Silver Falls State Park- Concession Lease and Contract 11690 Executed.pdf

State of Oregon

CONTRACT FOR SERVICES

(Silver Falls State Park)

THIS CONTRACT FOR SERVICES (this “Contract”) is made and entered into effective as of April 9, 2025 (the “Effective Date”), by and between the State of Oregon, acting by and through the Oregon Parks and Recreation Department (“OPRD”), and Guest Services Management, LLC, a Delaware limited liability company (“Contractor”). OPRD and Contractor are each a “Party” and together the “Parties.”

RECITALS

A. OPRD owns certain improved real property located in Marion County, Oregon, known as Silver Falls State Park (the “Park”). The Park, which is part of Oregon’s State Park system, is depicted on Exhibit A. The Park is approximately 9,058 acres.

B. OPRD and Contractor are the parties to that certain “Concession Lease” of even date herewith (the “Lease”). Under the Lease, Contractor leases from OPRD certain improvements and immediately surrounding apron areas within the Park, depicted on Exhibit A-1, Exhibit A-2, Exhibit A-3 and Exhibit A-4 and described as follows (each a “Facility” and collectively the “Facilities”):

Park Area Facility/Designation on Exhibit Lodging Facilities

FBO

Facilities

“Smith Creek Village” the following areas of “Smith Creek Village Lodge,” being approximately 85% of the Lodge (the other areas of the Lodge are used by OPRD):

A-1

• “Big Leaf Dining Hall” (restaurant)

A-1 (Public Area)

• Courtyard at Big Leaf Dining Hall

A-1 (Public Area)

• commercial kitchen (within Big Leaf Dining Hall)

A-1 (Non- Public Area)

Alder Lodge (approx. 1,600 sf)

A-1

11690 Contract for Services Silver Falls State Park Page 1 of 63

Blueberry Lodge (approx. 1,600 sf)

A-1

Cedar Lodge (approx. 1,600 sf)

A-1

Dogwood Lodge (approx. 1,600 sf)

A-1

Duplex Cabin – Racoon (approx. 384 sf)

A-1

Duplex Cabin – Chickaree (approx. 384 sf)

A-1

Calypso Suite A-1 Smith Creek Meeting Hall (approx. 2,040 sf) meeting space; restrooms; coat room and storage closet

A-1

Business Office (approx. 648 sf) office, vending machine area

A-1

Maintenance Shop (approx. 1,154 sf) laundry area, restroom, 5 storage buildings

A-1

Storage A-1 Restroom A-1 Drake’s Meadow A-1 McKenzie Meadow A-1 Ceremony Meadow A-1

Upper Smith Creek Village

Upper Smith Creek Meeting Hall meeting space; restrooms;

showers

A-1

Upper Smith Creek Cabins 8 cabins (approx. 216 sf each)

A-1

Forest Edge Site A-1 Davidson Ranch Building (approx. 3,060 sf) and surrounding area kitchen, septic system, central meeting space, restrooms

A-2

Foothills Ranch Building (approx. 6,511 sf) and surrounding area kitchen, septic system, central meeting space, restrooms

A-3

“South Falls South Falls Lodge, which A-4

11690 Contract for Services Silver Falls State Park

Lodge” includes:

• “South Falls Café” A-4

(Public Area)

• South Falls Lodge Courtyard

A-4 (Public Area)

• “South Falls Theatre” A-4 (Public Area)

• commercial kitchen within South Falls Lodge

A-4 (Non- Public Area)

C. In performing the Services under the Contract (as Services is defined in the “Scope of Services” attached as Exhibit B), and in addition to its lease of the Facilities, Contractor has the nonexclusive right to use areas of the Park:

(1) that lie between the Facilities or are necessary for access to certain Facilities, all as depicted on Exhibits A-1, A-2, A-3 and A-4; and

(2) as may be identified during the Term of the Contract by the Park Manager (the

“PM”).

D. The Facilities include “Lodging Facilities” and “FBO Facilities,” as designated in Recital B above and depicted on Exhibits A-1, A-2, A-3 and A-4.

E. The Lodging Facilities are intended to be rented to the public for Lodging Services, as defined and set forth in the Scope of Services.

F. The FBO Facilities are intended to be used for FBO Services, as defined and set forth in the Scope of Services. As designated in Recital B above, the FBO Facilities include “FBO Public Areas,” where Contractor will provide FBO Services to guests, and “FBO Non-Public Areas,” which are non-guest areas for the exclusive use of Contractor (subject to OPRD’s access as set forth herein).

