RFQ 3372 Snowy Butte Heritage Survey.pdf

OREGON DEPARTMENT OF FORESTRY (ODF)

SNOWY BUTTE HERITAGE SURVEY REQUEST FOR QUOTE (RFQ)

ODF Procurement and Contracts Services February 2014 Page 1 of 2

ISSUE DATE: 6/6/2022

RFQ #: S-62900-00003372 RFQ DUE DATE & TIME: 6/20/2022 5:00 PM

DELIVER TO: REQUESTED BY / RETURN QUOTE TO:

Unit/District Name:

Oregon Dept. Of Forestry Grants Pass Unit SWO District

NAME: Chris Rudd

ADDRESS: 5375 Monument Drive ADDRESS: 5375 Monument Drive CITY, STATE, ZIP: Grants Pass, OR 97526 CITY, STATE, ZIP: Grants Pass, OR 97526

REQUIRED DELIVERY

DATE AND TIME:

05/16/2022 1700 EMAIL: Chris.c.rudd@odf.oregon.gov

TELEPHONE:

FAX #:

541-660-0634 N/A

ITEM DESCRIPTION QTY UNIT UNIT

PRICE

TOTAL

PRICE

1 Pre-work Discussion, Monthly Update, Final Review 1 Notes

2 Heritage Surveys – Low Intensity Level (10% Coverage) Snowy Blk 1 70 Acres

3 Heritage Surveys – Medium Intensity Level (50% Coverage) Snowy Blk

310 Acres

4 Heritage Surveys – High Intensity Level (100% Coverage) Snowy Blk 1 263 Acres

5 Heritage Surveys – Low Intensity Level (10% Coverage) Snowy Blk 2 145 Acres

6 Heritage Surveys – Medium Intensity Level (50% Coverage) Snowy Bk 2 262 Acres

7 Heritage Surveys – High Intensity Level (100% Coverage) Snowy Blk 2 236 Acres

8 Previous sites updates – site recording 10 Sites

9 Heritage Surveys Final Reports and GIS Data (1 for all acres surveyed) 1 Report

Total Acres Surveyed 1,286

Delivery is F.O.B. destination, prepaid and allowed. Shipping, freight and handling must be included in quoted prices. Additional costs for such are disallowed TOTAL

DELIVERY TIME AFTER RECEIPT OF ORDER: PRICES VALID THROUGH:

SPECIAL INSTRUCTIONS: VENDOR / CONTRACTOR INFORMATION:

1. Unless otherwise specified, all items quoted are to be new, unused and not remanufactured in any way.

2. Brand names are for the purpose of describing and establishing the characteristics desired and are not intended to limit or restrict competition. Quoters may submit quotes for substantially equivalent products unless the RFQ provides that a specific brand is necessary because of compatibility requirements, etc. All such brand substitutions shall be subject to approval by ODF.

3. Quoters must clearly identify all products quoted in detail.

4. Only documents issued as addenda by ODF serve to change the RFQ in any way.

5. ODF reserves the right to make the award by item, groups of items or entire quote, whichever is in the best interest of ODF.

6. ODF may reject any Quote not in compliance with the RFQ, attachments, and addenda, or if it is in the best interest of

ODF.

COMPANY:

ADDRESS:

CITY, STATE,

ZIP:

CONTACT

NAME:

E-MAIL:

TELEPHONE:

FAX:

VENDOR SIGNATURE:

By signature below the undersigned certifies that they are authorized to act on behalf of the quoter and will comply with all aspects of the quote herein.

SIGNATURE:

NAME:

TITLE:

This procurement is subject to the following State of Oregon Standard Terms and Conditions for:

Goods Services Purchase Order Software.

State of Oregon Terms and Conditions

1. DELIVERY: Deliveries will be F.O.B destination. Contractor shall pay all transportation and handling charges. Contractor is responsible and liable for loss or damage until final inspection and acceptance of the Goods.

Contractor remains liable for latent defects, fraud, and warranties.

2. INSPECTIONS: Agency may inspect and test the Goods and related Services (collectively, Goods). Agency may reject non‐conforming Goods and require Contractor to correct them without charge or deliver them at a reduced price, as negotiated. If Contractor does not cure any defects within a reasonable time, Agency may reject the Goods and cancel the PO in whole or in part. This paragraph does not affect or limit Agency's rights, including its rights under the Uniform Commercial Code, ORS chapter 72 (UCC).

3. PAYMENT: Agency shall pay Contractor within 30 days from (i) the date the Goods are delivered and accepted or (ii) the date the invoice is received, whichever is later. If Agency fails to pay within 45 days of such date, Contractor may assess overdue account charges up to a rate of 2/3% per month (8% APR) or the maximum rate allowed by law on the outstanding balance.

