RFPAttA-Sample Contract_SOD Mechanical Eradication~1.pdf

RFP S-62900-00007727 – 2023 Sudden Oak Death Mechanical Eradication Services Att A

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 Oregon Department of Forestry ("Agency"), and________________________(“Contractor”). Agency and Contractor shall collectively be referred to as 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. This Contract expires on September 1st, 2024 and can be renewed annually not to exceed five (5) years.

The Agency issued Request for Proposal (RFP) #S-62900-00007727 seeking proposals from qualified and responsible Proposers to provide the Services described in this Contract. Contractor submitted a Proposal in response to the RFP offering to provide the Services pursuant to the terms and conditions set forth herein. The Agency desires to award the Contract to Contractor.

The Agency has authority to enter into this Contract for the procurement of trade services for Sudden Oak Death Eradication Services, pursuant to ORS 279A.075, 279A.140, and a Delegation of Authority from the Oregon Department of Administrative Services Delegation Number: DAS Delegation Agreement DASOBO-00021313, and is authorized to enter into the resulting contract for this type of work under ORS 530.050. Contract renewals may be dependent on receipt of additional delegated authority from the Department of Administrative Services (DAS).

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 State of Oregon, acting by and through its Department of Forestry, issues this Contract for work relating to the eradication of the Sudden Oak Death (SOD) pathogen near Port Orford, Oregon. The Contract Area refers to the area of current infection and concern by the ODF pathologist currently and in the foreseeable future near Port Orford, Curry County, Oregon. Occurrences of infection outside this area are possible during the life of this contract (see Map, Exhibit D). Within this area, Contract work will be conducted on parcels of private, state, or federal land. Agency estimates that Contractor will treat 0 - 50 acres for SOD Eradication in the first year. The number of acres treated for SOD Eradication in potential renewal years will be determined by Agency based on need. Most work areas are within 20 air miles of Port Orford, OR. Additional sites may be added during the Contract period.

B. REQUIRED SERVICES, DELIVERABLES, DELIVERY SCHEDULE, ACCEPTANCE CRITERIA AND

PROCESS. Contractor shall perform Services as described in the Statement of Work (Exhibit A).

C. SPECIAL REQUIREMENTS. See Section 7, Special Contract Terms and Conditions.

2. COMPENSATION.

A. METHOD OF AND BASIS FOR PAYMENT FOR SERVICES.

The Agency shall pay Contractor monthly progress payments in the amounts described in Exhibit B, and as provided for in this section. The Agency will inspect the Contractor’s work and make payment for only the work which is accepted, pursuant to Exhibit A.

B. EXPENSE REIMBURSEMENT

The Agency will not reimburse Contractor for any expenses under this Contract with the exception of the cost of portable toilets (see section 7.12), plastic to cover piles, or burn fuel (see section 7.13).

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 Contract. Contractor is not entitled to receive payment under this Agreement from any part of Oregon state government other than Agency.

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. Available Funding; Payments: The State of Oregon’s payment obligations under this Contract 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 Contract. Nothing in this Contract 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.

iv. Agency will only pay for completed Services that have been accepted by Agency, pursuant to Exhibit A.

D. INVOICES.

i. Contractor shall send invoices to Agency no more often than weekly for Services completed and accepted by Agency in accordance with Exhibit A of this Contract. Contractor shall include in each invoice:

a. The Contract number;

A detailed description of Services performed, including the name or names of the individuals who performed Services and 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;

Payment to the Contractor is based on the actual hours worked by the Contractor plus the cost of plastic for piles or burn fuel (plus 5% handling fee).

b. Itemization and explanation of all expenses for which Contractor claims reimbursement authorized under this Contract;

c. The total amount due and the payment address.

ii. Contractor shall send all invoices to Agency’s Contract Administrator at the address specified in section

7.5 or to any other address as Agency may indicate in writing to Contractor. Contractor’s claims to Agency for overdue payments on invoices are subject to ORS 293.462.

iii. Summary of Work Completed” form (Exhibit E) must be completed and included with all billings.