G. During the term of this Contract, the Facilities will be under the possession and control of Contractor, as set forth in the Lease, while the rest of the Park remains under the possession and control of OPRD.

H. This Contract and the Lease are separate documents, and the Lease is not incorporated into this Contract.

I. This Contract is made pursuant to Class Special Procurement SP#63400-00072680, attached as Exhibit C (the “Special Procurement”). The Special Procurement provided OPRD with a process for procuring concession and related services at Oregon State Parks that is different from and more suitable than the standard procurement process under the Oregon Public Contracting Code, due to the nature of the services to be provided at the Oregon State Parks being unique as compared to the typical goods and services acquired by State agencies under procedures established by ORS 279B.055 (Competitive Sealed Bidding) or ORS 279B.060 (Competitive Sealed Proposals).

J. OPRD wishes for Contractor to provide certain Services at the Facilities, and Contractor wishes to provide those Services at the Facilities, on the terms and conditions set forth below.

AGREEMENTS

1. CONTRACT TERM

1.1 Term.

1.1.1 The “Term” of this Contract commences on April 1, 2025 (the “Preliminary Commencement Date”). The “Full Commencement Date” is June 1, 2025.

Unless extended pursuant to Section 1.1.2 below or terminated earlier in accordance with its terms, this Contract expires May 31, 2030, which is five (5) years after the Full Commencement Date. The expiration or earlier termination of this Contract will not extinguish or prejudice OPRD’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

1.1.2 The Parties may extend the Term of this Contract as agreed upon, subject to the following:

(A) pursuant to the Special Procurement, such extensions may be made without any additional procurement process, for a total Contract Term of twenty (20) years;

(B) the Parties shall memorialize any such extensions in amendments to this

Contract and to the Lease.

1.1.3 The “Termination Date” is the last day of the Term, as may have been extended by the Parties pursuant to Section 1.1.2 above, or, if this Contract is terminated by either Party pursuant to the provisions herein, the effective date of the termination.

1.2 Contract Years. As used herein, “Contract Year” has the following meanings:

The first Contract Year begins on the Preliminary Commencement Date and expires on the day prior to the anniversary of the Full Commencement Date. The first Contract Year is likely to be longer than 12 months, but is intended to include 12 months during which Contractor provides all of the Services.

Subsequent Contract Years begin on the anniversary of the Full Commencement Date and expire on the day prior to anniversary of the Full Commencement Date.

2. CONTRACT DOCUMENTS

This Contract consists of the following documents, which are listed in descending order of precedence:

• this Contract, which includes:

o Exhibit A (Park);

o Exhibit A-1 (Smith Creek Village);

o Exhibit A-2 (Davidson Ranch);

o Exhibit A-3 (Foothills Ranch);

o Exhibit A-4 (South Falls Lodge); and o Exhibit B (Scope of Services);

• Exhibit C (Special Procurement);

• Exhibit D (Contractor’s Reports);

• Exhibit E (Insurance Requirements); and

• Exhibit F (Transition Plan Process).

The foregoing documents and Exhibits are attached hereto and made a part of this Contract by this reference.

3. SERVICES

3.1 Contractor shall provide the Services as set forth in the Scope of Services or as otherwise required under this Contract. Contractor shall perform the Services at all times in accordance with the terms and conditions of this Contract.

3.2 Contractor’s access to and use of the Facilities in order to provide the Services are governed by the provisions of the Lease.

4. ANNUAL CONCESSION FEE; MR&CR ACCOUNT CONTRIBUTIONS

4.1 Annual Concession Fee.

4.1.1 In consideration for the right to perform the Services at the Facilities pursuant to this Contract, Contractor shall pay to OPRD an annual concession fee (the “Annual Concession Fee”), being a percentage of Contractor’s Operating Income

(as defined in Section 4.1.2 below) from the Facilities during each Contract Year, as follows:

Operating Income for Contract Year

Contractor’s % OPRD’s %

$0.00 to $100,000.00 100.00% 0.00% $100,001.00 to $200,000.00 30.00% 70.00% $200,001.00+ 75.00% 25.00%

4.1.2 Definitions.

(A) “Operating Income” means Contractor’s profit from the Services, after deducting Operating Expenses.

(B) “Gross Revenue” means the money generated by all the Services in a given period of time, not accounting for any business expenses.