4. STATE PAYMENT OF CONTRACTOR CLAIMS: If Contractor does not pay promptly any claim that is due for Goods or Services furnished to the Contractor by any subcontractor in connection with this PO, the State may pay such claim and charge that payment against any payment due to the Contractor under this PO. The State’s payment of a claim does not relieve the Contractor or its surety, if any, from their obligations for any unpaid claims.

5. WARRANTIES: Contractor represents and warrants that the Goods are new, current, and fully warranted by the manufacturer. Delivered Goods will comply with specifications and be free from defects in labor, material and manufacture. All UCC implied and expressed warranties are incorporated in this PO. Contractor shall transfer all warranties to the State.

6. TERMINATION: (i) The parties may terminate this PO by mutual agreement. (ii) Agency may terminate this PO at any time with written notice to Contractor. Upon receipt of the written notice, Contractor shall stop performance, and Agency shall pay Contractor for Goods delivered and accepted. (iii) Agency may terminate this PO at any time if Agency fails to receive funding, appropriations, or other expenditure authority. (iv) If Contractor breaches any PO provision or is declared insolvent, Agency may terminate this PO for cause with written notice to Contractor, and Contractor shall be liable for all incidental and consequential damages resulting from its breach, including all damages as provided in the UCC.

7. HOLD HARMLESS: Contractor shall indemnify, defend and hold harmless the State and it agencies, their divisions, officers, employees, and agents, from all claims, suits or actions of any nature arising out of or related to the activities of Contractor, its officers, subcontractors, agents or employees under this PO.

8. GOVERNING LAW, JURISDICTION, VENUE: This PO is governed by Oregon law, without resort to any other jurisdiction's laws. Any claim, action, suit, or proceeding between the State and the Contractor that relates to this PO (Claim) must be heard exclusively in the Circuit Court of Marion County for the State of Oregon. If the Claim must be brought in a federal forum, then it must be heard exclusively in the US District Court for the District of Oregon.

Contractor consents to the in personam jurisdiction of these courts. Neither this Section nor any other provision of this PO is a waiver by the State of any form of defense, sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the US Constitution, or other immunity, from any Claim or from the jurisdiction of any court.

9. FORCE MAJEURE: Neither party is responsible for delay or default caused by an event beyond its reasonable control. Agency may terminate this PO without liability to Contractor upon written notice after determining the delay or default reasonably prevents performance of this PO.

10. ASSIGNMENT/SUBCONTRACT/SUCCESSORS: Contractor shall not assign, transfer, or subcontract rights (Subcontract) or delegate responsibilities under this PO in whole or in part, without the prior written approval of Agency. This PO’s provisions are binding upon and inure to the benefit of the parties to the PO and their respective successors and assigns.

11. ACCESS TO RECORDS: Contractor shall maintain all accounting records relating to this PO according to GAAP and any other records relating to Contractor’s performance (“Records”) for six (6) years from termination or as otherwise required. Contractor shall grant the State and its agencies, the Secretary of State Audits Division, the federal government, and their duly authorized representative’s access to the Records, including reviewing, auditing, copying, and making transcripts.

12. COMPLIANCE WITH APPLICABLE LAWS: Contractor shall comply with all applicable federal, state and local laws, regulations, executive orders, and ordinances, as amended (Rules), including: (i) Titles VI and VII of Civil Rights Act of 1964; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990; (iv) Executive Order 11246; (v) The Age Discrimination in Employment Act of 1967, and the Age Discrimination Act of 1975; (vi) The Vietnam Era Veterans’ Readjustment Assistance Act of 1974; (vii) ORS Chapter 659; (viii) ORS 279B.020, , and 279B.270; (ix) all other applicable requirements of federal and state civil rights and rehabilitation statues, rules and regulations; (x) all federal and state laws governing the handling, processing, packaging, storage, labeling, and delivery of food products; and (xi) all regulations and administrative rules established pursuant to the foregoing laws. Agency’s performance is conditioned upon Contractor’s compliance with, 279B.220, 279B.225, 279B.230, and 279B.235, as applicable. All applicable Rules are incorporated by reference in this PO.

13. WORKERS' COMPENSATION: Contractor shall comply with ORS 656.017 and provide the required workers’ compensation coverage, unless exempt under ORS 656.126(2). Contractor shall ensure that its Subcontractors, if any, comply with these requirements.

14. SAFETY AND HEALTH REQUIREMENTS: Contractor represents and warrants that the Goods comply with all federal and Oregon safety and health requirements.

