Trade Services Contract- Attachment F.pdf

TRADE SERVICES CONTRACT

{01917577-01504398;2}

This Trade Services Contract (this “Contract”) is between:

Bend Park and Recreation District (the “District”), an Oregon special district

799 SW Columbia Street

Bend, OR 97702 and

<contractor’s name> (“Contractor”)

<street address>

<city, state zip code>

The District issued <Informal Request for Quotes (“Request for Quotes”)/<Informal> Request for

Proposals (“<I->RFP”)/<Informal> Invitation to Bid (“<I->ITB”)> dated <Month DD, YYYY> seeking

<quotes/proposals/bids> for <project/solicitation name>. Contractor submitted a <quote/proposal/bid> dated <Month DD, YYYY> in response to the District’s <Request for Quotes/RFP/ITB> offering to provide certain trade services to District (“<Quote/Proposal/Bid>”). Contractor is <one of> the successful

<offeror/proposer/bidder<s>>.

The District and Contractor now desire to memorialize the terms and conditions pursuant to which

Contractor will perform, and the District will pay for, the Work (as defined below) to complete the

Project as required by this Contract.

For the mutual exchange of promises contained in this Contract, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, District and Contractor agree as follows:

Article 1

PROJECT SPECIFIC PROVISIONS

1.1 Project

This Contract is based upon the following initial information and assumptions (the “Project”):

(a) Project name: <insert project name>

(b) Project address: <insert street address, taxlot, or other unique project location identifier>

(c) Project schedule: the project shall commence upon <Month DD, YYYY/the District’s written notice to proceed> and be completed no later than <Month DD, YYYY>.

(d) Project description: <insert a brief description of the entire Project>.

1.2 Contract Term

This Contract shall be effective upon the Effective Date (as defined below) and the term shall continue through <Month DD, YYYY>.

{01917577-01504398;2} TRADE SERVICES CONTRACT

Template 09.08.2023

1.3 Contract Price

Contractor will be compensated at the rates and/or unit prices described in the attached

Contractor’s <quote/bid/proposal> (see section 1.4), but in no event will total compensation under this Contract exceed <$XX,XXX.XX> (the “Contract Price”).

1.4 Contract Documents

For purposes of this Contract, the “Contract Documents” consist of the following documents listed in order of precedence for the purpose of determining conflicting provisions in the

Contract Documents except that in the event of overlap or inconsistency between the terms of the Contract Documents, the term that provides a better quality or quantity of service to the

District shall control. To the extent that any terms of a Contractor’s document conflicts with terms of this Contract, such terms are void and are expressly and wholly subject to the terms of this Contract.

(1) This Contract;

(2) <The District’s <Request for Quotes/Request for Proposals/Invitation to Bid>, including all Addenda, issued <Month DD, YYYY>> incorporated by reference as Exhibit A;

(3) <Contractor’s <Quote/Proposal/Bid> dated <Month DD, YYYY> submitted in response to the District’s <Request for Quotes/RFP/ITB> incorporated by reference as Exhibit B;

<and

(4) <document name> attached as Exhibit C>.

Article 2

STATEMENT OF WORK

2.1 Scope of Work

Contractor shall provide all tools, equipment, apparatus, facilities, labor, material, water, heat, utilities, transportation, and other services necessary for proper execution and completion of

Contractor’s portion of the Project (collectively, the “Work”), whether temporary or permanent, and whether or not incorporated or to be incorporated in the Work. Contractor shall provide the

Work in a good and workmanlike manner, in accordance with the terms and conditions of this

Contract, and in accordance with all applicable federal, state, or local laws or ordinances and

District rules and policies. The Work includes, without limitation, the following:

(a) <insert scope of work>

2.2 Highest Standards

In addition to the minimum required specifications, pursuant to ORS 279B.055(2)(c), the

Contractor shall meet the highest standards prevalent in the industry or business most closely involved in providing the goods and/or services at all times for the duration of this Contract.

Article 3

PROVISIONS CONCERNING THE WORK

3.1 Public Works

(a) In accordance with Oregon Administrative Rules (“OAR”) 137-049-0140(1), this Contract is a contract for public works (“public works” as defined under Oregon Revised Statutes (“ORS”) 279C.800) and not a public improvement (“public improvement” as defined under ORS 279A.010).

(b) Pursuant to ORS 279C.830(2)(a), Contractor and every subcontractor (references herein to contractor shall include all lower tier subcontractors) shall have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt under ORS 279C.836 (4), (7), (8) or (9).