(C) “Operating Expenses” means all direct and allocated costs and expenses incurred in connection with the administration, management, and operation of the Services, including costs of sales; salaries, wages, benefits, and other costs of each Contractor employee working at the Park; the cost of supplies, equipment, uniforms (if any); utilities (including trash & recycling); credit card fees; services; repairs, maintenance, and replacements; MR&CR Account Contributions (as defined in Section 4.2.1 below); pest control; office expenses; advertising and promotion;

training; insurance, licenses, permits, taxes, and other charges levied or assessed with respect to the Services and its operations, including taxes levied or assessed on wages, salaries, supplies, newsletters, services, and Contractor’s property (if any), used at the Park and any penalties, fines, interest, and other expenses reasonably incurred in connection with any protest or litigation of such taxes; licenses or permit fees, or other charges attributable to operations; and reasonably allocated overhead expenses not to exceed one percent (1.0%) of Gross Revenue.

(D) “Operating Revenues and Expenses Term” means revenues and expenses that derive directly from operations to distinguish them from nonoperating revenues and expenses.

4.1.3 Contractor’s MR&CR Account Contributions in Contract Years 2 through 5 are included in Operating Income for those years.

4.1.4 Contractor shall pay OPRD the Annual Concession Fee for each Contract Year within one hundred twenty (120) days after the end of each Contract Year. Each such payment of the Annual Concession Fee will include an Annual Financial Report as described in Exhibit D.

4.2 MR&CR Account Contributions.

4.2.1 As additional consideration for the right to perform the Services at the Facilities pursuant to this Contract, Contractor shall make “MR&CR Account Contributions” to the MR&CR Account (as defined in the Lease), as summarized in this Section 4.2 and as detailed in the Lease.

4.2.2 Notwithstanding the provisions of Section 4.2.1 above, the FF&E and Hospitality

Property Value (as defined in the Lease) for Contract Year 1 is deemed to be Contractor’s MR&CR Account Contribution for Contract Year 1.

4.2.3 Commencing in Contract Year 2, the MR&CR Account Contributions are a percentage of Contractor’s Gross Revenue from the Services and calculated for each Contract Year as follows:

Contractor’s

Gross Revenue Contractor’s

Contribution Percentage First $1,000,000.00 4.50% $1,000,001.00+ 7.50%

4.3 Funds Available and Authorized. Contractor will not be compensated under this

Contract by any other agency or department of the State of Oregon. OPRD believes it has sufficient funds currently available and authorized for expenditure to continue the operation of the Park within OPRD’s biennial appropriation or limitation. Contractor understands and agrees that OPRD’s obligations under this Contract are contingent on OPRD receiving appropriations, limitations or other expenditure authority sufficient to allow OPRD, in the exercise of its reasonable administrative discretion, to continue the operation of the Park. Nothing in this Contract may be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law limiting the activities, liabilities or monetary obligations of OPRD.

5. CONTRACTOR’S REPORTS

Contractor shall deliver to OPRD the reports set forth in Exhibit D.

6. INDEPENDENT CONTRACTOR; RESPONSIBILITY FOR TAXES AND WITHHOLDING

6.1 Independent Contractor. Contractor shall perform all Services as an independent contractor. OPRD reserves the right: (1) to determine and modify the delivery schedule for the Services; and (2) to evaluate the quality of the Services; however, OPRD may not and shall not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Services, except to the extent that the means and manner in which the Services are to be provided is specifically set forth in the Exhibits to this Contract.

6.2 No Conflicts. Contractor, by signature to this Contract, represents and warrants that

Contractor’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Contract.

6.3 Affiliation. Contractor understands and agrees that it is not an “officer,” “employee,” or

“agent” of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

6.4 Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation Contractor receives as a result of this Contract, including any Marion County, Oregon tax on Contractor’s income for the Services. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

7. SUBCONTRACTS, SUCCESSORS AND ASSIGNMENTS

7.1 Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without OPRD’s prior written consent. In addition to any other provisions OPRD may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that OPRD will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. OPRD’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

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

7.3 No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without OPRD’s prior written consent.

8. REPRESENTATIONS AND WARRANTIES

8.1 Contractor’s General Representations and Warranties. Contractor represents and warrants to OPRD that:

8.1.1 Contractor has the power and authority to enter into and perform this Contract and the Lease.

8.1.2 This Contract and the Lease, when executed and delivered, are valid and binding obligations of Contractor enforceable in accordance with their terms.

8.1.3 Contractor shall, at all times during the term of this Contract, be qualified, professionally competent and duly licensed to perform the Services.

8.1.4 Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud or other dishonesty.

8.1.5 Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six (6) calendar years preceding the Effective Date, faithfully has complied with:

• all tax laws of this State, including, without limitation, ORS 305.620 and

ORS chapters 316, 317 and 318;

• any tax provisions imposed by a political subdivision of this State that applied to Contractor, to Contractor’s property, operations, receipts or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

• 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;

• any rules, regulations, charter provisions or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

• Contractor has no undisclosed liquidated and delinquent debt owed to the State of Oregon.

8.2 Contractor’s Performance Warranties.

8.2.1 Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession; and

8.2.2 The Services delivered by Contractor will materially comply with any Service descriptions, specifications, standards and requirements set forth in this

8.3 The warranties set forth in this Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Contract.

9. OPRD INTELLECTUAL PROPERTY

9.1 No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Contractor any right, title or interest in any intellectual property that is now owned or subsequently owned by OPRD.

9.2 Licensed Trademarks. OPRD hereby grants to Contractor a nonexclusive nontransferable license to use the specific Trademark or Trademarks listed below in this Section 9.2 (the “Licensed Trademarks”) solely on, or in direct reference to products and services that Contractor is required or authorized to provide under this Contract, and, as set forth in and in the manner described in this Section 9 (the “Licensed Use”). OPRD reserves all rights not expressly granted herein. Contractor shall not assign, transfer, or sublicense its rights in the Licensed Trademarks (or any right granted herein) in any manner without prior written consent from OPRD. OPRD does not grant to Contractor the right to use its trademarks (including the Licensed Trademarks), trade names, service marks or other designations in any promotion or publication in a manner that exceeds the authorization explicitly set forth in this Section 9.

For purposes of this Contract, the Licensed Trademarks are the following:

• Silver Falls State Park logo

• Smith Creek logo

9.3 Ownership, Identification and Use.

9.3.1 Contractor acknowledges OPRD’s sole ownership of the Licensed Trademarks and all associated goodwill, and that OPRD retains all right, title and interest in and to the Licensed Trademarks. All goodwill arising from use of the Licensed Trademarks by Contractor inures to the sole benefit of OPRD. Contractor agrees that it will not adopt, use, register or attempt to register anywhere in the world any name, word mark, design mark, logo or designation that is confusingly similar to the Licensed Trademarks, or any other Oregon State Parks marks or designations associated with the Oregon State Park system or individual parks, except as specified in this Contract.

9.3.2 Contractor shall not use Licensed Trademarks in a manner that may diminish or otherwise damage OPRD’s goodwill in the Licensed Trademarks as determined by OPRD at its sole discretion. Contractor shall not adopt, use or register any corporate name, trade name, trademark, domain name, service mark or certification mark or other designation that violates OPRD’s rights in the Licensed Trademarks.

9.3.3 Contractor shall take reasonable steps to timely notify OPRD in writing of any suspected violation of, or challenge to, OPRD’s rights in the Licensed Trademarks of which Contractor becomes aware. OPRD shall have the sole right to control any action concerning the Licensed Trademarks.

9.3.4 Contractor may use the Licensed Trademarks on traditional and digital media for the Licensed Use, so long as such use makes an accurate reference to OPRD or its products or services or both. Contractor agrees to never use the Licensed Trademarks in a way that infringes upon OPRD’s intellectual property or other rights, or that violates any applicable state or federal law. OPRD is not responsible for Contractor’s digital or traditional advertising, or any products or services advertised thereon. Each digital use of the Licensed Trademarks will include the phrase “the Oregon State Parks trademarks are the property of the Oregon Parks and Recreation Department and are used with permission.”

9.4 Specifications for Using Licensed Trademarks.

9.4.1 When used on Contractor’s Website (as defined in the Scope of Services), the Licensed Trademarks may be used as a link to the OPRD webpage at www.stateparks.oregon.gov or to the OPRD webpage for Silver Falls State Park.

The Licensed Trademarks may not be used as a link to any other page.

9.4.2 If Contractor’s company name, logo or product name appears on any materials where a Licensed Trademark is used, Contractor’s name, logo, or product name will be no more prominent than the Licensed Trademark’s prominence.

9.4.3 The Licensed Trademarks may not be used in any manner that expresses or might imply OPRD’s affiliation, sponsorship, endorsement or approval of products, services, or activities other than those products and services that Contractor is required or authorized to provide under this Contract.