15. MATERIAL SAFETY DATA SHEET: Contractor shall provide Agency with a Material Safety Data Sheet for any Goods which may release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use (OAR 437‐ 002‐0360 and 29 CFR 1910.1020). Contractor shall label, tag or mark such Goods.

16. RECYCLABLE PRODUCTS: Unless otherwise required , Contractor shall use recycled and recyclable products to the maximum extent economically feasible in the performance of the PO. These products shall include recycled paper, recycled PETE products, other recycled products (ORS 279A.010 (1)(gg),(hh),(ii)), and other recycled plastic resin products.

17. AMENDMENTS: All amendments to this PO must be in writing, signed by Agency.

18. SEVERABILITY: If a court of competent jurisdiction declares any provision of this PO to be invalid, the other provisions and the rights and obligations of the parties remain in effect.

19. WAIVER: Agency’s failure to enforce any provision of this PO is not a waiver or relinquishment by Agency of its rights to such performance in the future or to enforce any other provisions.

20. AWARD TO FOREIGN CONTRACTOR: If Contractor is not registered to do business or has no office in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this PO. Agency may withhold final payment under this PO until Contractor has met this requirement.

21. TAX CERTIFICATION: Contractor hereby certifies under penalty of perjury: (a) the number shown on this form is the correct Federal Employer Identification Number; (b) it is not subject to backup withholding because (i) it is exempt from backup withholding, (ii) it has not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that it is no longer subject to backup withholding; and (c) it is not in violation of any Oregon tax laws.

Oregon Kate Brown, Governor

Request for Quote for Rogue-River Siskiyou National Forest, Forest-wide GNA Heritage Resource Data Collection Project Information

The State of Oregon, acting by and through the Department of Forestry (“Agency”), is requesting a quote (RFQ) for services from your firm. The RFQ will be to collect heritage resource data for the Rogue-River Siskiyou National Forest, Forest-wide GNA Heritage Resource Data Collection project, located within several Ranger Districts around the Rogue-River Siskiyou National Forest (hereinafter referred to as “the project”). ODF and the U.S. Forest Service (“Forest Service” or “USFS”) anticipate that the project will be used to support preparation and development of NEPA documentation for various Good Neighbor Authority (GNA), and other restoration projects around the Forest. This RFQ for data collection will be necessary for use in Categorical Exclusion, Environmental Assessment, and Environmental Impact Statement determinations. The Forest Service will also perform data collection and analysis for other resources within the analysis area, including wildlife, botany, aquatics, and soils. The Forest Service will prepare the required Decision Memos and project files for the project sites. Bids solicited under this RFQ will be to collect pedestrian surveys for three probability levels Low (10% survey coverage), Medium (50% survey coverage), and High (100% survey coverage). Work under this project will be done within two survey areas that total 3,794 acres. All project work done under this RFQ must be completed and invoiced prior to January 31, 2023. All project work will be assigned by the Agency, and the Rogue-River Siskiyou National Forest (RRSNF) Heritage Program Manager (HPM). Weather may limit access in areas over 4,000 feet from December through April.

Department of Forestry Southwest Oregon District

Headquarters 5286 Table Rock Rd.

Central Point, OR 97502 Phone: (541) 664-3328

FAX: (541) 664-4340

Block 1 Survey Area APE = Area of Potential Effects

High (100%) 263 263

Medium (50%) 310 620

Low (10%) 70 701

643 1,584

Block 2 Survey Area APE = Area of Potential Effects

High (100%) 236 236

Medium (50%) 262 524

Low (10%) 145 1,450

643 2,210

Block 1 and 2 3,794 APE‐ Acres

Locations/Intensity Levels

Project work covered under this RFQ will include the Snowy Butte Cultural Survey Block 1 and 2 (a total of 3,794 acres in the APE) east of Butte Falls. All contracted services mentioned below will need to cover the full analysis area of each project site as determined by the RRSNF HPM. Inventory design for each unit will be determined by the RRSNF-HPM.

The first project unit to begin data collection in will be the Snowy Butte Block 1 site located east of Butte Falls and west of Willow Lake on the RRSNF in T35S, R3E, Sections 28, 29, 30, 32, 33, and 34; USGS 7.5’ Quads; Butte Falls, OR; Big Butte Springs, OR; Lake Creek, OR; and Willow Lake, OR. Willamette Meridian. The second block (Snowy Butte Block 2) is located within the High Cascades Ranger District of the RRSNF in T36S, R3E, Section 13 and T36S, R4E, Sections 07, 08, 18 and 19; USGS 7.5’ Quads: Mount McLoughlin, OR; Willow Lake, OR. Willamette Meridian. The nearest town to the units with lodging would be Shady Cove, Oregon approximately a 45-minute to a one-hour drive from the project sites. The stands are accessible by paved and graveled roads.

