C2023177 RFP Arts Commission Communication Cntrctr Final 5.16.2023~3.pdf

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REQUEST FOR PROPOSAL (“RFP”)

Oregon Business Development Department

RFP C2023177 Arts Commission Communication Contractor

OregonBuys Open Market Bid S-12300-00006899

Proposal due date: 02 June 2023, 12:00 P.M. (Noon) Pacific Time

Single Point of Contact (SPC):

Gail Sullivan, Procurement and Contract Specialist 3 Oregon Business Development Department (Business Oregon) 775 Summer St., NE, Suite 200 Salem, OR 97301-1280

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1.0 SOLICIATION INFORMATION AND REQUIREMENTS

1.1 GENERAL INFORMATION

Oregon Business Development Department (“Business Oregon” or “Department”) is seeking services from a Communication Contractor to research opportunities for public relations and business communication programs and services to be supported through the Oregon Arts Commission (“Arts Commission”).

Background The Arts Commission was established in 1967 to foster the arts in Oregon and ensure their excellence.

Nine Arts Commissioners, appointed by the Governor, determine policies, establish long-range plans, and review applications to grants programs to determine funding levels. In 1993, the Arts Commission became a division of the Oregon Business Development Department in recognition of the expanding role the arts play in the broader social, economic, and educational arenas of Oregon communities. In 2003, the Oregon legislature moved the operations of the Oregon Cultural Trust to the Arts Commission, making use of the Arts Commission's expertise in grant-making, arts and cultural information and community cultural development. The Arts Commission is supported with general funds appropriated by the Oregon legislature, federal funds from the National Endowment for the Arts, and funds from the Oregon Cultural Trust.

The mission of the Arts Commission is to enhance the quality of life for all Oregonians through the arts by stimulating creativity, leadership, and economic development.

The Arts Commission annually awards operating support grants to arts organizations of all fiscal sizes across the state with additional project-based grants awarded through the Arts Build Communities, Arts Learning and Arts Access programs. The Arts Commission also offers Career Opportunity and Fellowship awards to individual artists and administers Oregon’s Percent for Art program as well as the Art in the Governor’s Office exhibition program.

In partnership with the National Endowment for the Arts (NEA), the Arts Commission coordinates an annual Poetry Out Loud competition for Oregon high school students. As funding allows, the Arts Commission also coordinates the Governor’s Arts Awards.

In fiscal year 2022, the Arts Commission awarded $3.76 million to 255 arts organizations and 57 individual artists through its annual programs.

1.2 DESCRIPTION OF SERVICES NEEDED

Business Oregon is seeking services from a communications contractor (“Proposer”) to research and provide communication and outreach expertise related to Arts Commission funding, programs, services, events, and impact related to projects supported by the Arts Commission.

Proposers must have excellent written and verbal communications skills and a minimum of three years professional communication experience, including experience and expertise in communicating stories and professional pieces related to Oregon arts and culture.

Responsibilities include, but are not limited to: maintaining a public relations calendar; researching and drafting impact stories, news releases and social media content; conducting interviews; posting approved content on social media platforms; becoming proficient on the Arts Commission’s email marketing platform; creation of a monthly eblast to the Artist Registry list; and, photography/video services as requested and agreed to by Business Oregon.

http://www.nea.gov/ http://www.culturaltrust.org/ http://www.culturaltrust.org/

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1.3 PROPOSED TASKS AND OTHER SERVICES

• Proposer shall provide communication and outreach to include, but not be limited to, various media including social and eblasts as well as content creation for websites and other platforms related to Arts Commission funding, programs, services, events, and impact related to projects supported by the Arts Commission.

• Proposer shall develop and maintain an Arts Commission public relations calendar to be used internally for planning, communication, and outreach related to grant projects and visibility opportunities.

• Proposer shall attend regular virtual check-in meetings and be available to the Arts Commission Communications Manager on mutually agreed to dates/times.