3. GENERAL TERMS AND CONDITIONS.

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

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

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 Contract.

http://www.irs.gov/

ii. New Works. All intellectual property rights in the Work Product created by Contractor under this Contract shall be the exclusive property of Agency. All Work Product authored by Contractor under this Contract 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 any and all of its rights, title, and interest in such Work Product. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments reasonably necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to such Work Product created under this Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

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 be independently licensed by 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 Agency. If Agency approves the use of Open Source Elements, Contractor shall:

a. Notify 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. All express and implied warranties that are applicable to goods under ORS Chapter 72 apply to the Goods delivered under this Contract. Contractor represents and further warrants that:

a. Contractor has the authority to enter into and perform in accordance with this Contract and that this Contract, 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 Contract, qualified, professionally competent, and duly licensed to perform Services; and

d. When used as authorized by this Contract, 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 Contract.

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 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 Contract or to Contractor’s obligations under this Contract, as those laws, regulations and ordinances may be adopted or Amended from time to time.

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)).

D. AMENDMENTS; WAIVER.

This Contract may be amended to the extent permitted by applicable statutes and administrative rules. 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 State of that or any other provision.

E. TIME IS OF THE ESSENCE.

Contractor agrees that time is of the essence in the performance of this Contract.

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 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.

G. RESERVED.

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 Contract. 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 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.

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 CONTRACT.

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 CONTRACT

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 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 CONTRACT, 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 CONTRACT 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 CONTRACT, 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 Contract if:

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

b. Contractor 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 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 Contract, fails to perform its obligations under this Contract 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.

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.

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 Contract, State shall be entitled to recover for any and all damages suffered as the result of Contractor's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages. State may, at Agency’s option, pursue any or all of the remedies available under this Contract and at law or in equity, including, but not limited to:

a. Termination of this Contract 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.

These remedies are cumulative to the extent the remedies are not inconsistent, and 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 Contract was terminated pursuant to section 3.M.ii.a.

ii. Contractor’s Remedies. If Agency terminates this Contract for convenience under section 3.M.ii.a, or if Agency is in breach under section 3.K.ii and whether or not Contractor elects to exercise its right to terminate this Contract 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 Contract.

M. TERMINATION.

i. MUTUAL CONSENT. This Contract may be terminated at any time by mutual Written consent of the Parties.

ii. Agency:

a. Agency may, at its sole discretion, terminate this Contract for its convenience upon 30 days Written notice by Agency to Contractor.

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:

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

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 Contract 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 Contract as directed by Agency in any Written notice of termination delivered to Contractor under this section 3.M.ii.

iii. Contractor: 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 to section 3.K.ii.

N. 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 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 Contract shall be in writing and addressed to the party's authorized representative. For State, the authorized representative is the Agency contact person identified in section

7. Contractor's authorized representative is the contact person identified in section 6. Mailed notices are deemed received five (5) days after the date mailed, 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. Emailed notices are deemed received upon successful transmission to the designated email address.

P. GOVERNING LAW.

The Contract is governed by and construed in accordance with the laws of State, without regard to principles of conflicts of laws. To the extent not modified by the terms of this Contract, the Uniform Commercial Code as codified in ORS Chapters 71 and 72 governs the Goods sold under this Contract.

Q. VENUE; CONSENT TO JURISDICTION.

Any claim, action, suit or proceeding (collectively, “Proceeding”) between State 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 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 Services required under this Contract 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 all sections of this Contract. Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

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

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

S. THIRD PARTY BENEFICIARIES.

State 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. Agency is an intended beneficiary of the terms of this Contract.

T. 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.

U. 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.

V. 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.

W. 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 2.C, 3.A, 3.B, 3.G, 3.I, 3.J, 3.L, 3.N, 3.P, 3.Q, 3.S, 3.W and 4.