Vendor Staffing Requirements

Archeologist

The Principal Investigator must meet the Secretary of the Interior's Professional Qualification Standards as outlined in 36 CFR 61, which includes:

o A graduate degree in archeology, anthropology, or closely related field plus, o At least one year of full-time professional experience or equivalent specialized training in archeological research, administration, or management.

o At least four months of supervised field and analytic experience in general North

American archeology and demonstrated ability to carry research to completion.

o At least 6 months experience in archaeological surveys.

o Demonstrated competence in collecting, handling, analyzing, evaluating, and reporting archaeological data.

o Ability to obtain a valid Archeological Resource Protection Act (ARPA) or

Organic Act permit from the Rogue-River Siskiyou National Forest’s (RRSNF) Special Uses program.

The Crew Chief

The Crew Chief of each survey crew must have the following minimum qualifications:

o An undergraduate degree in anthropology, specializing in archaeology, or equivalent archaeological experience.

o Completion of an archeological field school.

o At least 16 months of professional experience and/or specialized training in archaeological field work, artifact analysis, and administration.

o Demonstrated ability to plan, equip, staff, organize, and supervise a cultural resources survey.

o Demonstrated ability to accurately plot archaeological site locations on topographic maps and to map sites using GPS.

o Demonstrated competence in identifying and describing artifacts including identification of tool stones found within Oregon and Washington.

o Must be listed as a crew chief on the Principal Investigator’s valid Archeological

Resource Protection Act (ARPA) or Organic Act permit for the National Forest.

Crew Member

Each Crew Member must have the following minimum qualifications:

o At least 24 semester hours of credit in archaeology, anthropology, and/or history courses. Courses must include information on the conduct and theory of archaeological survey and excavation.

o Completion of an archeological field school.

o At least 3 months field experience in archaeological survey. Crew members must work under the direct field supervision of a certified crew leader or project supervisor at all times.

Heritage Survey and Reporting Requirements

A) Since most of the survey area has limited surface visibility and is covered in brush or thick layers of duff, shovel testing in high probability landforms is required during pedestrian survey. Survey of adjacent temporary roads, skid roads, access areas, and staging areas will also be required – these areas outside of the planning units are estimated to be about 10% of the total unit acreage. The purpose of the required work is to identify and document the nature and extent of cultural resources located within the project area.

B) The Contractor must furnish all labor, personnel, supervision, equipment, materials, supplies, tools, transportation, travel, and incidentals to perform all work necessary for completion of tasks. The RRSNF Heritage Program Manager will provide to the contractor probability survey maps and appropriate inventory design measures.

C) The Contractor is responsible for all other data collection and reports that will be used as the basis for deliverables. The Contractor must keep archaeological information and all materials that discuss archaeological site locations confidential (Archaeological Resources Protection Act). All data and materials resulting from this project must remain the sole property of the USDA Forest Service.

Pre‐field Work

D) Prior to field work an Archeological Resource Protection Act (ARPA) or Organic Act permit must be obtained; the Contractor must obtain a permit from the RRSNF Special Uses Program. The permit allows the contractor to conduct shovel testing in high probability areas.

E) The RRSNF will identify acres to be surveyed and survey intensity utilizing the RRSNF

Inventory design. This information can be obtained from the RRSNF Heritage Program Manager.

F) The Contractor must coordinate with the RRSNF Heritage Program Manager to obtain access to known sites, prior surveys, and if there are areas of concern in the project area prior to entering the field.

G) The Contractor must conduct pre-field research that includes historic background research, GLO Records, Historic Maps, SHPO site files, and RRSNF Heritage Program files at the Rogue-River Siskiyou Forest headquarters in Medford, OR.

H) The Contractor must meet with the RRSNF Heritage Program Manager and/or representative prior to the commencement of survey to discuss any questions/concerns regarding the project.

Survey Protocols

I) The Contractor will conduct surveys that are consistent with those currently employed on the Rogue-River Siskiyou Forest that include pedestrian survey and shovel testing. The Inventory Design dictates survey intensity for an area. Probability levels include High (100% survey coverage), Medium (50% survey coverage), and Low (10% survey coverage). Transects for all areas shall not exceed 30-meter intervals. Random shovel testing will be conducted in high-probability areas equivalent to one shovel test probe per 20 acres. Shovel tests will be dug as deep as possible and screened through 1/8” wire mesh.

