Attachment F - Professional Services Agreement SAMPLE.pdf

PROFESSIONAL SERVICES AGREEMENT

{01917577-01705390;1}

This professional services agreement is dated as of the Effective Date and is between BEND PARK AND

RECREATION DISTRICT, an Oregon special district (the “District”), and <ENTER CONSULTANT’S FULL

LEGAL NAME>, <a/an> <enter organization type (e.g. “corporation” or “individual”)> (the “Consultant”).

<Choose solicitation method> seeking professional design services for <enter project name><choose solicitation definition> The Consultant submitted a proposal dated <enter proposal date> in response to the District’s request, offering to provide the District with the Services (“Proposal”). The District subsequently awarded the project to the Consultant.

The District and the Consultant now desire to memorialize the terms and conditions pursuant to which the Consultant will provide, and the District will pay for, the Services.

For the mutual exchange of promises contained in this agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the District and the

Consultant agree as follows:

Article 1

PROJECT PARAMETERS

1.1 Project

This Agreement is based upon the following initial information and assumptions and as further detailed in Article 2 (Scope of Services) (the “Services”):

(1) Project Name: <enter project name>

(2) Project Location(s): <enter street address(es), taxlot(s), or other unique project location identifier(s)>

(3) Project Description: <enter project description and/or brief background/history>

(4) Project Schedule: This project <choose project beginning>, and be completed by <enter project completion>

1.2 Representatives

The following representatives are assigned by each party to administer this agreement and serve as the primary point-of-contact on behalf of their respective entity. Either party may change their representative at any time by written notice to the other party.

The “District Representative”:

<enter first and last name>

<enter title>

<enter street address>

<enter city, state zip code>

<enter email address>

<enter phone number>

{01917577-01705390;1} PROFESSIONAL SERVICES AGREEMENT

Template 06.24.2025

The “Consultant Representative”:

<enter first and last name>

<enter title>

<enter street address>

<enter city, state zip code>

<enter email address>

<enter phone number>

1.3 Consultant’s Sub-consultants

Choose an item.

(1) <enter Sub-consultant Specialty (e.g. Landscape Architect, Structural Engineer, etc.)>:

<enter Sub-consultant’s legal name>, <street address>, <city, state zip code>.

1.4 Consultant’s Compensation

The Consultant will be compensated at the rates and/or unit prices described in the Consultant’s attached fee proposal (see section 1.6), if any, but in no event will total compensation under this agreement exceed <enter consultant’s compensation ($###,###) (when the agreement price exceeds $250,000, the amount should be rounded to the nearest whole dollar)> (the

“Agreement Price”).

1.5 Agreement Term

This agreement is effective as of midnight at the end of the Effective Date and terminates as of midnight at the end of <enter agreement expiration date>.

1.6 Agreement Documents

For purposes of this agreement, the “Agreement Documents” consist of the following documents listed in order of precedence for the purpose of determining conflicting provisions in the Agreement Documents expect that in the event of overlap or inconsistency between the terms of the Agreement Documents, the term that provides a better quality or quantity of service to the District controls. To the extent that any terms of a document provided by the

Consultant conflicts with terms of this agreement, such terms are void and are expressly and wholly subject to the terms of this agreement.

(1) This agreement;

(2) <enter agreement document (e.g. The District’s RFP, including all addenda, incorporated by reference as Exhibit A; and)>

(3) <enter agreement document (e.g. The Consultant’s Proposal, attached as Exhibit B.)>

Article 2

SCOPE OF SERVICES

2.1 Scope of Services

The Consultant, acting as the District’s professional consultant for this project, shall supply all labor, training, certifications, licensure, materials, supplies, equipment, tools, and incidentals necessary to provide the Services for the District as more particularly detailed in <choose and enter where scope is detailed>. The Consultant shall perform the Services in a good and professional manner, and in accordance with the terms of this agreement, applicable federal, state, and local law, rule, code, ordinance, and policy.