(c) Contractor shall require that in every subcontract (references herein to subcontracts shall include all lower tier subcontracts) awarded in connection with this Contract that the subcontractor have a public works bond filed with the Construction Contractors Board before starting work on the Project, unless the subcontractor is exempt under ORS 279C.836 (4), (7), (8) or (9).

3.2 Contractor’s License

Throughout the term of this Contract, Contractor and each subcontractor shall be licensed with the Oregon Construction Contractors Board or by the Oregon Landscape Contractors Board, as applicable.

3.3 Verification of Field Conditions

By commencing with the Work, Contractor represents to the District that Contractor: (1) is familiar with the Project site and has reviewed all analyses, studies, and test data available to

Contractor concerning the conditions of the Project site; and (2) inspected the Project site and satisfied itself as to the condition thereof, including all structural, surface, and observed subsurface conditions.

3.4 Reporting Inconsistencies

Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations; however, Contractor shall promptly report any nonconformity it discovers in writing to the District.

Contractor shall be liable to District for damages if it fails, in the exercise of normal diligence, to recognize any error, inconsistency, or omission in the Contract Documents or any difference between field conditions and the Contract Documents.

3.5 Acts and Omissions of Contractor’s Employees

Contractor shall at all times enforce strict discipline and good order among its subcontractors and employees and will not employ or work any unfit person, or anyone not skilled in the tasks assigned to that person. Contractor shall not employ any person whom the District may deem incompetent or unfit on the Project except with the prior written consent of District. The District may require Contractor to permanently remove unfit persons from the Project site. Contractor shall be responsible to the District for acts and omissions of Contractor’s employees, subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of Contractor or any subcontractor.

3.6 Clean Up

Contractor shall keep the Project site and surrounding area free from accumulation of waste materials, construction debris, and rubbish caused by performance of the Work under this

Contract. At completion of the Work, Contractor shall remove waste materials, rubbish, Contractor’s tools, construction equipment, machinery, and surplus material from the Project site and surrounding area.

3.7 Ownership of Contract Documents

All copies of drawings, specifications, other incidental architectural and engineering work, and other Contract Documents furnished by the District (those documents, the “Construction

Documents”), including those in electronic form, are the property of the District. Contractor shall not use the Construction Documents in other work and, with the exception of signed sets of Construction Documents, Contractor shall return all Construction Documents to the District upon the District’s request. Neither Contractor, any subcontractor, or supplier, will own or claim a copyright in the Construction Documents. The District hereby grants Contractor, its subcontractors, and suppliers a limited license to use applicable portions of the Construction

Documents in the execution of their Work under this Contract.

3.8 Prevailing Wage Rates

If the Contract Price exceeds $50,000, or the District determines in its sole discretion that this Contract is otherwise subject to the Oregon Bureau of Labor and Industries (“BOLI”) prevailing wage rates under ORS 279C.800 to 279C.870, Contractor and every subcontractor will comply with ORS 279C.800 to 279C.870. Pursuant to ORS 279C.840, the hourly rate of wage of any worker employed in the performance of any part of a project subject to ORS 279C.800 to 279C.870 shall not be less than the "prevailing rate of wage" for an hour's work in the same trade or occupation in the locality where such labor is performed, in accordance with ORS 279C.838. The existing 'prevailing rate of wage' as published by BOLI are the Prevailing Wage Rates for Public Works Contracts in Oregon effective as of the date the Project was first advertised, and the Prevailing Wage Rate Amendment effective as of the date the Project was first advertised, if any. Prevailing wage rates may be found at the following website:

http://www.oregon.gov/boli/WHD/PWR/Pages/pwr_state.aspx, and are incorporated herein by this reference.

3.9 Contractor’s Representations and Warranties

Contractor represents and warrants to the District that:

(1) Contractor has the power and authority to enter into and perform this Contract.

http://www.oregon.gov/boli/WHD/PWR/Pages/pwr_state.aspx

(2) This Contract, when executed and delivered, is a valid and binding obligation of Contractor, enforceable in accordance with its terms.

(3) Any Goods/Items/Equipment/Components/Hardware/Software/Intellectual Property Rights, etc. delivered to/granted to the District under this Contract, shall be provided to the District free and clear of any and all restrictions on or conditions of use, transfer, modification, or assignment, and shall be free and clear of any and all liens, claims, mortgages, security interests, liabilities, charges, and encumbrances of any kind.

(4) Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the date of this Contract, faithfully has complied with:

(A) all tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

(B) 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;

(C) any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

(D) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the forgoing tax laws or provisions.