The depth of the shovel test will be recorded, soil color documented using a Munsell soil chart, GPS location collected, and artifacts tallies recorded (if necessary). Artifacts are not collected and shall be placed back in the shovel test pit prior to backfilling.

J) The Contractor shall monitor, or update archeological sites previously identified within

Units 1 and 2 for the project using the RRSNF site record form (forms will be provided by the RRSNF-HPM).

K) The Contractor shall record new sites and isolates on the RRSNF site form.

New sites should be recorded to Federal and State standards where anything 50-years-old or over is considered an artifact.

L) The Contractor shall flag a 30m buffer around sites. The buffer will be flagged and will be recorded by the Contractor using a precision GPS unit. The Contractor will tie flagging securely to trees with seven (7-10) meters spacing between flags, or as line-of-sight permits.

M) The Contractor shall produce site documentation (new sites and site updates), which will include a site sketch map, to be made to scale using a tape and compass or high precisions (sub-meter accuracy) GPS Unit, a location map, and photo log. All site features must be tracked by GPS, recorded, and photographed. The RRSNF Heritage Program Manager will provide Forest Service site numbers, for the purpose of recording newly discovered cultural resources.

N) The Contractor shall not collect artifacts. Diagnostic artifacts will be documented in detailed notes and in the photographic record, pushed back into the soil, and left on site.

O) The Contractor shall ensure that all diagnostic features are clearly recorded. Legal descriptions in the report must agree with those shown on maps and figures. All inventory locations, sites, scatters, isolated artifacts, and features mentioned in the report must be shown on the report maps and vice versa. The RRSNF Heritage Program Manager or authorized heritage professional may monitor the crew while in the field.

Post‐Field Work

P) The Contractor shall provide the RRSNF Heritage Program Manager the opportunity to review and comment on the draft cultural resource inventory report and site forms prior to finalization and submission to Oregon SHPO.

Q) The Contractor must provide all survey and site data to the RRSNF Heritage Program

Manager in electronic and hard copy form (See Appendix E for examples forms). This includes survey notes, GPS data, site, and survey GIS products (submitted as shape files or in a geodatabase). The Contractor must project GIS data into Universal Transverse Mercator (UTM), NAD 83/Zone 10N projection for all GIS data.

R) Within 10 days of completion, the Contractor must submit one copy of the fieldwork summary to the RRSNF Heritage Program Manager. The fieldwork summary must include at a minimum:

o the number of sites documented;

o the field assessment of their eligibility;

o draft maps and shape files of the site locations

S) The Contractor must submit two colors, unbound, hard copies of the final survey report, along with all associated maps, photos, and site forms and other documents, and one digital copy of the report and shape files. Legal descriptions in the report must agree with those shown on maps and figures. All inventory locations, sites, scatters, isolated artifacts, and features mentioned in the report must be shown on the report maps and vice versa.

Contract #: _________________

Contractor: _________________

STATE OF OREGON PERSONAL/PROFESSIONAL SERVICES CONTRACT

This Contract is between the State of Oregon, acting by and through its Department of Forestry, hereafter called “Agency” “ODF”, and Name of Company, hereafter called “Contractor”. Agency and Contractor shall collectively be referred to as the “Parties”.

1. Contract Period.

a. Term. This Contract shall become effective on the date this Contract has been fully executed by every party and, when required, approved by the Department of Administrative Services and the Department of Justice. Unless extended or terminated earlier in accordance with its terms, this Contract shall terminate when Agency accepts Contractor's completed performance or on ________________________, _______, whichever date occurs last. Contract termination shall not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

b. Authority. Agency is authorized to enter into this type of contract under the authority granted in

ORS 477, Office of the Governor State of Oregon Executive Order 21-10 COVID-19 State of Emergency, OAR125-247-0280 and the Department of Administrative Services (DAS) delegation 740-13 (as amended).

2. Statement of Work. Contractor shall perform the work (the “Work”) as set forth in the Statement of Work, which includes the delivery schedule for such Work, and that is attached hereto as Exhibit A.

Contractor shall perform the Work in accordance with the terms and conditions of this Contract.

3. Consideration

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $____________. ODF will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract for completing the Work and will not pay for Work performed before the date this Contract becomes effective or after the termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Work subject to the amendment.

b. Interim payments to Contractor shall be subject to ORS 293.462, and shall be made in accordance with the payment schedule and requirements in Exhibit A.

c. ODF will pay only for completed Work that is accepted by ODF.

d. Contractor shall submit monthly invoices to ODF’s Contract Administrator for Work performed.