X. ORDER OF PRECEDENCE.

The terms and conditions set out in this Contract are the Standard Terms and Conditions for State of Oregon service contracts. Section 7, contains Special Terms and Conditions also applicable to this Contract. Whenever possible, all terms and conditions of this Contract are to be harmonized. In the event of any other conflict, the Contract will be interpreted in the following order of precedence: (i) the Special Terms and Conditions in Section 7, (ii) these Standard Contract Terms and Conditions in Section 3, and (iii) the remaining portions of the Contract.

4. INSURANCE

Contractor shall obtain the insurance required under Exhibit C prior to performing under this Contract and shall maintain the required insurance throughout the duration of this Contract and all warranty periods. Contractor shall provide Agency proof of insurance.

5. RESERVED

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 is authorized to act on behalf of Contractor and that Contractor is, to the best of the undersigned’s knowledge, not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 401.792 to 401.816 (Tax For Emergency Communications), 118 (Inheritance Tax), 314 (Income Tax), 316 (Personal Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax), 320 (Amusement Device and Transient Lodging Taxes), 321 (Timber and Forestland Tax), 323 (Cigarettes and Tobacco Products Tax), and the elderly rental assistance program under ORS 310.630 to 310.706; and any local taxes administered by the Department of Revenue under ORS 305.620.

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 is bound by and will comply with all requirements, terms and conditions contained in this Contract; and

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 Company Name): _______________________________________________

Address: ___________________________________________________________________

City and State and Zip: ________________________________________________________

Authorized Signature: __________________________________________________________

By (print name): ______________________________________________________________

Title: _______________________________________________________________________

Date: _______________________________________________________________________

FEIN: _______________________________________________________________________

Contact Person: ______________________________________________________________ http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf

Contact Telephone Number: (______) _____________________________________________

OregonBuys Vendor #: _________________________________________________________

Contact E-Mail Address: ________________________________________________________

SIGNATURE OF AGENCY REPRESENTATIVE.

State of Oregon acting by and through the Department of Forestry

Authorized Signature: __________________________________________________________________

By (print name): ______________________________________________________________________

Title: _______________________________________________________________________________

Date: _______________________________________________________________________________

Contact Telephone Number: (______) _____________________________________________________

Fax Number: (______)_________________________________________________________________

E-Mail Address: ______________________________________________________________________

7. SPECIAL CONTRACT TERMS AND CONDITIONS

7.1. CONTRACT PERIOD: From date it has been executed by all Parties and all required State of Oregon approvals have been obtained, until September 1st, 2024.

7.2. EXTENSIONS:

The Agency shall notify Contractor in writing of the State's intent, if any, to extend the Contract ("Renewal Notice") at least thirty (30) days prior to the expiration of the then current term. If Contractor consents to the extension, it shall sign and return the Renewal Notice to the Agency within the time period specified therein. The Contract may be renewed for a total duration not to exceed five (5) years. If the Contractor does not consent, the Contract shall expire according to its terms, unless earlier terminated.

7.3. PRICE ADJUSTMENTS:

Except as set forth in this section 7.3, all Proposal prices and discounts shall be firm for the initial Contract period.

Changes in Proposal 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.

Exception: Agency may consider price increases that exceed that CPI based on conditions that may increase the cost of providing services. 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 Contract 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 Contract renewal period.

The Agency shall be given the immediate benefit of any price decrease. 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 Contract, including extensions, 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.

Travel and Other Expenses

All travel, per diem, transportation, equipment fuel/oil, and other expenses are included in the hourly rates stated in Exhibit B: Compensation. Travel time and expenses to and from job site will not be paid by Agency. No move-in, move-out, or demobilization costs will be paid by Agency. Payment will be made only for hours worked on the job site.

ALL BILLINGS SHALL BE DIRECTED TO:

Sudden Oak Death Eradication Services Contract Administrator Attn: Randy Wiese Oregon Department of Forestry 415 Redwood Street Brookings, OR 97415

7.4. ESTIMATED QUANTITIES:

Any quantities listed within the RFP were approximate and were intended for use only on the evaluation of proposals.

Actual purchases may range from zero to more than that listed.

