________________________

SIGNATURE OF STATE’S AUTHORIZED REPRESENTATIVE.

State of Oregon, acting by and through, the Oregon Department of Forestry, Authorized Signature: ________________________________________________________

By (print name): _____________________________________________________________

Title: ______________________________________________________________________ Date

Agency Contact Person (Type or Print): ___________________________________________

Contact Telephone Number: (______) ____________________________________________

E-Mail Address: ______________________________________________________________

EXHIBIT A

STATEMENT OF WORK

SECTION 1: WORK TO BE DONE

The Contractor shall furnish all the following specified tree planting services including but not limited to planting labor, supervision, transportation, equipment, and materials needed to complete the following Services (“the Services”):

1.1.1 WORK CREW. The contractor shall provide a minimum of one crew daily for planting. Each crew(s) shall consist of 10 to 15 planters not including the foreman/supervisor.

Each crew(s) provided shall be supervised by an experienced, non-planting foreman/supervisor that can communicate in English and the language spoken by the planters. Contractor shall not change the number or size of crew(s), unless approved by ODF. Foreman/supervisor shall be designated by Contractor and shall work as foreman/supervisor for the duration of the Price Agreement, unless otherwise approved by ODF. The foreman/supervisor will be responsible for the supervision of the planting and overall quality. The foreman/supervisor shall keep the crew working together unless approved by ODF.

1.2 Planting consists of locating acceptable microsites according to the required spacing intervals (see Table I) and planting seedlings in each acceptable microsite.

1.2.1 Seedlings must be planted according to the requirements in Section 2 "Planting Methods" in order to count the number of properly planted seedlings. Payment will be based on planting quality, which is the number of properly planted seedlings divided by the total number of seedlings. The acceptable range of seedlings per acre will be based on the total seedlings planted per acre divided by the number of plantable spots per acre. The goal is to plant 90- 105% of the plantable spots within a planting unit. Non-plantable areas are defined in the Section titled "Planting Methods."

1.2.2 Approximately 53% bare root vs. 47% plug seedlings have been sown for the 2024 planting season. Individual planting prescriptions will be identified in summer after reconnaissance of each unit has been completed.

1.2.3 The location of each unit is shown on the maps provided by ODF. Specific planting details for each unit are provided in Table II. The acreage of treated areas within each unit was determined using a GPS unit and/or mapping in ArcGis software. Contractor may also GPS the unit to confirm acreage.

1.2.4 ODF will determine the order in which units will be planted, depending upon soil condition, weather conditions, available planting stock, and supplies. ODF reserves the right to specify the location by which species and/or stock type are planted within a unit when multiple species and/or stock types are planted.

1.2.5 ODF reserves the right to reduce or to increase the acreage to be planted by an amount that does not exceed 25 percent of the total acreage specified in Table II. No increase or decrease under this Section will change the Compensation Unit Price, and ODF will pay the Contractor no more than the Compensation Unit Price for the number of acres actually planted by the Contractor. In addition, ODF reserves the right to reduce the acreage by more than 25 percent if, in ODF’s opinion, conditions exist which prohibit the proper planting of an area.

1.3 WORK PERIOD. After the Notice to Proceed is issued, either verbally or in writing by ODF, work shall commence no later than January 8, 2024, unless otherwise approved by ODF. The contractor shall schedule a pre-work meeting with ODF prior to the commencement of operations. Contractor shall notify the district office of the ODF before the start of operations.

Work will be continuous and adhere to the Production Schedule unless weather conditions or circumstances beyond Contractor's control prevent working. Any suspension of work of more than one day must be approved in writing by ODF.

1.3.1 Work will not be scheduled on weekends or any ODF holiday or furlough, unless approved by ODF.

1.3.2 All work shall be completed by April 30, 2024, unless extended by ODF.

1.4 PRODUCTION SCHEDULE. The production schedule will be based primarily on availability of the units to be planted. The contractor shall be responsible for completing the planting units which are awarded.

The Contractor must meet the following performance levels:

50 % of the project complete by February 15, and 90 % of the project is complete by March 15.

1.4.1 ODF anticipates that these units will be available in January, February, and March.

Contractor shall complete all units no later than April 30, 2024, unless extended by ODF. The goal will be to have as many units planted as possible when weather conditions permit.

Therefore, Contractor shall supply a crew for every workday until the project ends unless otherwise approved by ODF. ODF will give Contractor 24 hours’ notice that one or two units are available for planting under this Price Agreement.

1.4.2 Contractor understands and expressly agrees that if the Contractor cannot provide the required number of personnel within 24 hours, then ODF, at its option, may at its discretion:

a. Require Contractor to submit a Written Plan which describes the action to be taken to correct deficiencies. This plan must be approved by ODF.

b. If the Written Plan is not satisfactory to ODF, or action taken by Contractor is not sufficient to correct deficiencies, ODF may:

1. Terminate the Price Agreement as provided for in Section 3.M of the Price Agreement; or

2. Remove work from Work Area.

1.5 RESERVED.

1.6 PLANTING STOCK. ODF will furnish the seedlings to be planted. Acres and target number of trees per acre for each planting unit are shown on Table II.

The following stock types may be planted:

a. 412A-415A/Styro 10 plug seedlings

b. 512A-515A/Styro 15 plug seedlings

c. 615A/Styro 20 plug seedlings

d. Plug + 1 bare root seedlings

e. 1-1 bare…