2.2 Consultant’s Basic Services

The Consultant’s basic services include, as applicable to this project, the usual and customary

<select/enter appropriate services for the project (e.g. acoustical, architectural, civil, electrical engineering services, fire protection, interior design consulting, landscape architecture, landscaping, lighting, mechanical, plumbing, security system(s), structural, surveying, transportation planning)>, and other basic services necessary for successful completion of the

Services.

2.3 <Enter Scope of Work Section>

(a) <enter of work item>

Article 3

RELATIONSHIP OF THE PARTIES

3.1 Sub-consultants;

(a) Except for the Consultant’s sub-consultants specified in section 1.3, the Consultant shall provide the District Representative with a list of all sub-consultants it intends to utilize in its performance of the Services. The District reserves the right to review all sub-consultants proposed. The Consultant shall include all information on the qualifications and experience of its proposed sub-consultants as requested by the District Representative. The Consultant shall remove from performance of this agreement any sub-consultant to which the District has a reasonable objection, in the event the District has a reasonable objection to any sub-consultant, the Consultant will have a reasonable time period to find a suitable replacement.

(b) By written agreement, the Consultant shall require all sub-consultants to agree to be bound by, and adhere to, the terms, conditions, and understandings contained in this agreement.

(c) The Consultant shall pay its sub-consultants as required by the Consultant’s agreements with those sub-consultants. The District has no direct or indirect contractual obligation or other legal duty whatsoever to pay the Consultant’s sub-consultants or otherwise ensure that the Consultant makes full and timely payment to its sub-consultants.

3.2 Key Staff

(a) This agreement was awarded on the basis of the unique background and abilities of the key staff identified in the Consultant’s Proposal (collectively and individually, the “Key Staff”). The Consultant shall make available the Key Staff for the duration of this agreement. If any Key Staff becomes unavailable to the Consultant, the parties shall mutually agree upon an appropriate replacement.

(b) Without prior notice to, and prior written consent from, the District (the District’s consent not to be unreasonably withheld), the Consultant shall not:

(1) re-assign or transfer any Key Staff to other duties or positions so that Key Staff are unable to fully perform their responsibilities under this agreement;

(2) allow any Key Staff to delegate to anyone their performance or management authority, or other responsibility required under this agreement; or

(3) substitute any Key Staff.

(c) The Consultant shall remove any Key Staff from performance of this agreement to which the District has a reasonable objection, in the event the District has a reasonable objection to any Key Staff, the Consultant will have a reasonable time period to find a suitable replacement.

(d) The District is not responsible for any expenses, lost profit, or other consequential damages incurred by the Consultant in the event of any re-assignment, transfer, substitution, or removal of the Consultant’s Key Staff.

3.3 Project Managers; Other Consultants

(a) In administering this Agreement, the District may retain the services of an independent project manager or other consultant(s) as needed to fulfill the District’s objectives.

(b) The District may retain an inspector to inspect this project to protect the District’s interests. The costs of the District’s inspector will be paid by the District. When retained by the District, the inspector’s duties are not to be interpreted as conflicting with the duties of the Consultant or relieving the Consultant of any responsibility or duty incurred under this Agreement, nor may the inspector act as the Consultant’s agent.

3.4 Consultant’s Status

(a) The Consultant shall perform all Services as an independent contractor. Although the District reserves the right to set the delivery schedule for the Services to be performed and to evaluate the quality of the completed performance, the District cannot and will not control the means and manner of the Consultant’s performance. The Consultant is responsible for determining the appropriate means and manner of performing the Services. The Consultant, its employees, and its sub-consultants are not “officers, employees, or agents” of the District, as those terms are used in Oregon Revised Statutes (“ORS”) 30.265.

(b) The Consultant will not have control or charge of, and not be responsible for, the acts or omissions of other consultants or contractors under contract with the District who are performing services or construction work on this project. However, this provision does not in any way change the Consultant’s professional responsibility to report to the District any information, including information on the performance of consultants or contractors outside the control or charge of the Consultant, concerning activities or conditions that have or could have an adverse effect on the District and/or this project.

3.5 Performance

Expiration or termination of this agreement will not extinguish, prejudice, or limit either party’s right to enforce this agreement with respect to any default or defect in performance.

3.6 Additional Services

(a) Without invalidating this agreement, the Consultant may provide services in addition to the Services set forth in section 1.1 of this agreement after its execution (“Additional Services”).