7.5. CONTACT PERSONS:

Contractor shall designate one or more person(s) responsible for Contractor’s work under this Contract. Contractor shall provide to State the names, addresses, and telephone numbers of such person(s), and shall keep this information current at all times.

7.6. CHANGE IN SPECIFICATIONS:

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

7.7. PERSONNEL:

Contractor shall provide personnel to work under this Contract who are properly 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 Contract upon request by the Agency.

7.8. PERFORMANCE STANDARDS AND PROVISIONS

Contractor shall perform all Services required by this Contract 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 Contract, Contractor shall employ methods that are generally accepted and used by the industry. Failure to meet the performance requirements of this Contract shall constitute breach of Contract.

7.9. FIRE RESPONSIBILITY

The Contractor shall comply with all Oregon State Fire laws and rules affecting the Contract 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.

7.10. LICENSES AND PERMITS

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

Farm/Forest Labor Contractor License: The Contractor must possess a valid Farm/Forest Labor Contractor License issued by the Oregon Bureau of Labor and Industries.

7.11. SAFETY DATA SHEETS AND SAFETY:

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

The Contractor shall inform and train its own employees on the use of Safety Data Sheets.

The State shall inform the Contractor of any potential hazards created by chemicals that the State uses, which may impact the Contractor or its employees. The State shall provide the Contractor with Safety Data Sheets for products stored or used by the State in the work area designated in this Contract. The State will provide the Contractor with the Safety Data Sheets at the execution of this Contract.

7.12. PORTABLE TOILETS

The Contractor is responsible for providing portable toilets for workers when deemed necessary by the Agency.

The State will reimburse the Contractor for the actual rental cost of the portable toilets.

7.13.PLASTIC AND BURN FUEL

The Contractor is responsible for providing plastic for piles as directed, and/or burn fuel. The State will reimburse the Contractor for the actual cost of the required supplies plus a 5% handling fee.

EXHBIT A

STATEMENT OF WORK

1. GENERAL PROVISIONS:

The Contractor shall furnish all qualified personnel, labor, supervision, services, materials, equipment, tools, supplies, transportation and other essential items in conformance with the specifications, terms and conditions as outlined herein. Crew size required to complete the work will range from 1 to 3 people, depending on the specific project to be completed.

2. PROJECT DESCRIPTION:

The project involves the cutting, piling, and burning of trees and shrubs typically within 20 air miles of Port Orford, Oregon, as required by this Contract. Occurrences of infection outside this area are possible during the life of this contract.

3. STATEMENT OF WORK:

3.1. Location of Contract Work Area

The Contract Area refers to the Southern Oregon Coast, generally between Brookings and Port Orford, Oregon. Within this area, Contract work will be conducted on parcels of private, state, or federal land. Agency estimates that Contractor will treat 0 - 50 acres for SOD Eradication in the first year. The number of acres treated for SOD Eradication in potential renewal years will be determined by Agency based on need.

Additional sites may be added during the Contract period. Boundaries and acreage of work sites will be determined by Agency and indicated on maps and aerial photos.

3.2. Reserved

3.3. Contract Work to be completed

The Contractor will complete work on all work sites designated to the Contractor by the Agency. The Agency will obtain permission from landowners to allow the work to be performed.

3.3.1 Contract Work Period

Through written notification (“Ordering Instrument”), the Agency will direct the Contractor to begin operations as surveys detect new SOD-infested areas and as funds are available. The Contractor shall begin work within 10 calendar days of receiving the Ordering Instrument from Agency, as described in section 3.3.5 below, and will end on or before September 1st, 2024. Because this work is part of an eradication effort, some of the work is time sensitive and must be completed promptly as directed by the Agency.

3.3.2 Services Performed by the Contractor include some or all of the following:

A. Mechanical destruction (cutting and burning) of sprouts, shrubs, and small trees;

B. Cutting, piling, and burning all Sudden Oak Death host vegetation within sites designated by the Agency;

and

C. Covering piles with 6’ by 10’ piece of 3 mil plastic as directed by Agency. Pieces of woody material shall be placed on top of the plastic to keep it from blowing away.

Procedures are detailed in Item 3.3.10 – Treatment specifications.

Contractor shall complete the Services under this Contract with the following equipment, which meets the listed criteria:

Item 1. Excavator or track hoe, with thumb – 28,000 to 35,000 lbs.

Item 2. Chain Saw operator

Item 3. *Optional* Skidder (track or rubber-tire) – 28,000 to 34,000 lbs., with grapple and drum-line

3.3.3 Reserved

3.3.4 Reserved

3.3.5. Notification of Available Work; Delivery Schedule

The Contractor agrees to the following delivery schedule for the work mentioned in the Statement of Work:

Agency will notify Contractor by telephone of the site name and location of the available work, the amount and type of work involved, and the time period in which the Agency requires the work to be completed.

Following that telephone notification, the Agency will send an email (“Ordering Instrument”) to the Contractor confirming the site name, site location, amount and type of work, time period in which the Agency requires the work to be completed, and a map of the treatment area. The Contractor must respond promptly, in writing by e-mail, to the Agency’s Ordering Instrument and must indicate the Contractor’s intention to complete the work as described in the Ordering Instrument. Neither the Ordering Instrument nor the Contractor’s response may be construed as amending or modifying any Contract provisions, or adding any Contract provisions, other than the site name, site location, amount and type of work, and time period in which the work must be completed.

Contractor shall begin treatment of the specified SOD sites within 10 calendar days of the issuance of the Ordering Instrument, and must complete treatment within the time period required by the Ordering Instrument, unless wildfire risk dictates otherwise. The Contractor may conduct tree falling throughout the Contract period, with exact dates to be specified by the Agency as additional SOD sites are discovered.

While monitoring work in progress, the Agency may negotiate adjustments to the delivery schedule, and the size and location of treatment area.

3.3.6. Services Provided by Agency

The Agency will provide maps or aerial photos of the work sites and will obtain permission from landowners for work to proceed. The Agency will also assist the Contractor in locating work sites.

3.3.7. Work Area Access

The Agency will be responsible for obtaining permission from landowners to allow the Contractor to complete work on the work areas. The Contractor must obtain any and all permits, agreements, or other requirements for access over lands, roads, trails or streams needed to access the work areas, regardless of the ownership of the roads, trails, or adjacent properties. Either the Agency or landowners will provide the Contractor with keys to locked gates on forest roads.

If road access to the Work Area is restricted by weather, logging, or any other condition, the Contractor must find other means of access to complete the work, and must secure any and all permits, agreements or other requirements for such access. The Contractor is responsible for repairing all damage to roads caused by the Contractor.

3.3.8. Interruption of Work

Agency may stop or temporarily suspend work at any time because of weather, risk of fire, legal proceedings, availability of funds, or other factors.

3.3.9. Inspection of Work Performed; Acceptance of Work

In order to receive payment, the Contractor's completed work must meet the criteria for acceptance as determined by the Agency's Contract Administrator or representative thereof. The Agency may delete or add tree species, or woody host vegetation species requiring treatment on specific sites.

Acceptance criteria are as follows:

A. The Contractor must cut all woody host vegetation (tanoak, rhododendron, myrtlewood, evergreen huckleberry, and other species specified by the Agency) as low to the ground as possible. The Contractor must then pile and burn the woody host vegetation after it is cut, including small branches and foliage.

B. The Contractor must cover piles with 6’ by 10’ piece of 3 mil plastic as directed by Agency. The Contractor shall place pieces of woody material on top of the plastic to keep it from blowing away.

After inspecting the Contractor’s completed work, the Agency will notify the Contractor of any deficiencies within 5 working days. The Agency will allow the Contractor 5 working days to correct any deficiencies.

3.3.10. Treatment specifications

A. Cutting and burning host trees and shrubs: Cut ALL host vegetation as low to ground as possible. Host vegetation includes tanoak, evergreen huckleberry, myrtlewood, and rhododendron (Agency may add or delete species from this list). Pile and burn all branches, foliage and bole sections smaller than approx. 6“ in diameter.