9.4.4 Contractor shall not use the Licensed Trademarks in a manner that might suggest co-branding or otherwise create a potential confusion as to the source of the Licensed Product or ownership of the Licensed Trademarks.

9.4.5 The Licensed Trademarks may not be included in any non-OPRD tradename, business name, product or service name, logo, trade dress, design, slogan, domain name or other trademark.

9.4.6 The Licensed Trademarks may not be combined with any other symbols, including words, logos, icons, graphics, photos, slogans, numbers or other design elements.

http://www.stateparks.oregon.gov/

9.4.7 The Licensed Trademarks will include the “™” or r-circle “®” registration symbols as appropriate.

9.5 Quality Control of Licensed Products.

9.5.1 In each instance Contractor uses or causes to be used the Licensed Trademarks on products, packaging, collateral materials, documentation, websites, social media communications, or advertising, including Internet advertising for the Park, Contractor shall notify OPRD in writing of the specific use of the Licensed Trademarks, and shall deliver to OPRD samples of such use. In addition, Contractor shall deliver to OPRD samples of any subsequent alteration, modification or change to any previously provided samples.

9.5.2 Each use of the Licensed Trademarks by Contractor will comply with the following (collectively the “Quality Standards”):

• meet the specifications contained in Section 9.4 above;

• meet or exceed the quality of similar sample products provided by

Contractor to OPRD;

• meet or exceed standards of quality and performance generally accepted in the industry;

• comply with the OPRD branding guidelines and standards provided to

Contractor; and

• comply with all applicable laws, rules and regulations.

9.5.3 Contractor shall cooperate with OPRD to facilitate periodic review of Contractor’s use of the Licensed Trademarks, and of Contractor’s compliance with the Quality Standards. Contractor shall promptly correct and remedy any deficiencies in the use of the Licensed Trademarks in conformance to the Quality Standards upon reasonable written notice from OPRD.

9.5.4 Contractor may only use accurate reproductions of the Licensed Trademarks, and except for size, Contractor shall not alter the Licensed Trademarks in any manner, including style, proportions, colors or elements, nor shall Contractor animate, morph or otherwise distort the Licensed Trademark’s perspective or appearance.

Licensed Trademarks will appear alone for each Licensed Use and may not be combined with any other graphic or textual elements without prior written consent of OPRD. Contractor shall attach tags and labels to merchandise on which the Licensed Marks appear to identify it as a Licensed Use or “official gear” approved by OPRD.

9.5.5 Immediately upon receipt of notice from OPRD, which OPRD may give at any time and at its sole and complete discretion, Contractor shall cease use and distribution any Licensed Trademark in accordance with instructions included in such notice.

10. PERSONAL INFORMATION

10.1 Personal Information. Contractor shall not breach or permit breach of the security of any Personal Information, as that term is used in ORS 646A.602(11), that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control under this Contract. Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized Person, of any such Personal Information. Contractor shall not use, distribute or dispose of any Personal Information other than expressly permitted by OPRD, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

10.2 Report of Breach. Contractor shall report to OPRD, as promptly as possible, any breach of security, use, disclosure, theft, loss or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which Contractor receives access, possession, custody or control in the performance of this Contract.

11. INDEMNITY BY CONTRACTOR

11.1 Claims. Except to the extent of gross negligence on the part of OPRD, its officers, employees, and agents, Contractor shall defend, save, hold harmless and indemnify the State of Oregon and OPRD and their officers, employees and agents from and against all third-party claims, suits, actions, losses, damages, liabilities, costs) and expenses (collectively, “Claims”) of any nature whatsoever resulting from, arising out of, or relating to the activities of Contractor or its officers, employees, subcontractors or agents under this Contract, including, without limitation, unauthorized disclosure of Personal Information, professional malfeasance, infringement of intellectual property rights, intentional, willful or wanton wrongful acts, and acts outside the Scope of Services.

11.2 Legal Counsel. If Contractor is required to defend the State of Oregon or OPRD or their officers, employees or agents under Section 11.1 above, then Contractor shall select legal counsel reasonably acceptable to the Oregon Attorney General to act in the name of, or represent the interests of, the State of Oregon, OPRD or their officers, employees and agents. Such legal counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before such action or representation. Further, the State of Oregon, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the

State of Oregon’s sole discretion it determines that: (1) proposed counsel is prohibited from the particular representation contemplated; (2) counsel is not adequately defending the interests of the State of Oregon or its officers, employees and agents; (3) important governmental interests are at stake; or (4) the best interests of the State of Oregon are served thereby. Contractor’s obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense or that of its officers, employees and agents under Sections 11.2(1) and (2) above.

11.3 Damages to State Property and Employees. Contractor is liable for all Claims for personal injury, including death, damage to real property and damage to tangible and intangible personal property of the State of Oregon or any of its employees, subcontractors or agents resulting from, arising out of or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors or agents under this Contract.

11.4 CONTRACTOR IS NOT AUTHORIZED TO SETTLE OR COMPROMISE ANY CLAIM

REFERENCED IN THIS SECTION 11 WITHOUT THE EXPRESS WRITTEN CONSENT OF OPRD.

11.5 Contractor agrees that OPRD will not be responsible for the safekeeping of any of

Contractor’s property that is stored or kept on the Facilities or elsewhere at the Park.

Contractor agrees to not hold OPRD liable for any of Contractor’s property that is destroyed for any reason whatsoever, including, without limitation, by any fire, flood, earthquake or any other natural disaster.

12. LIMITATION OF LIABILITIES

STATE WILL NOT BE LIABLE TO CONTRACTOR FOR ANY LOST SAVINGS, OR PUNITIVE,

INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES.

13. INSURANCE

13.1 Contractor shall maintain insurance as set forth in Exhibit E.

13.2 Contractor is responsible for obtaining insurance to cover any and all of Contractor’s property that is stored or otherwise kept on the Facilities or elsewhere at the Park.

14. DEFAULT; REMEDIES

14.1 Default by Contractor. Contractor will be in default under this Contract if:

14.1.1 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;

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

14.1.3 Contractor commits any material breach or default of any covenant, warranty, obligation, certification or agreement under this Contract, fails to perform the Services within the time specified herein or any extension thereof, or so fails to pursue the Services 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) days after OPRD’s written notice, or such longer period as OPRD may specify in such written notice; or

14.1.4 Contractor has liquidated and delinquent debt owed to the State of Oregon.

14.2 OPRD’s Remedies for Contractor’s Default. In the event Contractor is in default under

Section 14.1 above, OPRD may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, without limitation:

14.2.1 termination of this Contract under Section 14.5.1 below;

14.2.2 initiation of an action or proceeding for damages, including actual damages, liquidated damages, specific performance or declaratory or injunctive relief;

14.2.3 exercise of its right of setoff, and withholding of amounts otherwise due and owing to Contractor, without penalty; and

14.2.4 undertaking collection by administrative offset, or garnishment if applicable, of all monies due for services to recover liquidated and delinquent debt owed to the State of Oregon. Offsets or garnishment may be initiated after Contractor has been given written notice if required by law.

14.3 Remedies Cumulative. The remedies set forth in Section 14.2 above are cumulative to the extent the remedies are not inconsistent, and OPRD 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 Section 14.1 above, then Contractor will be entitled to the same remedies as if this Contract was terminated pursuant to Section 14.5.1 below.

14.4 Default by OPRD. OPRD will be in default under this Contract if OPRD 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) days after Contractor’s written notice or such longer period as Contractor may specify in such written notice.

14.5 Termination.

14.5.1 OPRD’s Right to Terminate for Cause. In addition to any other rights and remedies OPRD may have under this Contract, OPRD may terminate this Contract immediately upon written notice by OPRD to Contractor, or at such later date as OPRD may establish in such written notice, if Contractor is in default under Section 14.1 above beyond any applicable notice and cure period.

14.5.2 Contractor’s Right to Terminate for Cause. Contractor may terminate this

Contract immediately upon written notice to OPRD, or at such later date as Contractor may establish in such written notice, if OPRD is in default under Section 14.4 above beyond any applicable notice and cure period.

14.6 Removal of Contractor’s Property. Except as specifically set forth in the Lease, upon the

Termination Date of this Contract, Contractor shall remove all of Contractor’s property from the Facilities and elsewhere in the Park, within thirty (30) days, unless OPRD expressly allows otherwise in a written notice. If Contractor fails to remove its Contractor’s property within the required timeframe, it becomes the property of OPRD to dispose of in a manner calculated to bring the greatest benefit to OPRD. Alternatively, OPRD may have the property removed and disposed of and may bill Contractor for the costs of removal and disposal.