Except for services required due to the Consultant’s fault, the Consultant is entitled to additional compensation and appropriate adjustments to the schedule for any Additional Services performance in accordance with this section 3.6.

(b) The Consultant shall receive written approval from the District Representative prior to performing any Additional Services. The Consultant shall detail any request or Additional Services initiated by the Consultant with reasonable particularity, including (1) the facts and circumstances that gave rise to the need for Additional Services, (2) a description and if appropriate, line item detail of the Additional Services, (3) the Consultant’s fees for the Additional Services, and (4) any related schedule changes.

Article 4

RESPONSIBILITIES OF THE PARTIES

4.1 Consultant Responsibilities

(a) The Consultant shall provide all professional services customarily furnished and reasonably necessary to perform the Services and in accordance with the professional standards of care and diligence applicable in the locale and for the type of project contemplated.

(b) The parties will collaboratively develop a detailed project schedule consistent with the requirements of the Services and this project; the Consultant shall complete the Services diligently, without delay, and in accordance with the detailed project schedule/

(c) The Consultant shall coordinate the designs and other services provided by its sub-consultants and correlate the design documents to ensure consistency throughout.

(d) The Consultant shall be responsible for the acts and omissions of (1) the Consultant’s principals, agents, and employees, (2) its sub-consultants, (3) its sub-consultants principals, agents, and employees, and (4) other persons and entities the Consultant is responsible for, for their respective performance of the Services.

(e) The Consultant shall correct any inconsistencies, errors, omissions, or other defects in the drawings, specifications, deliverables, and other documents prepared by the Consultant or its sub-consultants at no additional cost to the District.

(f) The District’s review, approval, or acceptance does not relieve the Consultant of responsibility for any inconsistencies, errors, omissions, or other defects in the drawings, specifications, deliverables, or other documents prepared by the Consultant or its sub-consultants.

(g) The Consultant shall keep any real property involved in the project free from all liens by reason of its services and shall defend, indemnify, and hold harmless the District from the operation and effect of any such lien or encumbrance that may be claimed by any person by reason of the Consultant’s services. If the Consultant fails to remove any lien or adjust any other claim relating to the Consultant’s services, by bonding or otherwise, the District may, without recourse by the

Consultant, pay the lien or claim and charge such payments, with costs incurred, to the Consultant.

(h) The Consultant states the following:

(1) the Consultant has the authority to enter into and perform this agreement; the persons executing this agreement on the Consultant’s behalf have the actual authority to bind the Consultant to the terms of this agreement;

(2) the Consultant will at all times be properly licensed to perform the Services;

(3) the Consultant is an experienced individual or firm which has the skill, legal capacity, and professional ability necessary to perform the Services required under this agreement and to design and administer a project which has the scope and complexity of this project;

(4) the Consultant has the capabilities and resources necessary to perform the Consultant’s obligations under this agreement;

(5) the Consultant is, or will become, in a manner consistent with the standard of care, familiar with all current laws, rules, codes, and regulations, which are applicable to the design and construction of this project;

(6) this project, when completed and constructed in accordance with the intent established by the drawings, specifications, deliverables, and other documents prepared by the Consultant pursuant to this agreement, will be structurally sound, complete, properly functioning, and suitable for the purposes for which it was intended; and

(7) the statements of fact provided by the Consultant in this section 4.1(h) are in addition to, and not in lieu of, any other guarantees or warranties provided in this agreement or at law.

4.2 District Responsibilities

(a) The District shall furnish the Consultant with:

(1) information regarding requirements for this project, including programs setting forth the District’s objectives, schedules, constraints, and criteria;

(2) the following documents that are in the District’s possession, if any, general survey of the property, site condition reports including structural, mechanical, chemical, and other laboratory tests, inspections, and other reports; and

(3) other information in the District’s possession requested by the Consultant in writing in a timely manner

(b) The District shall render its own decisions in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Consultant’s services.

(c) The District’s shall assign a person fully knowledgeable about the project and with the authority to review and approve project work as its District Representative.

(d) The District shall pay plan check fees, review fees, permit fees, development charges, or any other costs related to obtaining governing bodies’ approval for construction of this project.

Article 5

GENERAL AGREEMENT PROVISIONS

5.1 Rounding

When the Agreement Price exceeds $250,000, the parties shall round dollar amounts provided, and required, by this agreement to the nearest whole dollar (the parties shall round all amounts equal to or less than 49 cents to the next lower whole dollar, and all amounts equal to or greater than 50 cents to the next higher whole dollar).

5.2 Payment Terms

(a) Unless otherwise agreed upon by the parties in writing, payments will be made monthly in proportion to the Services performed. The District shall pay the Consultant within 30-days after receipt of a properly itemized and accurate invoice with supporting documentation. Any progress payments issued by the District are not considered acceptance or approval of any completed Services or waiver of any defects therein.

(b) The Consultant shall not submit, and the District is not obligated to pay for (1) any invoice(s) that exceed the Agreement Price, (2) any charge that exceeds the unit prices, hourly rates, or other rates set forth in section 1.4, and (3) any charges expressly prohibited by this agreement.

5.3 Funding Requirements

The Consultant shall comply with all reasonable additional requirements imposed by grant or other funding sources awarded or made available to the District after the Effective Date, which may include, without limitation, changes to the insurance, indemnification, and access to record requirements of this agreement.

5.4 Instruments of Service

(a) The parties agree that in transmitting Instruments of Services, or any other information, the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on this project. Prior to transmitting Instruments of Services or other information electronically, the parties shall establish the necessary protocols to govern such transmissions.

(b) The Consultant and its sub-consultants shall retain common law, statutory, and other reserved rights in their original work, including copyrights, except that the Consultant grants to the District a nonexclusive license to reproduce the Instruments of Services for purposes of constructing, using, and maintaining this project. The Consultant shall obtain similar nonexclusive licenses from its sub-consultants consistent with this agreement.

(c) All Instruments of Services provided to the District become the District’s property. The District may use the Instruments of Services without the Consultant’s further permission for any lawful purpose. The District may assign, delegate, sublicense, pledge, or otherwise transfer its rights in the Instruments of Service. The District bears the risks of any unauthorized use of the Instruments of Service for any purpose other than this project.

(d) In this agreement, the following definition applies:

“Instruments of Service” means the drawings, specifications, and other documents, including those in electronic form, prepared by the Consultant and its sub-consultants which are intended and authorized for particular uses with respect to this project and are not intended or represented to be suitable for any other purpose or for any other project(s).

5.5 Confidentiality

(a) The Consultant shall not knowingly or negligently communicate or disclose at any time to any person or entity any information in connection with the Services or this project unless (1) the District provides prior written consent, (2) the information was/is in the public domain, (3) the information becomes part of the public domain by publication or otherwise which was not due to any unauthorized act or omission of the Consultant or its sub-consultants, (4) required to perform the Services, or (5) required by applicable law.

(b) The Consultant shall within 14-days of the District’s written request return and surrender to the District all copies of any materials, records, notices, memoranda, recordings, drawings, specifications, mock-ups, and any other documents furnished to the Consultant by the District.

The Consultant and its sub-consultants are entitled to each retain one copy of the documents.

(c) The requirements of this section 5.5 survive the complete performance of the Consultant and its sub-consultants and expiration or earlier termination of this agreement.

5.6 Access to Records

(a) The Consultant shall grant the District, the District’s consultants, the District’s funding agencies or partners and their respective consultants access to the Consultants and its sub-consultants books, documents, papers, and records applicable to this agreement for purpose of making audits, examination, excerpts, and transcripts for a period of not less than the later of three-years after termination or expiration of this agreement or the period required by the District’s funding agencies or partners.

(b) In the event this agreement, this project, any project-related consultant contract(s), or any project-related construction contract(s) are involved in a Proceeding, the Consultant and its sub-consultants shall retain all pertinent records for not less than the period required under section 5.6(a) or until the Proceeding is resolved, whichever is longer. The Consultant shall provide the District and the other entities specified in section 5.6(a) with full access to these records in preparation for and during the Proceeding.

5.7 Indemnification

(a) Claims for other than professional liability. The Consultant shall defend, indemnify, and hold harmless District Indemnitees against all Indemnifiable Losses to the extent arising out of a Proceeding resulting from or related to the activities of the Consultant or Representatives of the Consultant under this agreement, including without limitation (1) the Consultant’s breach of this agreement, (2) death, personal injury (including bodily injury), property damage, or violation of law, regulation, or orders caused in whole or in part by the Consultant’s performance under this agreement, (3) any alleged violation or infringement of a nonparties’ trade rights arising out of the Consultant’s performance under this agreement, and (4) any negligent or willful acts or omissions by the Consultant or the Representatives of the Consultant. Notwithstanding the Consultant’s defense obligations, the District may assume its own defense and settlement of any claims. The District reserves all rights to pursue any claims it may have against the Consultant in the event the District assumes its own defense.

(b) Claims for professional liability.

(1) The Consultant shall indemnify and hold harmless District Indemnitees against all Indemnifiable Losses arising out of a Nonparty Claim to the extent resulting from or related to the professionally negligent acts, errors, or omissions of the Consultant or Representatives of the Consultant under this agreement, including without limitation (1) the Consultant’s breach of this agreement, (2) death, personal injury (including bodily injury), property damage, or violation of law, regulation, or orders caused in whole or in part by the Consultant’s performance under this agreement, (3) any alleged violation or infringement of a nonparties’ trade rights arising out of the Consultant’s performance under this agreement, and (4) any negligent or willful acts or omissions by the Consultant or the Representatives of the Consultant.

(2) The Consultant shall defend District Indemnitees against all Indemnifiable Losses arising out of a Nonparty Claim to the extent resulting from or related to the professionally negligent acts, errors, or omissions of the Consultant or Representatives of the Consultant under this agreement to the extent Consultant’s liability or fault in determined by adjudication or alternative dispute resolution or otherwise resolved by settlement agreement, and not to exceed the proportionate fault of the Consultant.

(c) This section 5.7 does not include indemnification by the Consultant of the District and its Representatives for the sole negligent acts or omissions of the District and/or its Representatives.

(d) In this agreement, the following definitions apply:

“District Indemnitee” means the District, the District’s funding agencies and partners, and each

Representative of the District.

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending a

Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

“Loss” means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.

“Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding.

“Representative” means, with respect to an entity, any of that entity’s directors, officers, employees, agents, contractors, consultants, advisors, volunteers, and other representatives.

“Nonparty Claim” means any Proceeding brought by someone other than the Consultant or someone other than one or more District Indemnitees against one or more District Indemnitees and that arises out of this agreement.

5.8 Insurance

(a) General Liability. The Consultant shall maintain commercial general liability insurance (occurrence form) which includes coverage for death, personal injury (including bodily injury), property damage, independent contractors, contractual liability (covering the Consultant’s indemnification obligations), and products and completed operations, with limits of not less than $2,000,000 per occurrence and $4,000,000 in the aggregate. The Consultant shall maintain liability insurance which is primary and which does not seek contribution from any insurance or self-insurance maintained by the District or the District’s funding agencies or partners.

(b) Professional Liability. The Consultant shall maintain professional liability insurance which includes coverage for the professionally negligent acts, errors, or omissions of the Consultant with per-claim and aggregate limits of not less than $2,000,000 and a retroactive date no later than the Effective Date. The Consultant shall maintain such professional liability insurance through the later of (1) expiration or earlier termination of this agreement, or (2) a period of three-years after completion of this project.

(c) Auto Liability. The Consultant shall maintain liability insurance which includes coverage for any automobile assigned to or used in the performance of the Services, whether owned, hired, or non-owned, with a limit of liability of not less than $1,000,000 combined single limit per accident.

(d) Workers’ Compensation. Statutory limits. The Consultant shall comply with ORS 656.017, unless exempt under ORS 656.126, which requires subject employers to provide Oregon workers’ compensation coverage for all their subject workers including employers’ liability coverage with limits not less than $500,000. No workers’ compensation insurance has been or will be obtained by the District for the Consultant, the Consultant’s Representatives, or the Consultant’s sub-consultants.

(e) Additional Insured. The Consultant shall name the District, the District’s Representatives, and the District’s funding agencies and partners as additional insured parties on all liability policies other than professional liability and workers’ compensation policies.

(f) Notice. The Consultant shall, or the Consultant shall cause its insurer carrier(s) to, provide 30-days prior written notice to the District in the event of any cancellation, material change, potential exhaustion of aggregate limits, or non-renewal of insurance coverage(s). Any failure by the Consultant to comply with the reporting provisions on this sub-section (f) constitutes a material breach of this agreement, and in such event, the District may immediately terminate this agreement upon written notice to the Consultant.

(g) Certificates of Insurance. The Consultant shall, within five days of the Effective Date and prior to commencement of any Services, furnish the District with certificate(s) of insurance, including any applicable additional insured endorsements and all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this agreement).

Additionally, the Consultant shall, within five days of the District’s request, furnish the District with a copy of the declarations and endorsement pages of the Consultant’s general liability policy, listing all policy endorsements. Further, the District reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this section 5.8, at any time. The Consultant shall furnish the District new certificates and endorsements within five days after replacement or renewal of any insurance policy required by this section 5.8. Any failure by the Consultant to provide evidence of the insurance coverages required by this section 5.8 constitutes a material breach of this agreement, and in such event, the District may immediately terminate this agreement upon written notice to the Consultant.

(h) The Consultant acknowledges that the stated insurance coverages and coverage limits are the minimum acceptable by the District. The District encourages the Consultant to conduct its own analysis and/or consult its insurance agent or carrier(s) to determine the appropriate insurance coverage(s) and coverage limits in excess of the District’s minimum acceptable limits to meet the Consultant’s risk.

(i) If the Consultant maintains broader insurance coverage and/or higher coverage limits than the minimums required by this section 5.8, the District requires and is entitled to the broader insurance coverage and/or higher coverage limits maintained by the Consultant. The Consultant make available to the District any insurance proceeds in excess of the specified coverage limits.

5.9 Compliance with Applicable Law

(a) The Consultant shall comply with all laws, rules, codes, regulations, policies, and applicable requirements imposed by governmental authorities having jurisdiction over the Services. The District’s performance under this agreement is conditioned upon the Consultant’s compliance with the applicable portions of ORS 279A, 279C, and OAR 137-048, which are hereby incorporated by reference.

(b) The Consultant hereby certifies, under penalty of perjury, that the Consultant is, to the best of the Consultant’s knowledge, not in violation of any tax laws described in ORS 305.380(4).

5.10 Termination

(a) Mutual Consent. This agreement may be terminated at any time by mutual written agreement of the parties.

(b) Termination for Convenience. The District may terminate this agreement, in whole or in part, upon 30 days prior written notice to the Consultant.

(c) Termination by District. The District may terminate this agreement immediately upon written notice to the Consultant, or on such later date as the District may establish in its notice, upon the occurrence of any of the following events:

(1) the District fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to pay for the Services or completion of this project;

(2) federal, state, or local laws, rules, regulations, ordinances, or guidelines are modified or interpreted in a way that either the purchase of the Services by the District under this agreement, or the District’s payment for the Services from the planned funding source, is prohibited;

(3) the Consultant is in default of this agreement beyond all applicable notice and cure periods; or

(4) as otherwise provided for in this agreement.

(d) Termination by Consultant. The Consultant may terminate this agreement in the event the District fails to make any payment to the Consultant within 30 days of written notice from the Consultant that such payment is past due and the Consultant’s request for payment complies with this agreement, or as otherwise provided for in this agreement.

(e) Effect of Termination. Upon the parties mutual agreement to terminate, the Consultant’s receipt of the District’s termination notice, or the Consultant’s issuance of a termination notice to the District, (1) the Consultant shall stop all performance under this agreement as directed by the District, (2) the District shall pay to the Consultant the fees and expenses for the Services reasonably incurred prior to such termination, however, the District is not responsible for any lost profit or other consequential damages, and (3) the Consultant shall deliver to the District all documents, information, works-in-progress, and other property that are or would be the property of the District had this agreement been completed.

5.11 Suspension

(a) In the event the District suspends this project for more than 60 consecutive days for reasons other than the Consultant’s or its sub-consultant’s fault and not related to project phasing, the District shall pay the Consultant the fees and expenses for the Services reasonably incurred prior to such suspension (but shall not be responsible for any lost profit or other consequential damages). When the project is resumed, the Consultant shall be compensated for reasonable expenses incurred in the interruption and resumption of its services, and the parties shall mutually agree upon equitable adjustments to the project schedule and the Consultant’s fees for the remaining services.

(b) In the event the District suspends this project for more than 180 consecutive days for reasons other than the Consultant’s or its sub-consultant’s fault and not related to project phasing, the Consultant may terminate this agreement upon 60 days prior written notice to the District.

5.12 Force Majeure

(a) If a Force Majeure Event prevents a party from complying with any one or more obligations under this agreement, that inability to comply will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event or (B) develop and maintain a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (3) that party complies with its obligations under the first sentence of section 5.12(b).

(b) If a Force Majeure Event occurs, the noncomplying party shall as soon as reasonably possible, however, in no event later than ten days of the event constituting the Force Majeure Event, notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying party expects it to last. Thereafter the noncomplying party shall update that information as reasonably necessary. During a Force Majeure Event, the noncomplying party shall use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.

(c) The District may terminate this agreement upon 30 days prior written notice to the Consultant after reasonably determining that the Force Majeure Event will likely prevent successful performance of this agreement.

(d) In this agreement, the following definition applies:

“Force Majeure Event” means, with respect to a party, any event or circumstance, whether or not foreseeable, that was not caused by that party and any consequences of that event or circumstance.

5.13 Notices

(a) A notice or other communication under this agreement will be effective if it is in writing and is received by the intended recipient. It will be deemed to have been received as follows:

(1) if a paper copy is delivered by a delivery organization and the intended recipient or a Representative of the intended recipient signs for it—when it is signed for, as indicated in the records of the delivery organization;

(2) if a paper copy is delivered by a delivery organization that allows users to track deliveries and the intended recipient or a Representative of the intended recipient does not sign for it—upon delivery as stated in the tracking system;

(3) if it is delivered by email—when the intended recipient acknowledges by notice in accordance with this section 5.13 (but without need for further acknowledgement) having received that message, except that a read receipt or an automatic reply will not constitute acknowledgment of a message for purposes of this section 5.13; and

(4) if the intended recipient rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given—upon that rejection, refusal, or inability to deliver.

(b) For a communication to be effective, it must be addressed using the information provided in section 1.2 for that party and any co-addressee designated or any other information provided by that party in a notice in accordance with this section 5.13. A communication sent to a party’s co-addressee designated in accordance with this section 5.13(b) will be irrelevant in determining when that communication was received by that party.

(c) If a communication is received after 5:00 p.m. on a business day at the location specified in the address for the intended recipient, or on a day that is not a business day at that location, that communication will be deemed to have been received at 9:00 a.m. on the next business day.

5.14 Non-discrimination

The Consultant shall comply with all applicable requirements of federal and state civil rights law and rehabilitation statutes and shall not discriminate based on race; color; gender; age; religion;

ancestry, national origin; U.S. military veteran status; marital status; sexual orientation;

disability; medical condition; source of income; or political affiliation in programs, activities, services, benefits, or employment in connection with this agreement.

5.15 Publicity

The Consultant shall obtain approval from the District prior to distribution of all news releases, marketing, and advertising, use of the District’s logo, identities, formats, and other marketing materials related to this agreement and/or this project. The Consultant agrees to make reasonable efforts to coordinate all media communications through the District, and immediately inform the District of all media inquiries regarding the subject of this agreement.

Article 6

MISCELLANEOUS

6.1 Entire Agreement; Signatures

The Agreement Documents contain the entire understanding of the parties regarding the subject matter of this agreement and supersede all prior and contemporaneous negotiations and agreements between the parties, whether written or oral, with respect to the subject matter of this agreement. This agreement may be signed in counterparts. An electronically transmitted signature page will be considered an original signature page. At the request of a party, the other party will confirm an electronically transmitted signature page by delivering an original signature page to the requesting party.

6.2 Severability

The parties acknowledge that if a dispute between the parties arises out of this agreement or the subject matter of this agreement, they would want the court to interpret this agreement as follows:

(1) with respect to any provision that it holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision;

(2) if an unenforceable provision is modified or disregarded in accordance with this section 6.2, by holding that the rest of this agreement will remain in effect as written;

(3) by holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and

(4) if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.

6.3 Waiver

No waiver of any provision of this agreement will be effective unless it is in writing and signed by the party granting the waiver. No failure or delay in exercising any right or remedy under this agreement will operate as a waiver of that right or remedy. A waiver granted on one occasion will not operate as a waiver on future occasions.

6.4 Time

Time is of the essence in the performance of all obligations under this agreement. The

Consultant shall at all times carry on the Services diligently, without delay, and punctually fulfill all requirements of the Services.

6.5 Amendments

This agreement may only be amended by written instrument, signed by both parties.

6.6 Successors and Assigns

The provisions of this agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Except for portions of the Services performed by the Consultant’s employees or sub-consultants approved by the District, this agreement is not assignable or transferable by the Consultant without the District’s prior written consent, which may be withheld in the District’s sole discretion, and any purported assignment or transfer without the District’s consent is void.

6.7 Further Assurances; Survival

The parties will sign such other documents and take such other actions as are reasonably necessary to further effect and evidence this agreement. The termination of this agreement, regardless of how it occurs, will not relieve a party of obligations that have accrued before the termination. All of the Consultant’s representations, warranties, covenants, and obligations contained in this agreement (including, without limitation, the Consultant’s indemnity obligations) will survive the termination of this agreement.

6.8 Governing Law; Venue

This agreement will be interpreted and administered under the laws of the State of Oregon without regard to conflict of law principles. Any claim or dispute that arises from or relates to this agreement must be brought and conducted solely and exclusively within the Circuit Court of

Deschutes County for the State of Oregon; provided, however, if a claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United

States District Court for the District of Oregon.

6.9 Arbitration

As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of this agreement (or arising out of the subject matter of this agreement), a party may demand that the dispute be resolved by arbitration administered by the Arbitration Service of Portland in accordance with its construction industry arbitration rules in effect at that time. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction.

6.10 Attorney’s Fees

If any arbitration or litigation is instituted to interpret, enforce, or rescind this agreement, including, without limitation, any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs, and expenses of every kind, including, without limitation, the costs and disbursements specified in ORCP (Oregon Rules of Civil Procedure) 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.

6.11 Interpretation

As used in this agreement, the term “person” means any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, governmental agency, political subdivision, or any other entity, as context may require. All pronouns, and any variations, will be deemed to refer to the masculine, feminine, or neutral, as the identity of the person may require. The singular includes the plural and the plural includes the singular. The word “or” is not exclusive. The words “include,” “includes,” and

“including” are not limiting. The word “days” means calendar days unless expressly provided otherwise. All references to a time of day are references to the time in Bend, Oregon. The titles, captions, or headings of the articles and sections in this agreement are inserted for convenience of reference only and are not intended to be a part, or to affect the meaning or interpretation, of this agreement. The verb used to introduce a statement of fact in this agreement does not affect the remedies available for inaccuracy of that statement of fact.

6.12 Effectiveness and Date

This agreement will become effective when all parties have signed it. The date of this agreement will be the date this agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) (the “Effective Date”). If a party signs this agreement but fails to date their signature, the date the other party receives the signing party’s signature will be deemed to be the date the signing party signed this agreement.

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The parties are signing this agreement on the date stated below that party’s signature. The signatures of the parties authorized representatives below acknowledge that they have read and understood this agreement, represent that they have authority to execute this agreement, and agree that the applicable party will be bound by the terms and conditions of this agreement once fully executed.

Date:

Date:

<ENTER CONSULTANT’S FULL LEGAL NAME>

By:

Name:

Title:

BEND PARK AND RECREATION DISTRICT

By:

Name:

Title: ______

{01917577-01705390;1}