• Proposer shall research and draft impact stories, news releases and social media content, conducting interviews as needed to further the Arts Commission’s vision and mission.

• Proposer shall post approved content as directed by the Arts Commission on social media platforms.

• Proposer shall become proficient in working on the Arts Commission’s email marketing platform.

• Proposer shall compile and edit resources and opportunities for artists via a monthly eblast to the Artist Registry list.

• Proposer shall provide photography and video services as requested and agreed to by Business Oregon.

Other Services Upon request, Proposer will provide services for additional communication support related to the Arts Commission’s programs and activities.

In addition to negotiations over the tasks proposed in this RFP, Business Oregon reserves the right to amend the resulting contract to include additional time and reasonably related services, dependent on need and approved budget, without conducting further solicitation activities.

All proposed public relations and communication services and work will be subject to review and approval by the Arts Commission and will become property of Business Oregon.

1.4 EVALUATION PROCESS AND AWARD

The selection process will be administered in accordance with the authority and procedures in OAR Chapter 123, Division 6 and OAR 137-047-261. Proposals received on time will be reviewed against any Pass/Fail criteria. Proposals meeting those criteria will be forwarded to an evaluation committee that will independently score each Proposal according to the scored criteria set forth in Section 2.

Without limiting the possibilities allowed under OAR 137-047-0261, Business Oregon may, at any time in its sole discretion, (a) provide notice to a Proposer of selection for Contract negotiation and possible award; (b) gather more information for evaluation; (c) provide notice to a Proposer(s) of non-selection; or (d) provide notification to Proposer(s) that the RFP is cancelled (and either that the RFP may be resolicited or that Business Oregon intends to take no further action with respect to the RFP).

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Business Oregon reserves the right to employ any of the procedures allowed by Oregon Administrative Rule 137-047-0261, such as additional competitive steps or Proposals, modified or additional selection criteria, interviews, competitive simultaneous discussions or negotiations, etc.

Information or issues revealed by a Proposer’s questions or Proposal, may, in Business Oregon's sole discretion, trigger such modifications or further steps. If there are further steps beyond the initial Proposal and scoring, the scoring results from the first step and any subsequent step will be added together.

Business Oregon reserves the right to reject any or all Proposals for good cause if it is in the public interest, and is not liable for any costs a Proposer incurs while preparing or presenting its Proposal or during further evaluation stages.

Business Oregon anticipates awarding a single contract to deliver the services needed. Preference may be given to proposers with prior arts nonprofit or public relations experience. This is an intermediate procurement Request for Proposal under ORS 297B.070. Please consider submitting a Proposal to provide these services.

2.0 SCORED CRITERA; INFORMATION REQUESTED FROM PROPOSERS

2.1 Scoring

The combined responses to the criteria in each subsection of this Section 2.0 must not exceed the allowable page limit described in Section 5.0 of this RFP. Business Oregon will consider the pages up to that allowable number and discard all pages in excess of the allowable number.

In addition to the scored criteria in this Section 2.0, Proposers must also submit contact information for three references who can address proposer’s skill in relation to this RFP and in what capacity they can speak to the skills.

2.2 Qualifications – 30 Points Maximum

Please submit answers to each of the following:

1) Describe your capability to begin providing the requested services no later than June 30, 2023. Include an explanation about how much Proposer is willing and able to accommodate the level of work requested and scheduling and include any limitations.

2) Provide a resume and references for each of Proposer’s representative(s) who will be performing the services set forth within this RFP. Include education, experience, availability, and the percentage of their effort that will be provided to Business Oregon. Provide information that demonstrates the individual’s:

a. Knowledge and experience as a professional communications specialist with experience related to Oregon arts and culture.

b. Arts nonprofit or public relations communication experience.

c. Knowledge and experience researching and writing impact stories related to public relations promotion and advancement.

3) Include a list of at least three professional communication projects completed during the past three years, each project similar to the requested Services within this RFP, and completed by the Proposer’s representative(s) who will be performing the Services described in this RFP. Describe the size and scope of each of the projects, duration, the individual’s role or responsibility, and notable results of the work.

2.3 Work Product – 40 Points Maximum

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1) Provide at least three writing samples, with a minimum of one related to arts and culture, for each of Proposer’s representatives who will perform services described in this RFP.

2.4 Letters of Introduction – 20 Points Maximum

Provide a personal Letter of Introduction from each of Proposer’s representatives that sets forth the following:

• Interest and qualifications in providing the RFP Services on behalf of the Arts Commission,

• A description of why they feel they are qualified to do so,

• The project approach, experience or expertise that sets them apart from others,

• Key factors for success and failure, and how they will manage these.

2.5 Cost – 10 Points Maximum

1) Proposer must provide a preferred hourly rate for the services to be provided as described in sections 1.2 and 1.3 of this RFP.

3.0 QUESTIONS AND CLARIFICATIONS

The Single Point of Contact (SPC) for this RFP is identified on the Cover Page, along with the SPC’s contact information. All inquiries, whether relating to the RFP process, administration, deadlines, award, or to the intent or technical aspects of the services must be submitted in writing by email to the SPC. All inquiries should reference the RFP number; identify Proposer’s name and contact information; and refer to the specific area of the RFP being questioned (i.e., page, section, and paragraph number if applicable).

All RFP questions must be received not later than 26 May 2023, 12:00 P.M.

Substantive questions and answers will be issued as official addenda to this RFP. Changes or modifications to this RFP shall be binding on Business Oregon only if in the form of written addenda issued by Business Oregon.

Business Oregon will provide addenda by posting them to OregonBuys. In addition, Business Oregon may directly provide addenda to directly solicited firms. Anyone who has received a copy of this RFP from a source other than Business Oregon is responsible for checking with the SPC or online postings.

Business Oregon is not responsible for sending addenda to any unknown potential Proposers.

Business Oregon may require additional clarification needed to understand a Proposal.

4.0 PUBLIC RECORDS

This RFP, and one copy of every proposal accepted in response to it, will be kept by Business Oregon and made a part of its records. All accepted Proposals will become part of the public file without obligation to Business Oregon. If a Proposal contains any information that may be exempt from disclosure under the Oregon Public Records Law, ORS 192.311 through 192.431, the Proposer must clearly designate that portion of its Proposal it considers to be exempt, along with a justification and citation to the authority relied upon. Application of the Uniform Trade Secrets Act (UTSA), ORS 646.461 and 646.475, and the Oregon Public Records Law will determine whether any information is actually exempt from disclosure.

Identifying an entire Proposal as exempt from disclosure is not acceptable and will not be effective to exempt the Proposal or any part of it from disclosure. Failure to identify the portion of the Proposal

C2023177 RFP Arts Commission Communications Contractor_Final _16May2023 Page 6/29 claimed as exempt from disclosure, and to specify a justification and the authority relied upon, will be deemed a waiver of any future claim based on disclosure of that information.

5.0 SUBMISSION REQUIREMENTS

Proposals must be received by 02 June 2023 on or before 12:00 p.m. Pacific Time. No Proposals will be accepted after this time. We rely on the State of Oregon email system clock to determine the correct time of receipt, and we are not responsible for any costs, or delays or difficulties in the transmission of any Proposal. Only electronic proposals sent by email are acceptable. Proposals sent by fax, regular mail, and physical deliveries are not accepted. Proposals must be submitted by attaching electronic files compatible with Microsoft Office applications (no files in excess of 15 megabytes, nor .zip, .exe or .com files will be accepted). Proposal electronic files, when printed, must fit on 8 ½” x 11” sheets of paper.

Proposals must be organized in accordance with the list of scored criteria above and cannot exceed 10 pages, excluding the Cover Sheet (Attachment A), the requested references (Attachment B), and the requested resumes and Letters of Introduction. Business Oregon will consider the pages up to the allowable number overall and discard all pages in excess of the allowable number.