3.10 Safety

(a) Contractor shall take all necessary precautions for the safety of its employees, its subcontractors, the District’s employees, and the public, and protection of the Work and of adjoining property, and will comply with all applicable provisions of federal, state and local safety laws and building codes and the District’s fire insurance carrier’s requirements to prevent accidents, injury to persons, loss of life, and damage to property.

(b) Contractor shall not permit any structure to be loaded excessively.

(c) For work at an existing facility operated by the District, Contractor shall obtain prior approval from the District as to time and duration of activities prior to blasting, welding, torch cutting, building of fires, or making changes in the process water, city water, or fire protection systems.

(d) Contractor shall properly erect and maintain all necessary safeguards for the protection of its employees, subcontractors, the District, the District’s employees, and the public. Contractor will post danger signs and markers warning against hazards created by features of the Work.

(e) Safety and accident reports shall be submitted in accordance with federal, state, and local regulations. Contractor shall inform the District of any accidents within three days after occurrence, unless federal, state, or local law, rule, regulations, code, or policy require notice sooner.

(f) The District and its architect or engineer are not responsible for safety, safety procedures, safety analysis of any condition on the Project, or coordinating any safety efforts or programs of any contractor or subcontractor.

Article 4

GENERAL PROVISIONS

4.1 Compliance with Applicable Law

Throughout the term of this Contract, Contractor shall comply with all laws, rules, codes, regulations, policies, and applicable requirements imposed by all authorities having jurisdiction over the Work.

4.2 Payment Terms

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

(1) Contractor shall not submit, and the District shall not be liable for: (1) any invoice(s) that exceed the Contract Price, and (2) any charge that exceeds the unit prices or other rates agreed upon in section 1.3.

(2) Regardless of any provisions in this Contract to the contrary, District reserves the right to withhold up to five percent of the Contract Price until the Work is complete, accepted, and/or received by District.

4.3 Independent Contractor

Contractor is an independent contractor, and not an employee, of the District. Contractor is free from direction and control over the means and manner of performing the Work, subject only to the right of the District to specify the desired results, and the District reserves the right to evaluate the quality of the Work. The District will not withhold any taxes from any payments made to Contractor, and Contractor will be responsible for paying all taxes arising out of or resulting from Contractor’s performance of the Work, including, without limitation, income, social security, workers’ compensation, and employment insurance taxes. Contractor is solely responsible for obtaining all licenses, approvals, and certificates necessary or appropriate to perform the Work, unless otherwise provided for in this Contract. This Contract does not create a joint venture, partnership, or agency relationship between the District and Contractor.

Contractor does not have the authority to bind the District to any Contract or other agreement or represent to any person that Contractor is an agent of the District. Contractor has the authority to hire other persons to assist Contractor in performing the Work (and has the authority to fire such persons). The District shall neither have nor exercise any control or direction over the means or manner by which Contractor or its employees under its control shall perform their work and other functions.

4.4 Indemnification and Hold Harmless

Contractor agrees to hold harmless, indemnify, and defend the District, and its officers, directors, employees, agents, volunteers, and contractors, from and against all claims, suits, actions, losses, damages, liabilities, costs, and expenses of any nature (including, without limitation, reasonable attorneys’ fees and settlement costs) resulting from, arising out of, or related to:

(1) any misrepresentation, breach or alleged breach of any representation, warranty, agreement, or obligation under this Contract by Contractor or its affiliates or subcontractors;

(2) any actual or alleged performance or nonperformance of the Work;

(3) any claim or liability arising from any contract between Contractor and any third party, whether or not made to effectuate the purposes of this Contract, and regardless of whether Contractor enters into such contracts as the District’s agent or as principal;

(4) any actual or alleged violation of any applicable law by Contractor;

(5) taxes, together with interest and penalties, that are Contractor’s responsibility under this Contract;

(6) infringement or alleged infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other personal or proprietary right of a third party in connection with the Work; and

(7) any other claim related to the Work and due to any act, negligence, willful misconduct, or omission by Contractor or its affiliates or subcontractors or their respective officers, directors, employees, suppliers, subcontractors, agents, successors, or affiliates.

4.5 Insurance

(a) Insurance Coverages. Contractor shall obtain and maintain throughout the term of this Contract, the following insurance coverages:

(1) General Liability. Commercial general liability insurance (occurrence form), including coverage for bodily injury, property damage, independent contractors, contractual liability (covering Contractor’s indemnification obligations under this Contract), personal injury, products and completed operations, and coverage for explosion, collapse, and underground hazards with limits of not less than $2,000,000 per occurrence and $4,000,000 in the aggregate. Contractor’s liability insurance shall be primary and will not seek contribution from any insurance or self-insurance maintained by the District.

(2) Auto Liability. Applicable to any automobile assigned to or used in the performance of the Work, whether owned, hired or non-owned, with a limit of liability of not less than $1,000,000 combined single limit per accident.

(3) Workers’ Compensation. Statutory Limits. Contractor 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 Contractor or Contractor’s employees and subcontractors.

(A) Contractor shall include a Maritime Coverage Endorsement if watercraft is used in performing the Work and a U.S. Longshore and Harbor Workers Compensation Act Endorsement if the Work is performed on or in close proximity to navigable waterways.

(b) Additional Insured. Contractor shall name the District, its officers, employees, and agents as additional insureds on all liability policies other than workers’ compensation policies.

(c) Notice. There shall be no cancellation, material change, potential exhaustion of aggregate limits, or non-renewal of insurance coverage(s) without 30-days written notice from Contractor, or Contractor’s insurer(s), to District. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of this Contract and shall be grounds for immediate termination of this Contract by District.

(d) Contractor shall, within five days after execution of this Contract and prior to commencement of any Work, furnish the District with original certificates of insurance, including the additional insured and all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause), and a copy of the declarations and endorsement page of the commercial general liability policy, listing all policy endorsements. Contractor shall deliver new certificates, endorsements, and declarations and endorsement pages to the District within five days after replacement or renewal of any required insurance policy. The District reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this section, at any time. Failure to obtain the required documents prior to the Work beginning shall not waive Contractor’s obligation to provide them.

Any failure of Contractor to provide evidence of required insurance shall constitute a material breach of this Contract and shall be grounds for immediate termination of this Contract by District.

(e) Contractor understands that the stated limits of liability are the minimum acceptable by the District, Contractor further understands it is the responsibility of Contractor to determine the appropriate limits of liability in excess of the District’s minimum acceptable limits to meet Contractor’s risk.

(f) If Contractor maintains broader coverage and/or higher limits than the minimums shown above, the District requires and shall be entitled to the broader coverage and/or higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the District.

4.6 Force Majeure

Neither party shall be responsible for any nonperformance or delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, government-imposed restrictions, or any other cause which is beyond the party’s reasonable control (each a

“Force Majeure Event”). Such party shall, however, promptly notify the other party of any Force

Majeure Event and shall make all reasonable efforts to perform such obligation as soon as reasonably possible after the end of such cause for delay or nonperformance. No Force Majeure

Event shall commence or be deemed to have occurred unless, within ten days after the event constituting the Force Majeure Event, the party claiming such delay has provided written notice to the other specifying the circumstances that the claiming party contends constitutes a Force

Majeure Event. Notwithstanding the foregoing, the District may terminate this Contract upon written notice to Contractor after reasonably determining that the Force Majeure will likely prevent successful performance of this Contract.

4.7 Termination

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

(b) Termination for Convenience. The District may, at its sole discretion, terminate this Contract, in whole or in part, upon 30 days’ written notice to Contractor.

(c) Termination by District. The District may, at its sole discretion, terminate this Contract, immediately upon written notice to Contractor, 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 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 necessary goods and/or services to complete the Project by the District under this Contract, or the District’s payment for the Project from the planned funding source, is prohibited;

(3) Contractor is in default of this Contract beyond all applicable notice and cure periods; or

(4) as otherwise provided in this Contract.

(d) Termination by Contractor. Contractor may terminate this Contract if the District fails to make any payment to Contractor within 30 days after written notice from Contractor that such payment is past due.

(e) Effect of Termination. Upon receipt of written notice of termination: (1) Contractor shall stop all performance under this Contract as directed by the District, (2) the District shall pay Contractor the fees and expenses for the portions of the Work completed prior to such termination (but shall not be responsible for any lost profit or other consequential damages), and (3) Contractor shall deliver to the District all work product, documents, information, works-in-progress, and other property that are or would be the property of the District had the Contract been completed.

4.8 Events of Default

The occurrence of any of the following events shall constitute a default by Contractor under this

Contract:

(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;

(2) Contractor no longer holds any license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained a replacement license or certificate within 14 days after receipt of notice of the default from the District; or

(3) Contractor fails to perform any covenant, warranty, or other obligation under this Contract, including failure to perform any obligation within the time specified or any extension of that time, and Contractor fails to cure such nonperformance within 14 days after receipt of written notice from the District; provided, however, if the default is of such a nature that it cannot be completely remedied within the 14-day cure period, Contractor shall not be in default if Contractor begins correction of the default within such 14-day period and diligently proceeds in good faith to effect the remedy as soon as practicable.

4.9 Non-Discrimination

Contractor 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 Contract.

4.10 Warranty

(a) Contractor will perform the Work to the best of Contractor’s ability, diligently, and without delay, in good faith, in a professional manner in accordance with the highest professional standards of the industry, free from any material errors, omissions, or defects, and in strict compliance with the terms and conditions of this Contract.

(b) For goods and materials, Contractor agrees to the following: Contractor (1) warrants that Contractor has title to the goods and materials, free and clear of all liens, mortgages, pledges, security interests, reservations, restrictions, conditions, claims, and/or any other encumbrances (collectively, “Encumbrances”); (2) will sell, transfer, convey, and assign the goods and materials to the District free and clear of all Encumbrances; (3) the goods and materials are new, unless otherwise required or permitted by this Contract, unblemished, fit for the District’s intended use, in good repair and operating condition, and free from all defects; (4) will assign any manufacturer’s warranties to District; and (5) if there is no manufacturer’s warranty, Contractor will warrant the goods and materials against all defects for a period of one-year from date of delivery to the District.

(c) Contractor will inspect any warranty claim within ten days after receipt of written notice of such claim from District. If validated by Contractor’s inspection, Contractor will commence warranty work within ten days after the inspection and thereafter diligently complete the warranty work.

If Contractor fails to timely perform the inspection, or timely commence warranty work following validation, District may cause the warranty work to be performed by third parties and charge the costs to Contractor.

4.11 Continuing Obligation

Notwithstanding the expiration date of this Contract, Contractor is obligated to fulfill its responsibilities until all warranty, guarantee, maintenance, and parts availability requirements have completely expired.

4.12 Identification of Employees

While on District property, Contractor shall ensure that its employees wear identifying uniforms or other designation of identity (e.g. identification badge, hat, and/or coat with Contractor’s logo and/or name).

Article 5

PUBLIC CONTRACTING REQUIREMENTS

5.1 Tax Law Compliance

(a) Contractor must, throughout the term of this Contract and any extensions, 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, “tax laws” includes all the provisions described in section 3.9(4)(A) through (D) of this Contract.

(b) Any violation of section 5.1(a) shall constitute a material breach of this Contract. Further, any violation of Contractor’s warranty, in section 3.9(4), that Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state also shall constitute a breach of this Contract. Any violation shall entitle the District to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination is Contract, and to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to:

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

(2) exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to District’s setoff right, without penalty; and

(3) initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief, further, the District shall be entitled to recover any and all damages suffered as the result of Contractor’s breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement services, goods, or contractor(s).

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

5.2 Prompt Payment, Contributions, Liens, Withholding

As required by ORS 279B.220, Contractor shall: (1) make payment promptly, as due, to all persons supplying labor, services, or materials related to the Work, additionally, if Contractor fails, neglects or refuses to pay promptly a person’s claim for labor, services, or material, District may in its sole discretion pay the amount of the claim to the claimant and charge the amount of the payment against funds due or to become due to Contractor by reason of this Contract

(paying a claim in the manner authorized in this section does not relieve Contractor or

Contractor’s surety, if any, from obligation with respect to an unpaid claim); (2) pay all contributions or amounts due the Industrial Accident Fund from Contractor or Contractor’s subcontractor(s), if any, incurred in the performance of this Contract; (3) not permit any lien or claim to be filed or prosecuted against the District on account of any labor or material furnished;

and (4) pay to the Department of Revenue all sums withheld from employees under ORS

316.167.

5.3 Salvaging, Recycling, Composting or Mulching Yard Waste Material

As required by ORS 279B.225, if the scope of this Contract requires lawn or landscape maintenance, Contractor shall salvage, recycle, compost or mulch yard waste material at an approved site, if feasible and cost-effective.

5.4 Payment for Medical Care and Providing Workers’ Compensation

As required by ORS 279B.230, Contractor shall promptly, as due, make payment to any person, co-partnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of

Contractor, of all sums that Contractor agrees to pay for the services and all moneys and sums that Contractor collected or deducted from the wages of employees under any law, Contract or agreement for the purpose of providing or paying for the services.

5.5 Hours of Labor; Compliance with Pay Equity Provisions; Employee Discussions of Rate of Pay or Benefits

(a) As required by ORS 279B.235(1)(a), Contractor shall not employ an employee for more than ten hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or when the public policy absolutely requires otherwise, and in such cases, Contractor shall pay the employee at least time and a half pay for: (1) all overtime in excess of eight hours in any one day or 40 hours in any one week if the work week is five consecutive days, Monday through Friday;

or all overtime in excess of ten hours in any one day or 40 hours in any one week if the work week is four consecutive days, Monday through Friday; and (2) all work the employee performs on Saturday and on any legal holiday specified in ORS 279B.020.

(b) As required by ORS 279B.235(1)(b), Contractor shall comply with the prohibition set forth in ORS

652.220. Contractor’s compliance with ORS 652.220 is a material element of this Contract, Contractor’s failure to comply is a breach that entitles the District to terminate this Contract for cause.

(c) As required by ORS 279B.235(1)(c), 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 and 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.

(d) As required by ORS 279B.235(2), Contractor shall give notice in writing to employees who perform any work in relation to this Contract, either at the time of hire or before work begins on this Contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that Contractor may require the employees to work.

5.6 Preference for Recycled Materials

As defined in ORS 279A.010 and in accordance with ORS 279A.125, to the maximum extent economically feasible, comparable to nonrecycled products, available, and meeting applicable standards, Contractor shall in the performance of this Contract, use recycled material, recycled oil, recycled paper, recycled PETE, and recycled product.

Article 6

MISCELLANEOUS

6.1 Entire Agreement

The Contract Documents contain the entire understanding of the parties regarding the subject matter of this Contract and supersede all prior and contemporaneous negotiations and agreements between the parties, whether written or oral, with respect to the subject matter of this Contract. This Contract 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

If any provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, in any respect or circumstance, the validity of the provision in any other respect or circumstance, and the validity of the other provisions of this Contract, shall not be impaired. It is the intent that this Contract be enforced to the maximum extent permitted by applicable law.

6.3 Waiver

Failure of either party to enforce any provision of this Contract shall not constitute waiver of the right to require such performance in the future nor of the right to enforce any other provision of this Contract. Payment by the District shall not constitute the District’s waiver of any rights under this Contract.

6.4 Time

(a) Time is of the essence in the performance of all obligations under this Contract. Contractor shall at all times carry on the Work diligently, without delay, and punctually fulfill all requirements of the Work. Further, Contractor shall proceed expeditiously with adequate forces and will achieve substantial and/or final completion as may be specified in this Contract.

(b) The District may grant Contractor an extension upon Contractor’s written request demonstrating that circumstances beyond the control and without the fault or negligence of Contractor or its subcontractors justify delay. Such occurrences may include industry-wide labor dispute, fire, unusual and extended delays in deliveries, unavoidable casualties, adverse weather conditions not reasonably anticipated, or other occurrences that the District determines it its sole discretion may justify delay.

6.5 Amendments or Change Orders

This Contract may only be changed by written instrument, signed by both parties.

6.6 Assignment

Except for portions of the Services performed by Contractor’s employees or subcontractors approved by the District, this Contract is not assignable or transferable by Contractor 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 shall be 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 Contract. The termination of this Contract, regardless of how it occurs, will not relieve a party of obligations that have accrued before the termination. All Contractor representations, warranties, covenants, and obligations contained in this Contract (including, without limitation, Contractor’s indemnity obligations) will survive the termination of this Contract.

6.8 Governing Law; Venue

This Contract shall be interpreted and administered under the laws of the State of Oregon without regard to conflict of laws principles. Any claim or dispute that arises from or relates to this Contract shall 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 shall be brought and conducted solely and exclusively within the United

States District Court for the District of Oregon.

6.9 Attorney’s Fees

If any arbitration or litigation is instituted to interpret, enforce, or rescind this Contract, 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.

6.10 Interpretation

As used in this Contract, 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. The titles, captions, or headings of the articles and sections in this Contract are inserted for convenience of reference only and are not intended to be a part, or to affect the meaning or interpretation, of this Contract.

6.11 Effectiveness and Date

This Contract will become effective when all parties have signed it. The date of this Contract will be the date this Contract 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 Contract 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 Contract.

<(signatures on following page)/(signatures to immediately follow)>

The parties are signing this Contract 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

Contract, represent that they have authority to execute this Contract, and agree that the applicable party will be bound by the terms and conditions of this Contract once fully executed.

CONTRACTOR

By:

Name:

Title:

Date:

BEND PARK AND RECREATION DISTRICT

By:

Name:

Title:

Date: