Sample PSK-GNA Heritage Survey for Royce Mtn._Final.pdf

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

ATTACHMENT A

SAMPLE CONTRACT

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”, and Name of Company, hereafter called “Contractor”. Agency and Contractor shall collectively be referred to as the “Parties”.

1. Contract.

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 December 10, 2024, 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

526.275 et seq.

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 $________________________. Agency 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. Agency will pay only for completed Work that is accepted by Agency.

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 (Independent Contractor Certification Statement), Appendix A (Royce Mountain Project Area with Proposed Survey), Appendix B (Forest Service Isolate Form), Appendix C (Forest Service Site Recording Form), and Appendix D (Forest Service Site Monitoring Form). These exhibits A-C and appendices A-D are attached hereto and incorporated herein by this reference.

5. Independent Contractor; Responsibility

CONTRACTOR: DEPARTMENT OF FORESTRY

Administrator: Administrator:

Title: Title:

Address: Address:

Phone: Phone:

Fax: Fax:

Email: Email:

Federal ID #:

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

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

Title Name

Neither Contractor nor any Key Person of Contractor shall delegate performance of Services any Key Person is required to perform under this Contract to others without first obtaining the Agency’s written consent.

Further, Contractor shall not, without first obtaining the Agency's prior written consent, re-assign or transfer any Key Person to other duties or positions so that the Key Person is no longer available to provide the Agency with that Key Person’s expertise, experience, judgment, and personal attention. If Contractor requests the Agency to approve a re-assignment or transfer of a Key Person, the Agency shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Person. Any individual the Agency approves as a replacement for a Key Person is deemed a Key Person under this Contract. Contractor understands and agrees that the Agency may determine that the lack of experienced and qualified Key Persons constitute grounds to terminate this Contract.

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 Agency 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, 19, and 24. Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

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. Agency and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless 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. Agency 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 Agency receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract. Nothing in this Agreement is to be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

9. Representations and Warranties.

a. Contractor’s Representations and Warranties. Contractor represents and warrants to Agency 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) “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 the Agency or U.S. Forest Service (USFS) pursuant to the Work.

b. Ownership. 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 the USFS, and such Work Product shall be made available to the Agency, only upon its specific request. The USFS is an intended beneficiary of this Section 10 of this Contract.

c. Future use of data. All field notes, maps, electronic data, photographs or digital images, and artifacts collected or generated from this procurement are considered property of the United States Government and will be submitted to the USFS District Archaeologist with the final inventory report at the conclusion of the Project. All computer files generated or gathered as a result of this Contract must be deleted from all

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

non-federal computers used by the Contractor (or his/her subcontractors) immediately following submission of the final survey report. During the course of the Contract, reasonable precautions will be taken to avoid the disclosure of archeological sites and federally protected species locations to all but authorized USFS personnel.

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 it 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 Agency's notice, or such longer period as Agency may specify in such notice.

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

b. Agency’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 13.a, Agency 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 Agency 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 Agency. Agency shall be in default under this Contract if:

(i) Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency 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) Agency 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 Agency’s Default. In the event Agency terminates the Contract under

Section 13.e(i), or in the event Agency 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 Agency, less previous amounts paid and any claim(s) that Agency has against Contractor. In no event shall Agency 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 Agency upon written demand provided in accordance with Section 21.

e. Termination.

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

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

(B) Immediately upon written notice if Agency 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 Agency’s purchase of the Work or Work Products under this Contract is prohibited or Agency is prohibited from paying for such Work or Work Products from the planned funding source.

(ii) Agency’s Right to Terminate for Cause. In addition to any other rights and remedies Agency may have under this Contract, Agency may terminate this Contract immediately upon written notice by Agency to Contractor, or at such later date as Agency 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 it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

(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 Agency’s notice or such longer period as Agency may specify in such notice; or

(C) 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 Agency's notice, or such longer period as Agency may specify in such notice.