Attachment A – Cover Sheet and Certifications and Attachment B – References must be signed and submitted as a .PDF file. Electronic signatures will be accepted. Please reference “RFP C2023177 Arts Commission Communication Contractor” in the email subject line. Proposals will be received only at the following email address: gail.sullivan@biz.oregon.gov.

6.0 NO AWARD PROTEST REQUIREMENTS

As an intermediate Procurement, no award protest opportunity is required or allowed.

7. CONTRACT NEGOTIATION AND AWARD REQUIREMENTS

7.1 NEGOTIATIONS

Business Oregon, in its sole discretion, reserves the right to negotiate all terms and conditions in the attached Sample Contract, Personal/Professional Services Contract (Attachment C) to the extent allowed by law. If negotiations with the top ranked Proposer are not successful, Business Oregon may terminate negotiations and begin negotiating with the next highest ranked Proposer.

7.2 CERTIFICATES OF INSURANCE

The Contractor will be required to provide certificates of insurance for the insurance coverages required by the Personal/Professional Services Contract (Attachment C, Exhibit B).

7.3 CONTRACTOR RESPONSIBILITIES

The Contractor shall assume responsibility for any and all contractual matters, including performance of work and the stated deliverables finalized in the Contract, whether the Contractor, an agent or an allowed subcontractor produces them.

7.4 TERMS AND CONDITIONS

By submitting a Proposal, the selected Proposer agrees to be bound by the terms and conditions of a standard State of Oregon Personal/Professional Services Contract, including requirements for insurance as determined by the Business Oregon. Any Proposal that is conditioned on Business Oregon’s acceptance of any other terms and conditions or rights to negotiate may be rejected as non-responsive.

mailto:gail.sullivan@biz.oregon.gov

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See sample contract, Attachment C, to this RFP.

RFP ATTACHMENTS FOLLOW BEGINNING ON THE NEXT PAGE.

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RFP ATTACHMENT A - COVER SHEET &

CERTIFICATIONS

STATEMENT OF PROPOSAL to Oregon Business Development Department __________________________________________ (Legal Name of Proposer) accepts all the terms and conditions contained in the [Insert Title of Project] RFP and the attached sample Contract (as they may have been modified or reserved for negotiation).

Corporation Professional Corporation Partnership Limited Partnership Ltd. Liability Company Ltd. Liability Partnership Sole Proprietorship Other __________

Mailing Address

Type name of contact/authorized representative Email address Telephone Other Type name of person(s) authorized to sign Contract

Affirmative Action, Nondiscrimination: Department is an equal-employment-opportunity employer and values diversity in its work force. It also requires Proposers to have an operating policy as an equal employment opportunity employer, and to follow good faith diversity efforts when subcontracting.

We certify that we have a formal statement of nondiscrimination in employment policy and have an affirmative action program if over 50 employees. (Firms of 50 people or less do not need a formal program, but must have a policy). Does your firm have 50 or more employees? Yes No We also certify that we have not and will not discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, women or emerging small business enterprise certified under ORS 200.055, and will follow good faith efforts in ORS 200.045 during any subcontracting.

Responsibility Certifications Has your company ever been declared in breach of any contract to provide services for unperformed or defective work?

Yes No If “yes,” explain.

Has any employee or agent of your company been convicted under state or federal law of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty?

Yes No If “yes,” explain.

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Has your company or any employee or agent of your company been indicted under state or federal false claims or antitrust laws, or charged with any other criminal offense arising out of obtaining, attempting to obtain, or performing a public or private contract or subcontract? Yes No If “yes,” explain.

During the last ten years, has your firm changed majority ownership or been the debtor in a bankruptcy case? Yes No If “yes,” explain.

Does your firm have any outstanding judgments pending against it? Yes No If “yes,” explain.

During the last ten years, has your firm been a party to litigation, arbitration or mediation where the amount in dispute exceeded $10,000? Yes No If “yes,” explain. (Include court, and party names.)

Conflicts of Interest: Please select (only) one of the following three options:

Our firm has no current, known actual, potential, or reasonably perceived, financial or other interest in the outcome of the services described in this RFP.

Our firm has a potential or reasonably perceived financial or other interest in the outcome of the services described in this RFP as described here: ___________________. Our firm proposes to mitigate the potential or perceived conflict according to the following plan: ___________________________.

Our firm has an actual financial or other interest in the outcome of the services described in this RFP as described here: ___________________.

What does “financial interest” mean?

If your firm, or employee of your firm working on the project (or a member of the employee’s household), will/may or may be perceived to receive or lose private income depending on government business choices based on your firm’s services, findings or recommendations, this must be listed as a financial interest. An example would be ownership in physical assets affected by government business choices related to these services. The possibility of contracting for further consulting services is not included in this definition and is not prohibited.

What does “other interest” mean?

If your firm, or employee of your firm working on the project (or a member of the employee’s household), will/may or may be perceived to have political, legal or any other interests that will affect what goes into your firm’s services, findings or recommendations, or will be/may be, or may be perceived to be, affected by government business choices related to these services, this must be listed as an other interest.

Tax Information and Tax Compliance: Any individual signing on behalf of Contractor hereby certifies under penalty of perjury: (a) Contractor’s correct taxpayer identification number is [ ___________]; (b) 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; (c) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, for a period of no fewer than six calendar years preceding the Effective Date of this Contract, Contractor has faithfully has complied with and is not in violation of: (i) all tax laws of this state, including but not limited to those included in: ORS 320.005 to 320.150 and 403.200 to 403.250 and

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ORS chapters 118, 314, 316, 317, 318, 321 and 323 and local taxes administered by the Department of Revenue; (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; and(d) Contractor is an independent contractor as defined in ORS 670.600; (e) if required by 40 CFR 1506.5(c), Contractor has no financial or other interest in the outcome of the project; and (f) in the event that Contractor is a general partnership or joint venture, that Contractor signature(s) on this Contract constitute certifications to the above statements pertaining to the partnership or joint venture, as well as certifications of the above statements as to any general partner or joint venturer signing this Contract.

Signature of Authorized Representative certifying the truth of all statements:

[signature] [Type name] Date

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RFP ATTACHMENT B - LIST OF REFERENCES

Department may check to determine whether these references support Proposer’s ability to comply with the requirements of this RFP. Department may use references to obtain additional information, or verify any information needed. Department may contact any reference (submitted or not) to verify Proposer’s qualifications.

Proposer must provide at least three references from current or former client for similar projects performed within the last four years. References must be able to verify the quality of that related work.

1. Reference Entity Name: __________________________________________

Reference Contact Name: __________________________________________

Contact Telephone Number: __________________________________________

Contact Email Address: __________________________________________

2. Reference Entity Name: __________________________________________

Reference Contact Name: __________________________________________

Contact Telephone Number: __________________________________________

Contact Email Address: __________________________________________

3. Reference Entity Name: __________________________________________

Reference Contact Name: __________________________________________

Contact Telephone Number: __________________________________________

Contact Email Address: __________________________________________

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RFP ATTACHMENT C – SAMPLE CONTRACT

STATE OF OREGON PERSONAL / PROFESSIONAL SERVICES CONTRACT

Number _____

Title: _____

This Contract is between the State of Oregon, acting by and through its Oregon Business Development Department (“OBDD”), and ________________(“Contractor”).

1. Effective Date and Duration. This Contract is effective once fully executed, and approved as required by applicable law. Unless terminated or extended, this Contract expires when OBDD accepts Contractor’s performance or on ___________________, _______ whichever date occurs first. Expiration or termination does not extinguish or prejudice OBDD’s right to enforce this Contract with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured.

2. Statement of Work. The Statement of Work (the “Services”), including the delivery schedule for such Services, is contained in Exhibit A, attached.

3. Compensation

a. The [maximum, not-to-exceed compensation] payable to Contractor under this Contract, which includes any allowable expenses, is $____________ and is more particularly described in Exhibit A – Compensation.

b. Any progress payments to Contractor will be made only in accordance with the schedule and requirements in Exhibit A – Compensation.

4. Contract Documents. This Contract consists of the following documents, incorporated by reference, which are listed in descending order of precedence: this Contract less all exhibits, attached Exhibits A and B.

5. Independent Contractor; Responsibility for Taxes and Withholding

a. Contractor will perform all required Services as an independent contractor. Although OBDD reserves the right (i) to determine the delivery schedule for the Services to be performed and (ii) to evaluate the quality of the completed performance, OBDD will not control, and Contractor is responsible for determining, the means and manner of Contractor’s performance.

b. If Contractor is currently performing services for the State of Oregon or the federal government, Contractor by signature to this Contract declares and certifies that: Contractor’s Services to be performed under this Contract create no potential or actual conflict of interest as defined by ORS 244, and no rules or regulations of Contractor’s employing agency (state or federal) prohibit Contractor’s Services under this Contract. Contractor is not an “officer,” “employee,” or “agent” of OBDD, as those terms are used in ORS 30.265.

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

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6. Subcontracts and Assignment; Successors and Assigns

a. Except as described in Exhibit A, Contractor cannot enter into any subcontracts for any of the Services required by this Contract, or assign or transfer any of its interest in this Contract, without OBDD’s prior written consent. In addition to any other provisions OBDD may require, Contractor will include in any permitted subcontract under this Contract a requirement that the subcontractor be bound by Sections 5, 6, 10, 11, 14, 15, and 18 of this Contract as if the subcontractor were the Contractor. OBDD’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

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

7. No Third Party Beneficiaries. OBDD and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, or is to be construed to give any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name and expressly described as intended beneficiaries of the terms of this Contract.

8. Funds Available and Authorized; Payments

a. No other agency or department of the State of Oregon will compensate Contractor for Services performed under this Contract. OBDD has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within OBDD’s biennial appropriation or limitation.

Contractor understands and agrees that OBDD’s payment of amounts under this Contract attributable to Services performed after the last day of the current biennium is contingent on OBDD receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow OBDD, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

b. OBDD will only pay for completed Services that are accepted by OBDD.

9. Representations and Warranties

a. Contractor’s Representations and Warranties. Contractor represents and warrants to OBDD that

(1) Contractor has the power and authority to enter into and perform this Contract, (2) this Contract is a valid and binding obligation of Contractor enforceable in accordance with its terms, (3) the Services under this Contract will be performed in accordance with the highest standards prevalent in the industry, and (4) Contractor will, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services.

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

10. Ownership of Work Product

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

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

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

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(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all Services that Contractor delivers or is required to deliver to OBDD pursuant to this Contract.

b. Ownership and License. All intellectual property rights in the Work Product created by Contractor pursuant to this Contract, including derivative works and compilations, are the exclusive property of OBDD. All Work Product authored by Contractor under this Contract is deemed “work made for hire” to the extent permitted by the United States Copyright Act. To the extent the OBDD is not the owner of the intellectual property rights in such Work Product, Contractor hereby irrevocably assigns to OBDD any and all of its rights, title, and interest in such Work Product. Upon OBDD’s reasonable request, Contractor will execute such further documents and instruments reasonably necessary to fully vest such rights in OBDD.

Contractor forever waives any and all rights relating to original Work Product created pursuant to this Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

In the event that intellectual property rights in the Work Product are Contractor Intellectual Property, Contractor hereby grants to OBDD an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on OBDD’s behalf.

To the extent Contractor has the authority, Contractor will sublicense or pass through to the OBDD all Third Party Intellectual Property. Contractor represents and warrants that it has provided written disclosure to the OBDD of all Third Party Intellectual Property that must be independently licensed by the OBDD to fully enjoy the benefits of the Work Product. If Contractor failed to provide such written disclosure, Contractor will secure on OBDD’s behalf and in the name of OBDD an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property employed in the Work Product, and to authorize others to do the same on OBDD’s behalf.