The invoices shall describe all Work performed with particularity and by whom it was performed and shall itemize and explain all expenses that this Contract requires ODF to pay and for which Contractor claims reimbursement. Each invoice also shall include the total amount invoiced to date

CONTRACTOR: DEPARTMENT OF FORESTRY

Administrator: Administrator:

Title: Title:

Address: Address:

Phone: Phone:

Fax: Fax:

Email: Email:

Federal ID #:

by Contractor prior to the current invoice. Contractor will specifically note in the appropriate invoice when it has requested payment for one-third and two-thirds of the maximum, not-to-exceed compensation. Contractor shall send invoices to ODF’s Contract Administrator.

4. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence: this Contract less all exhibits, attached Exhibit A (the Statement of Work), Exhibit B (Required Insurance), Exhibit C (Compensation) and Exhibit D (Independent Contractor Certification Statement). Exhibits A-D are attached hereto and incorporated herein by this reference.

5. Independent Contractor; Responsibility for Taxes and Withholding

a. Contractor shall perform all Work as an independent contractor. The Agency reserves the right (i) to determine and modify the delivery schedule for the Work and (ii) to evaluate the quality of the Work Product, however, the Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

b. If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract, represents and warrants that: Contractor’s Work to be performed under this Contract creates no potential or actual conflict of interest as defined by ORS 244 and no statutes, rules or regulations of the state or federal agency for which Contractor currently performs work would prohibit Contractor’s Work under this Contract.

c. Contractor understands and agrees that it is not an "officer", "employee", or "agent" of the Agency, as those terms are used in ORS 30.265.

d. Contractor shall be responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency will not withhold from such compensation or payments any amount(s) to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

6. Subcontracts, Successors, and Assignments

a. Contractor shall not enter into any subcontracts for any of the Work required by this Contract without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that ODF will receive the benefit of subcontractor performance as if the subcontractor were the Contractor with respect to Sections 5, 6, 7, 9, 10, 11, 14, 15, 16, 18, and 23. Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

b. The provisions of this Contract shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns, if any.

c. Contractor shall not assign, delegate or transfer any of its rights or obligations under this Contract without Agency’s prior written consent.

7. No Third-Party Beneficiaries. ODF 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 such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

8. Funds Available and Authorized; Payments. Contractor shall not be compensated for Work performed under this Contract by any other agency or department of the State of Oregon. ODF certifies that it has sufficient funds currently authorized for expenditure to finance the costs of this Contract within the Agency's current biennial appropriation or limitation. Contractor understands and agrees that Agency's payment of amounts under this Contract is contingent on ODF receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow ODF, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

9. Representations and Warranties.

a. Contractor’s Representations and Warranties. Contractor represents and warrants to ODF that (1) Contractor has the power and authority to enter into and perform this Contract, (2) this Contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms, (3) 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 to perform the Work in a professional manner and in accordance with standards prevalent in Contractor’s industry, trade or profession, (4) Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Work, (5) all computer hardware and software delivered under this Contract will, individually and in combination, correctly process, sequence, and calculate all date and date-related data for all dates prior to, through and after January 1, 2000, (6) any software products delivered under this Contract that process date or date-related data shall recognize, store and transmit date data in a format which explicitly and unambiguously specifies the correct century, and (7) Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty.

b. Warranties cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

10. Ownership of Work Product.

a. Definitions. As used in this Section 10, and elsewhere in this Contract, the following terms have the meanings set forth below:

(i) “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Work.

(ii) “Third Party Intellectual Property” means any intellectual property owned by parties other than ODF or Contractor.

(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein that Contractor is required to deliver to ODF pursuant to the Work.

b. Original Works. All Work Product created by Contractor pursuant to the Work, including derivative works and compilations, and whether or not such Work Product is considered a work made for hire or an employment to invent, shall be the exclusive property of ODF. ODF and Contractor agree that such original works of authorship are “work made for hire” of which ODF is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created pursuant to the Work is not “work made for hire,” Contractor hereby irrevocably assigns to ODF any and all of its rights, title, and interest in all original Work Product created pursuant to the Work, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon ODF’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in ODF. Contractor forever waives any and all rights relating to original Work Product created pursuant to the Work, 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.

In the event that Work Product created by Contractor under this Contract is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to ODF an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Contractor Intellectual Property employed in the Work Product, and to authorize others to do the same on ODF’s behalf.

In the event that Work Product created by Contractor under this Contract is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on the ODF’s behalf and in the name of the ODF an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on ODF’s behalf.

c. Contractor Intellectual Property. In the event that Work Product is Contractor Intellectual Property Contractor hereby grants to ODF an irrevocable, non-exclusive, perpetual, royalty-free license to use, 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 ODF’s behalf.

d. Third Party Works. In the event that Work Product is Third Party Intellectual Property, Contractor shall secure on the ODF’s behalf and in the name of the ODF, an irrevocable, non-exclusive, perpetual, royalty-free license to use, 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 ODF’s behalf.

11. Indemnity.

a. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND

INDEMNIFY THE STATE OF OREGON AND AGENCY AND THEIR OFFICERS, EMPLOYEES AND

AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES,

LIABILITIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER, INCLUDING

ATTORNEYS’ FEES, RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTIVITIES

OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER

THIS CONTRACT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 11.a, CONTRACTOR EXPRESSLY AGREES TO DEFEND, INDEMNIFY, AND HOLD

AGENCY, THE STATE OF OREGON AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS,

DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS, SUITS,

ACTIONS, LOSSES, LIABILITIES, COSTS, EXPENSES, INCLUDING ATTORNEYS FEES, AND

DAMAGES ARISING OUT OF OR RELATED TO ANY CLAIMS THAT THE WORK, THE WORK

PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS DELIVERED TO AGENCY BY

CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR

FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR THE AGENCY’S USE

THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE

DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD

PARTY; PROVIDED, THAT STATE SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN

NOTICE OF ANY INFRINGEMENT CLAIM.

c. CONTROL OF DEFENSE AND SETTLEMENT. CONTRACTOR SHALL HAVE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY CLAIM THAT IS SUBJECT TO SECTIONS 11.a OR 11.b; HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY ENGAGED BY

CONTRACTOR SHALL DEFEND THE CLAIM IN THE NAME OF THE STATE OF OREGON OR

ANY AGENCY OF THE STATE OF OREGON, NOR PURPORT TO ACT AS LEGAL

REPRESENTATIVE OF THE STATE OF OREGON OR ANY OF ITS AGENCIES, WITHOUT FIRST

RECEIVING FROM THE OREGON ATTORNEY GENERAL, IN A FORM AND MANNER

DETERMINED APPROPRIATE BY THE ATTORNEY GENERAL, AUTHORITY TO ACT AS LEGAL

COUNSEL FOR THE STATE OF OREGON, NOR SHALL CONTRACTOR SETTLE ANY CLAIM ON

BEHALF OF THE STATE OF OREGON WITHOUT THE APPROVAL OF THE ATTORNEY

GENERAL. THE STATE OF OREGON MAY, AT ITS ELECTION AND EXPENSE, ASSUME ITS

OWN DEFENSE AND SETTLEMENT IN THE EVENT THAT THE STATE OF OREGON

DETERMINES THAT CONTRACTOR IS PROHIBITED FROM DEFENDING THE STATE OF

OREGON, OR IS NOT ADEQUATELY DEFENDING THE STATE OF OREGON’S INTERESTS, OR

THAT AN IMPORTANT GOVERNMENTAL PRINCIPLE IS AT ISSUE AND THE STATE OF

OREGON DESIRES TO ASSUME ITS OWN DEFENSE.

12. Insurance. Contractor shall maintain insurance as set forth in Exhibit B, which is attached hereto.

13. Default; Remedies; Termination.

a. Default by Contractor. Contractor shall be in default under this Contract if:

(i) 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; or

(ii) Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under the Contract and Contractor has not obtained such license or certificate within fourteen (14) calendar days after Agency’s notice or such longer period as Agency may specify in such notice; or

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

b. ODF’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 13.a, ODF may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

(i) termination of this Contract under Section 13.e (ii).

(ii) withholding all monies due for Work and Work Products that Contractor has failed to deliver within any scheduled completion dates or has performed inadequately or defectively.

(iii) initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief.

(iv) exercise of its right of setoff.

These remedies are cumulative to the extent the remedies are not inconsistent, and ODF may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If a court determines that Contractor was not in default under Sections 13.a, then Contractor shall be entitled to the same remedies as if this Contract was terminated pursuant to Section 13, e (i).

c. Default by ODF. ODF shall be in default under this Contract if:

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

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

d. Contractor’s Remedies for ODF’s Default. In the event ODF terminates the Contract under Section 13.e(i), or in the event ODF is in default under Section 13.c and whether or not Contractor elects to exercise its right to terminate the Contract under Section 13.e(iii), Contractor’s sole monetary remedy shall be (a) with respect to services compensable on an hourly basis, a claim for unpaid invoices, hours worked within any limits set forth in this Contract but not yet billed, authorized expenses incurred and interest within the limits permitted under ORS 293.462, and (b) with respect to deliverable-based Work, a claim for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by ODF, less previous amounts paid and any claim(s) that ODF has against Contractor. In no event shall ODF be liable to Contractor for any expenses related to termination of this Contract or for anticipated profits. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 13.d, Contractor shall pay immediately any excess to ODF upon written demand provided in accordance with Section 20.

e. Termination.

(i) ODF’s Right to Terminate at its Discretion. At its sole discretion, ODF may terminate this Contract:

(A) For its convenience upon thirty (30) days’ prior written notice by ODF to Contractor.

(B) Immediately upon written notice if ODF fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Work or Work Products; or

(C) Immediately upon written notice if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the ODF’s purchase of the Work or Work Products under this Contract is prohibited or ODF is prohibited from paying for such Work or Work Products from the planned funding source.

(ii) ODF’s Right to Terminate for Cause. In addition to any other rights and remedies ODF may have under this Contract, ODF may terminate this Contract immediately upon written notice by ODF to Contractor, or at such later date as ODF may establish in such notice, or upon expiration of the time period and with such notice as provided in Section 13.e (ii) (B) and 13.e (ii) (C) below, upon the occurrence of any of the following events:

(A) Contractor is in default under Section 13.a (I) because 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 is in default under Section 13.a(ii) because Contractor no longer holds a license or certificate that is required for it to perform services under the Contract and Contractor has not obtained such license or certificate within fourteen (14) calendar days after ODF’s notice or such longer period as ODF may specify in such notice; or

(D) Contractor is in default under Section 13.a(iii) because Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform the Work under this Contract within the time specified herein or any extension thereof, or so fails to pursue the Work as to endanger Contractor's performance under this Contract in accordance with its terms, and such breach, default or failure is not cured within fourteen (14) calendar days after ODF's notice, or such longer period as ODF may specify in such notice.

(iii) Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract with such written notice to ODF as provided in Sections 13.e (iii) (A) and 13.e (iii) (B) below, or at such later date as Contractor may establish in such notice, upon the occurrence of the following events.

(A) ODF is in default under Section 13.c(i) because ODF fails to pay Contractor any amount pursuant to the terms of this Contract, and ODF fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice; or

(B) ODF is in default under Section 13.c (ii) because ODF commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and ODF fails to cure such failure within thirty (30) calendar days after Contractor’s notice or such longer period as Contractor may specify in such notice.

(iv) Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to ODF all of ODF’s property (including without limitation any Work or Work Products for which ODF has made payment in whole or in part) that is in the possession or under the control of Contractor in whatever stage of development and form of recordation such ODF property is expressed or embodied at that time. Upon receiving a notice of termination of this Contract, Contractor shall immediately cease all activities under this Contract, unless ODF expressly directs otherwise in such notice of termination. Upon ODF's request, Contractor shall surrender to anyone ODF designates, all documents, research or objects or other tangible things needed to complete the Work and the Work Products.

f. Agency's Right to Suspend Work.

(i) Agency may immediately suspend portions or all of the Work due to causes including, but not limited to:

(A) Failure of the Contractor to carry out any provision of this Contract.

(B) Failure of the Contractor to carry out written instructions from Agency.

(C) Conditions which, in the opinion of Agency, are unsuitable for performing the Work.

(D) Time required by Agency to investigate Contractor’s performance of Work or stand conditions; or

(E) Any reason considered by Agency to be in the public interest.

In no event shall Agency be liable for any costs incurred by Contractor by reason of delay or suspension under this subsection.

(ii) When a suspension occurs under (f)(i)(C), (D), or (E) above, Contractor may request an extension of time for performance of this Contract, for a period not to exceed the period of time during which Work was suspended. The request for extension must be in writing and:

(A) Shall be accompanied by the written consent to an extension of the security by

Contractor’s surety.

(B) Shall state the date to which the extension is desired, and the Work affected; and

(C) Must be received by Agency no later than ten (10) days following notice to Contractor that Work may re-commence.

Agency shall not unreasonably withhold approval of extension requests made under this subsection.

(iii) When work re-commences after the suspension, Contractor shall complete the Work in every respect as though prosecution had been continuous and without suspension.

14. Records Maintenance; Access. Contractor shall maintain all financial records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records pertinent to this Contract in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that ODF and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to such financial records and other books, documents, papers, plans, records of shipments and payments and writings of Contractor that are pertinent to this Contract, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records, books, documents, papers, plans, records of shipments and payments and writings for a minimum of six (6) years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

15. Compliance with Applicable Law and Standards. Contractor shall comply with all federal, state and local laws, regulations, executive…