(iii) Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract with such written notice to Agency 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) Agency is in default under Section 13.c(i) because Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency 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) Agency is in default under Section 13.c (ii) because Agency 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 Agency 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 the USFS all of its Work (including without limitation any Work Products for which the Agency 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 Work 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 the Agency expressly directs otherwise in such notice of termination. Upon the Agency's request, Contractor shall surrender to anyone the Agency designates, all documents, research or objects or other tangible things needed to complete the Work and the Work Products.

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 Agency 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. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to Contractor and the Contract. Agency’s performance under the Contract is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235 which are incorporated by reference herein.

16. Tax Compliance. Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state. Contractor. Shall throughout the duration of this Contract and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivisions of this state. For the purpose of this Section, “tax laws” includes:

a. All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317 and 318;

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

b. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipt, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

c. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

d. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provision of this Section 16 constitutes a material breach of this Contract.

Further, any failure to comply with Contractor’s certification shall constitute a material breach of this Contract. Any failure to comply shall entitle Agency to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law or in equity, including but not limited to:

(i) Termination of this Contract, in whole or in part;

(ii) Exercise of the right of setoff, and withholdings of amounts otherwise due and owing to Contractor, in an amount equal to State’s setoff right, without penalty and

(iii) Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency may recover 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, costs of cure, and costs incurred in securing replacement Services and applications.

In addition, this Contact will be reported to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including:

(i) Garnishing the Contractor’s compensation under this Contract or

(ii) Exercising a right of setoff against Contractor’s compensation under this Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever.

17. Foreign Contractor. If Contractor is not domiciled in or registered to do business 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 Contract. Contractor shall demonstrate its legal capacity to perform the Work under this Contract in the State of Oregon prior to entering into this Contract.

18. Force Majeure. Neither Agency nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, terrorist acts, or other acts of political sabotage, or war where such cause was beyond the reasonable control of Agency or Contractor, respectively. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

19. Survival. All rights and obligations shall cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 1, 7, 8, 9, 10, 11, 12, 13, 14, 18, 24, and 25.

20. Time is of the Essence. Contractor agrees that time is of the essence under this Contract.

21. Notice. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing by email, personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or Agency at the address, number or email address set forth in this Contract, or to such other addresses or numbers as either party may indicate pursuant to this Section

20. Any communication or notice so addressed and mailed shall be effective five (5) days after mailing. Any communication or notice delivered by facsimile shall be effective on the day the transmitting machine generates a receipt of the successful transmission, if transmission was during normal business hours, or on

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

the next business day, if transmission was outside normal business hours of the recipient. To be effective against Agency, any notice transmitted by facsimile must be confirmed by telephone notice to Agency’s Contract Administrator. Any communication or notice given by personal delivery shall be effective when actually delivered. Any communication or notice given by email shall be effective upon the sender’s receipt of confirmation generated by the recipient’s email system that the notice has been received by the recipient’s email system.

22. Severability. The parties agree that if any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, 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 the Contract did not contain the particular term or provision held to be invalid.

23. 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 the Contract so executed shall constitute an original.

24. Governing Law; Venue; Consent to Jurisdiction. This Contract shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between Agency (and/or any other agency or department of the State of Oregon) and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any Claim or from the jurisdiction of any court. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS.

25. Merger Clause; Waiver. This Contract and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Contract. No waiver, consent, modification or change of terms of this Contract shall bind all parties unless in writing and signed by both parties and all necessary State approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of Agency to enforce any provision of this Contract shall not constitute a waiver by Agency of that or any other provision.

26. Amendments. Agency may amend this Contract to the extent permitted by applicable statutes and administrative rules in accordance with OAR 125-247-0805. Amendments may include, but are not limited to the following: (a) Amendments to the Statement of Work of the Contract to add or subtract services to/from the Statement of Work; (b) Amendments to extend the term of the Contract; and (c) Amendments to payment provisions associated with Amendments (a) or (b) above. No amendment to this Contract shall be effective unless it is in writing signed by the parties, and all approvals required by applicable law have been obtained.

27. Contractor Data and Certification.

a. Contractor Information. Contractor shall provide Contractor’s Social Security number or Contractor’s federal tax ID number and the additional information set forth below. This information is requested pursuant to ORS 305.385 and OAR 125-246-0330(3). Social Security Numbers provided pursuant to this Section will be used for the administration of state, federal and local tax laws.

Name (tax filing):

Address:

Business Designation (check one):

Corporation Professional Corporation Partnership Limited Partnership Limited Liability Partnership Limited Liability Company Sole Proprietorship Other:

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

b. Contractor Certification. By execution of the Contract, Contractor certifies that it 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.

28. Oregon False Claims Act.

a. The Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action or conduct by the Contractor pertaining to this Contract that constitutes a “claim” (as defined by the Oregon False Claims Act, ORS 180.750(1)). By its execution of this Contract, the Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to this Contract or the Project for which the Contract work is being performed. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or cause to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Contractor. Nothing in this Section or this Contract may be construed as limiting or derogating from any authority granted the Oregon Attorney General under 180.750 to 180.785.

b. The Contractor shall immediately report in writing, to the Agency, any credible evidence that a principal, employee, agent, or subcontractor of the Contractor, or any sub-grantee or other person, has made a false claim or committed a prohibited act under the Oregon False Claims Act, or has committed as criminal or civil violation of laws pertaining to fraud, bribery, gratuity, conflict of interest, or similar misconduct in connection with this Contract or moneys paid by the Agency under this contract.

c. The Contractor must include subsections (a) through (b) of this section in each subcontract or sub grant the Contractor may award in connection with the performance of this Contract. In doing so, the Contractor may not modify the terms of those subsections, except to identify the subcontractors or sub grantee that will be subject to those provisions.

29. Debarment.

Contractor certifies that their company, and its principles have not been debarred, suspended, proposed for debarment, declared ineligible, are not in the process of being debarred, or are voluntarily excluded from conducting business with a federal department or agency of the federal government. Information on debarment is available at the following websites: www.sam.gov/portal/SAM

30. Confidentiality.

a. Requirements. Subject to Section 29.c below, Contractor shall make reasonable efforts to maintain the confidentiality of any Confidential Information received from the Agency and shall not use such Confidential Information except in performing its obligations pursuant to this Agreement. For purposes of this Section 29, "Confidential Information" means all records, data, maps, draft and final reports, and other information produced by Contractor in carrying out the services under the Contract, as well as any information marked or designated in writing by either party as “confidential” prior to initial disclosure.

b. Exceptions. The confidentiality obligations imposed by this Section 29 do not apply to: (a) information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by the recipient; (b) information subsequently and rightfully received from third parties who have the necessary rights to transfer said information without any obligation of confidentiality; (c) information that was known to the recipient prior to the Effective Date without obligation of confidentiality; (d) information that is independently developed by recipient and documented in writing without use of, or reference to, any Confidential Information of the other party; and (e) information required to be disclosed by compulsory judicial or administrative process or by law or regulation;

provided that if Contractor is required to disclose Confidential Information under clause (e), Contractor shall first give the Agency notice and shall provide such information as may reasonably be necessary to enable Agency to take such action to protect its interests, if any; provided further that Agency is not required to assist Contractor in opposing disclosure of Confidential Information.

http://www.sam.gov/portal/SAM

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

c. Public Records Law. Agency may disclose Confidential Information to the extent Agency deems disclosure is required by Oregon Public Records Laws, (ORS 192.410-192.505).

CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT CONTRACTOR

HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND

CONDITIONS.

CONTRACTOR OREGON DEPARTMENT OF FORESTRY

By:_____________________________________ By:_____________________________________ Date Date

Print Name and Title Print Name and Title

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

EXHIBIT A

STATEMENT OF WORK

Part I. General Information.

The US Forest Service (USFS) and Oregon Department of Forestry (ODF) are seeking a cultural resource contract to survey 439 acres of inventory and complete the resource documentation and technical report in compliance with Section 106 of the National Historic Preservation Act (NHPA) for the Royce Mountain Hazardous Fuels Management Project (hereinafter referred to as the “Project) located on the Deschutes National Forest.

The Royce Mountain Hazardous Fuels Management Project involves vegetation management and fuels reduction across approximately 1,600 acres of the Crescent Ranger District. The Project area is located in the Crescent Ranger District, approximately 12 miles west of Crescent, Oregon in T23S R07E Sections 26, 28, 29, 31, 32, 33, 34, in T24S R07E Sections 2, 3, 5, 6, 7, 8, 10, 15, 16, 17, on Deschutes National Forest lands within the Wildfire Crisis Strategy Central Oregon priority landscape. Treatment of these areas will increase overall forest health and provide safer ingress and egress in the event of a wildfire. Treatments will include mowing, mastication, thinning, pruning, pile and pile burning, and under burning with re-entry every 5 to 15 years based on conditions like forest, weather, fuels, etc.

Areas requiring survey will be determined by the Forest Service. Survey methods, the cultural resource report, and site and isolated find documentation must follow OPRD Field Guidelines and meet Oregon State Historic Preservation Office (SHPO) standards, available at:

https://www.oregon.gov/oprd/OH/Documents/FieldGuidelines.pdf and https://www.oregon.gov/oprd/OH/Documents/Reporting_Guidelines.pdf

Work must be completed by archaeologists meeting the Secretary of Interior’s Professional Qualification Standards, available at: https://www.nps.gov/articles/sec-standards-prof-quals.htm.

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

• A graduate degree in archeology, anthropology, or closely related field;

• At least one year of full-time professional experience or equivalent specialized training in archeological research, administration, or management;

• At least four months of supervised field and analytic experience in general North American archeology and demonstrated ability to carry research to completion;

• At least 6 months experience in archaeological surveys;

• Demonstrated competence in collecting, handling, analyzing, evaluating, and reporting archaeological data;

and

• Ability to obtain an Archaeological Investigation Permit from the Deschutes National Forest (DNF) Special

Uses Program prior to beginning fieldwork.

Part II. Work; Acceptance Criteria; Deliverables and Delivery Schedule.

A. PRE-FIELD WORK

• The Forest Service will identify locations to be inventoried within the Project boundary (Appendix A).

Survey acreage will not exceed 439 acres.

• The Contractor must complete pre-field research that includes historical background research, a search of General Land Office (GLO) records, historic topographic maps, and a review of the Oregon Archaeological Remote Records database maintained by the Oregon SHPO.

https://www.oregon.gov/oprd/OH/Documents/FieldGuidelines.pdf https://www.oregon.gov/oprd/OH/Documents/Reporting_Guidelines.pdf https://www.nps.gov/articles/sec-standards-prof-quals.htm

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

• The Contractor must coordinate with the District Archaeologist to conduct a review of cultural resource records on file at the Crescent Ranger District office. An Archaeological Investigations Permit must be in place before the DNF can release any cultural resource information to the Contractor.

B. FIELD METHODS

The Contractor will perform cultural resource field methods as follows:

• Survey transects must be spaced at intervals ≤20 meters.

• All resources greater than or equal to 50 years old must be documented. For the purposes of this Project, an “isolated find” is defined as a single artifact. Two or more artifacts are considered a “site”.

Features, with or without associated artifacts, are considered a “site”.

• All previously recorded cultural resources in the Royce Mountain Project boundary must be revisited

(see below chart). Site revisits will include an intensive 5-10 meter transect survey of the site area to establish surface boundaries. Updated spatial data must be collected and a monitoring form (Appendix D) must be completed for each previously recorded cultural resource revisited. If previous site data includes a GPS point, then a site boundary must be established and recorded in the form of a GIS polygon. If the existing site form does not meet modern professional standards, new documentation utilizing the Forest Service National site recording form (Appendix C) must be completed in lieu of a monitoring form.

Forest Service Number Smithsonian Number Required Documentation 06010200507 N/A Monitoring Form 06010200506 N/A National Site Form 06010200107 35KL 02457 Monitoring Form 06010200317 35KL 01858 Monitoring Form 06010200579 N/A Monitoring Form

• All newly discovered sites will be documented using the Forest Service National Site form. The Forest

Service will issue the Contractor a block of site numbers to be used in documentation. Site forms must be fully completed (see Appendix C for an example of the National Site Form). Site forms must include:

o A Cultural Resource Description including an introduction paragraph with general site type, landscape description (i.e. topography, vegetation, soil), ground surface visibility, site size, and total artifact count. The document will also include Site Content Details with assemblage details, average artifact density, and features (if present) and a summary containing the overview of timeframe and site function for the site.

o Site overview photographs and photographs that demonstrate the artifact assemblage are required.

Photographs are also required for all features, artifact concentrations, pre-contact tools, and notable historic items. Detailed photographs must include a scale. Direction of photo must be noted.

o Location map at 1:24,000 scale.

o A site sketch map that must be to scale. Artifact concentrations, features, all pre-contact tools, and notable historic artifacts must be plotted on the sketch map.

o A recommendation of National Register of Historic Places (NRHP) eligibility must be made using the four criteria (association with a historically significant event, association with a historically significant person, represents the work of a master, or research potential) and seven aspects of integrity. In the event that an NRHP eligibility recommendation cannot be made, an explanation must be provided as to why the assessment cannot be made (e.g. pre-contact site may need to be tested for subsurface cultural deposits, but testing is not part of this project, therefore the site cannot be evaluated under Criterion D). Tribal consultation is required for precontact sites under Criteria A and B. Because tribal consultation is not part of this contract, only preliminary evaluations can be made for precontact sites under Criteria A and B. The Contractor will do research to determine if any sites are located in the areas that literature notes as significant. Eligibility recommendations for historic sites are required.

Contract: PO-62900-XXXXXXXX Heritage Surveys for the Royce Mountain Hazardous Fuels Management Project Contractor:

o Document must be in Microsoft Word format.

• Isolated finds must be documented on the Forest Service Isolated Find form (Appendix B). An overview photograph including the direction of the photos taken, detailed photographs (as needed), and a location map at 1:24,000 scale are required. Isolated finds must be evaluated for the NRHP eligibility under all four eligibility criteria and the seven aspects of integrity.

• Sites and isolated finds must be documented using a GPS with an accuracy of less than 5-meters.

Please specify the type of GPS unit that will be used for data collection. The Contractor must submit GIS data for relocated previously recorded sites, newly recorded sites, isolated finds, and the boundary of survey areas. Site and survey boundaries must be polygons; isolated finds must be point data.

C. POST-FIELD WORK

Contactor will provide Post-Field Work and Reporting as follows:

• Within 10 days of survey completion, the Contractor must submit a summary of the field work to the Heritage Program Manager and District Archaeologist. The fieldwork summary must include at a minimum:

o The number and type of sites documented.

o The field assessment of their eligibility.

o A description of any required survey areas which could not be inventoried and the reason as to why.

o A description of the landscape condition and any issues that may have affected cultural resource identification.

o An outline of the days in which fieldwork took place and the crew members associated with the

Project.

D. DELIVERABLES

• Contractor must provide the Heritage Program Manager and District Archaeologist the opportunity to review and comment on the draft cultural resource inventory report, site forms, and isolated find documentation and GIS data prior to finalization. The Forest Service will provide feedback within 2 weeks of draft submittal. Changes and edits requested by the Forest Service will be incorporated into the final letter report and final site/isolated forms.

• The Letter Report from the Contractor must include the following:

o The results of the pre-field research o Description of field methods including dates of survey, number of surveyors, and description of transect spacing. Please indicate if any potential cultural resources identified during pre-field research were encountered. If any required survey areas were not inventoried, please provide a justification. Also include a discussion of ground surface visibility throughout the project area and any issues that may have affected cultural resource identification.

o The results of the inventory may be provided in a table format. The table must include the Forest Service Site Number, the Smithsonian Number (if available for previously recorded resource(s)), the type of resource (Site/Isolated Find), a brief description (such as precontact lithic scatter with tools or historic logging railroad grade), and the NRHP eligibility recommendation. No further information on sites or isolated finds is required in the letter report.

o Overview photographs of the project area that show variations in the landscape; include a minimum of two photographs.

o Survey maps and site/isolated find location maps must be…