11. Indemnity

a. Claims for Other than Professional Liability. Contractor will defend (subject to ORS chapter 180), save and hold harmless the State of Oregon, the Oregon Business Development Arts Commission and its members, the Oregon Business Development Department, their officers, agents and employees from all claims, suits or actions of whatsoever nature, including intentional acts resulting from or arising out of the activities of Contractor or its subcontractors, agents or employees under this agreement.

b. Claims for Professional Liability. Contractor will defend (subject to ORS chapter 180), save and hold harmless the State of Oregon, the Oregon Business Development Arts Commission and its members, the Oregon Business Development Department, their officers, agents and employees, from all claims, suits or actions arising out of the professional negligent acts, errors or omissions of Contractor or its subcontractors and subcontractors, agents or employees in performance of professional services under this agreement.

c. Control of Defense and Settlement. Contractor will have control of the defense and settlement of any claim that is subject to sections 11.a or 11.b; however, neither Contractor nor any attorney engaged by Contractor will defend the claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without first

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12. Insurance. Contractor will provide insurance as indicated on Exhibit B.

13. Termination

a. Parties’ Right to Terminate For Convenience. This Contract may be terminated at any time by mutual written consent of the parties.

b. OBDD’s Right To Terminate For Convenience. OBDD may, at its sole discretion, terminate this Contract, in whole or in part, upon 30 days notice to Contractor.

c. OBDD’s Right to Terminate For Cause. OBDD may terminate this Contract, in whole or in part, immediately upon notice to Contractor, or at such later date as OBDD may establish in such notice, upon the occurrence of any of the following events:

(i) OBDD fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for Contractor’s Services;

(ii) Federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the Services under this Contract is prohibited or OBDD is prohibited from paying for such Services from the planned funding source;

(iii) Contractor no longer holds any license or certificate that is required to perform the Services;

or

(iv) Contractor commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, or fails to perform the Services under this Contract, or so fails to pursue the Services as to endanger Contractor’s performance under this Contract, within the time specified in an applicable notice or any extension thereof.

(v) Contractor has not complied or does not comply with Oregon tax laws as stated in the Contractor Data and Tax Law Certification section below.

d. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract upon 30 days’ notice to OBDD if OBDD fails to pay Contractor pursuant to the terms of this Contract and OBDD fails to cure within 30 business days after receipt of Contractor’s notice, or such longer period of cure as Contractor may specify in such notice.

e. Remedies

(i) In the event of termination pursuant to Sections 13a, 13b, 13c(i), 13c(ii) or 13d, Contractor’s sole remedy is a claim for the sum designated for accomplishing the Services multiplied by the percentage of Services completed and accepted by OBDD, less previous amounts paid and any claim(s) which State has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this subsection, Contractor will promptly pay any excess to OBDD.

(ii) In the event of termination pursuant to Section 13c(iii) - 13c(v), OBDD has any remedy available to it in law or equity. If it is determined for any reason that Contractor was not in default under Section 13c(iii) - 13c(v), the rights and obligations of the parties will be the same as if the Contract was terminated pursuant to Section 13b.

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f. Contractor’s Tender Upon Termination. Upon receiving a notice of termination of this Contract, Contractor will immediately cease all activities under this Contract, unless OBDD expressly directs otherwise in such notice. Upon termination of this Contract, Contractor will deliver to OBDD all documents, information, works-in-progress and other property that are or would be deliverables had the Contract been completed. Upon OBDD’s request, Contractor will surrender to anyone OBDD designates, all documents, research or objects or other tangible things needed to complete the Services.

14. Records Maintenance; Access. Contractor will maintain all fiscal records relating to this Contract in accordance with generally accepted accounting principles. In addition, Contractor will maintain any other records pertinent to this Contract in such a manner as to clearly document Contractor’s performance.

Contractor acknowledges and agrees that OBDD and the Oregon Secretary of State’s Office and the federal government and their duly authorized representatives have access to such fiscal records and other books, documents, papers, plans and writings of Contractor that are pertinent to this Contract to perform examinations and audits and make excerpts and transcripts. Contractor will retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of six (6) years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

15. Compliance with Applicable Law. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Services under this Contract. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with: (i) Title VI of Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. As applicable, Contractor shall comply with the provisions of ORS 279B.220, 279B.230, 279B.235, and 279B.270, which are incorporated by this reference. Contractor shall continue to comply with the tax laws of this state or a political sub-division of this state during the term of the public contract. Contractor shall comply with the prohibition set forth in ORS 652.220, and failure to comply is a breach that entitles OBDD to terminate the contract for cause.

16. Business Registration. Contractor has provided to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies to do business in the State of Oregon relative to this Contract.

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

18. Survival. All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 1, 8, 9, 10, 11, 13, 14, 15, 21, 25, and 26.

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

20. Notices and Communication. Except as otherwise expressly provided in this Contract, any communication between the parties or notices required or permitted must be given in writing by personal delivery, email, or by mailing the same, postage prepaid, to Contractor or OBDD at the addresses set forth

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Any communication or notice by personal delivery will be deemed effective when actually delivered to the addressee. Any communication or notice so addressed and mailed will be deemed to be received and effective five (5) days after mailing. Any communication or notice given by email becomes effective 1) upon the sender’s receipt of confirmation generated by the recipient’s email system that the notice has been received by the recipient’s email system or 2) the recipient’s confirmation of receipt, whichever is earlier.

Notwithstanding this provision, the following notices may not be given by email: notice of default or notice of termination.

OBDD: Executive Director Arts & Cultural Trust Arts Commission/Oregon Business Development Department 775 Summer Street Suite 200 Salem OR 97301-1280

Contractor: According to the Contractor Data and Certification below or to such other addresses or numbers as either party may later designate pursuant to this Section 20. Any notice so addressed and mailed is deemed to be given five (5) days after mailing. Any notice by personal delivery is deemed to be given when actually delivered.

21. Severability. The parties agree that if any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions are not affected, and the rights and obligations of the parties are to be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid.

22. 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 the Contract so executed constitutes an original.

23. Oregon False Claims Act. Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to 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.

24. Disclosure of Social Security Number. Contractor must provide Contractor’s Social Security number unless Contractor provides a federal tax ID number. This number is requested pursuant to ORS

305.385. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal and local tax laws.

25. Choice of Law; Designation of Forum; Federal Forum

a. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Contract, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

b. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Contract shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County (unless Oregon law requires that it be brought and conducted in another county). Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

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c. Notwithstanding the preceding paragraph, if a claim must be brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for the District of Oregon. This Section applies to a claim brought against the State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon’s sovereign immunity and is not consent by the State of Oregon to be sued in federal court. This Section is also not a waiver by the State of Oregon of any form of defense or immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States.

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

27. Amendments. OBDD may amend this Contract to the extent provided in the solicitation document, if any, from which this Contract arose, and 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 all approvals required by applicable law have been obtained.

28. Attorney Fees and Other Expenses. To the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, the prevailing party in any dispute arising from this Contract is entitled to recover from the other its reasonable attorney fees, costs and expenses at trial and on appeal. Reasonable attorney fees cannot exceed the rate charged to the State by its attorneys. The Contractor will, on demand, pay to the State reasonable expenses incurred by the State in the collection of such payments.

29. Confidential Information.

a. In the course of performing Services under this Contract, Contractor acknowledges that it and its employees or agents may be exposed to or acquire information that is confidential to OBDD or OBDD’s clients. Any and all information of any form obtained by Contractor or its employees or agents in the performance of this Contract shall be deemed to be confidential information of OBDD (“Confidential Information”). Any reports or other documents or items which result from the use of the Confidential Information by Contractor shall be treated with respect to confidentiality in the same manner as the Confidential Information.