15. TRANSITION PLAN PROCESS

In order to facilitate an orderly transition of operations at the Facilities after the Termination Date, Contractor shall comply with the Transition Plan Process attached as Exhibit F.

16. COMPLIANCE WITH LAW

16.1 Compliance with Law Generally. Contractor shall comply, and cause all subcontractors to comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Contract and the performance of the Services. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to this Contract:

• Titles VI and VII of the Civil Rights Act of 1964, as amended;

• Title V and Sections 503 and 504 of the Rehabilitation Act of 1973, as amended;

• the Americans with Disabilities Act of 1990 and ORS 659A.142, as amended;

• Executive Order 11246, as amended;

• the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act portion of the American Recovery and Reinvestment Act of 2009 (ARRA), including the Privacy and Security Rules found at 45 CFR Parts 160 and 164, as the law and its implementing regulations may be updated from time to time;

• the Age Discrimination in Employment Act of 1967, as amended, and the Age

Discrimination Act of 1975, as amended;

• the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended;

• Section 188 of the Workforce Investment Act (WIA) of 1998, as amended;

• ORS Chapter 659, as amended;

• all regulations and administrative rules established pursuant to the foregoing laws; and

• all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations.

These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to this Contract and required by law to be so incorporated. OPRD’s performance under this Contract is conditioned upon Contractor’s compliance with the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235 and 279B.270 which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

16.2 Compliance with Oregon Tax Laws.

16.2.1 Contractor shall, throughout the duration of this Contract, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this Section 16.2, “tax laws” includes the tax laws described in Section 8.1.5 above.

16.2.2 Any violation of Section 16.2.1 above constitutes a material breach of this

Contract. Further, any violation of Contractor’s warranty in Section 8.1.5 above that Contractor has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State also constitutes a material breach of this Contract. Any violation entitles OPRD 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, without limitation:

(A) termination of this Contract, in whole or in part;

(B) exercise of the right of setoff, or garnishment if applicable, and withholding of amounts otherwise due and owing to Contractor without penalty; and

(C) initiation of an action or proceeding for damages, including liquidated damages or specific performance, declaratory or injunctive relief. OPRD is entitled to recover any and all damages suffered as the result of Contractor’s breach of this Contract, including, without limitation, direct, indirect, liquidated, incidental and consequential damages, costs of cure and costs incurred in securing replacement Services.

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

16.3 Pay Equity. As required by ORS 279B.235, Contractor shall comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. Contractor’s compliance with this Section 16.3 constitutes a material element of this Contract and a failure to comply constitutes a breach that entitles OPRD to terminate this Contract for cause.

Contractor shall not prohibit any of Contractor’s employees from discussing the employee’s rate of wage, salary, benefits or other compensation with another employee or another person. Contractor shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits or other compensation with another employee or another person.

17. NOTICES

17.1 Addresses; General Notice Requirements.

17.1.1 Addresses. A Party’s “Address” means the address set forth beneath a Party’s signature on this Contract.

17.1.2 General Notice Requirements. Except as otherwise specifically set forth in this

Contract (including any Exhibit hereto), any notices, demands, deliveries or other communications required under this Contract will be made in writing and delivered by one of the methods set forth in Section 17.2 below to the other Party’s Address, unless one Party modifies its Address by notice to the other Party, given in accordance with Section 17.2 below.

17.2 Delivery.

Method of delivery When notice deemed delivered In person (including by messenger service) the day delivered, as evidenced by signed receipt

Email the day sent (unless sent after 5:00 p.m., P.T., in which case the email will be deemed sent the following business day)

US Mail (postage prepaid, registered or certified, return receipt requested) the day received, as evidenced by signed return receipt

Courier delivery (by reputable commercial courier) the day received, as evidenced by signed receipt

If the deadline under this Contract for delivery of a notice is a Saturday, Sunday or federal or State of Oregon holiday, such deadline will be deemed extended to the next business day.

18. GOVERNING LAW; VENUE AND JURISDICTION

18.1 Governing Law. This Contract is governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law.

18.2 Venue and Jurisdiction. Any claim, action, suit or proceeding between OPRD and

Contractor that arises from or relates to this Contract will be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon.

CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY CONSENTS TO THE IN

PERSONAM JURISDICTION OF SAID COURTS. In no event may this Section 18.2 be construed as: (1) 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, action, suit or proceeding; or (2) consent by the State of Oregon to the jurisdiction of any court.

19. MISCELLANEOUS PROVISIONS

19.1 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, books, documents, papers, plans, records of shipments and payments and writings of Contractor, whether in paper, electronic or other form, that are pertinent to this Contract (“Records”) in such a manner as to clearly document Contractor’s performance. Contractor acknowledges and agrees that OPRD and the Oregon Secretary of State’s Office and the federal government and their duly authorized representatives will have access to such financial records and other Records 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 and other Records for a minimum of six (6) calendar 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.

19.2 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 Services in the State of Oregon prior to entering into this Contract.

19.3 Force Majeure. Neither Party is responsible for delay or default caused by an unallocated risk such as fire, riot and acts of God (including natural disasters) or war, act or order by public authority closing the Park, or by any other cause not within the control of the Party whose performance is interfered with, and, which by the exercise of reasonable diligence, the Party is unable to prevent. Contractor shall make all good faith efforts to remove or eliminate the cause of any such delay or default and shall, upon the cessation of such cause, resume performance of Contractor’s obligations hereunder with all reasonable diligence.

19.4 Survival. All rights and obligations cease upon the Termination Date, except for the rights and obligations and declarations which expressly or by their nature survive expiration or earlier termination of this Contract, including, without limitation, this Section 19.4, and provisions regarding Contract definitions, warranties and liabilities, independent contractor status and taxes and withholding, maximum compensation, Contractor’s duties of confidentiality, ownership and license of intellectual property, confidentiality and non-disclosure, Contractor’s representations and warranties, control of defense and settlement, remedies, return of OPRD property, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third-party beneficiaries, waiver, headings and integration.

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

19.6 No Third-Party Beneficiaries. OPRD 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 may 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.

19.7 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 otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the Parties will be construed and enforced as if this Contract did not contain the particular term or provision held to be invalid.

19.8 Merger Clause; Waiver. This Contract and attached Exhibits, and the Lease, 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 will bind the 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, will be effective only in the specific instance and for the specific purpose given. The failure of OPRD to enforce any provision of this Contract in one instance will not constitute a waiver by OPRD of its right to enforce that or any other provision.

19.9 Amendments. OPRD may amend this Contract to the extent permitted by applicable statutes and administrative rules. No amendment to this Contract is effective unless it is in writing signed by the Parties, and has been approved as required by applicable law.

19.10 Counterparts. This Contract may be executed in several counterparts, all of which when taken together constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of this Contract so executed constitutes an original.

19.11 Oregon False Claims Act. Contractor acknowledges the Oregon False Claims Act, ORS

180.750 to 180.785, applies to any action by Contractor pertaining to this Contract, including the procurement process relating to this Contract, that constitutes a “claim” (as defined by ORS 180.750(1)). By its execution of this Contract, Contractor certifies the truthfulness, completeness and accuracy of any statement or claim it has made, it makes, it may make or causes to be made that pertains to this Contract. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes 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. Contractor understands and agrees that any remedy that may be available under the Oregon False Claims Act is in addition to any other remedy available to OPRD under this Contract or any other provision of law.

19.12 Certifications. The individual signing on behalf of Contractor hereby:

19.12.1 Certifies and swears under penalty of perjury to the best of the individual’s knowledge that:

(A) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding;

(B) Contractor is authorized to act on behalf of Contractor, Contractor has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, that Contractor is not in violation of any Oregon tax laws and that for a period of no fewer than six (6) calendar years preceding the Effective Date, Contractor faithfully has complied with: (i) all tax laws of this State, including, without limitation, ORS

305.620 and ORS chapters 316, 317 and 318; (ii) any tax provisions imposed by a political subdivision of this State that applied to Contractor, to Contractor’s property, operations, receipts or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) 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 (iv) any rules, regulations, charter provisions or ordinances that implemented or enforced any of the foregoing tax laws or provisions;

(C) Contractor is an independent contractor as defined in ORS 670.600; and

(D) the supplied Contractor tax identification numbers are true and accurate;

19.12.2 Certifies that, to the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against any disadvantaged business enterprise, minority-owned business, woman-owned business, business that a service-disabled veteran owns or emerging small business certified under ORS 200.055 in obtaining any required subcontracts;

19.12.3 Certifies that Contractor has a written policy and practice that meets the requirements, described in ORS 279A.112, of preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of this Contract, to maintain the policy and practice in force during the entire Contract term; and

19.12.4 Certifies that Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets…