C2023623_ RFP_Tide Gates Pasture Productivity Tool.pdf

Request for Proposals:

Tide Gates Pasture Productivity Tool

Proposal due date: October 16, 2023, at 3:00 p.m. Pacific Time.

Oregon Business Development Department RFP no. C2023623 OregonBuys Open Market Bid S-12300-00008279

Single Point of Contact (SPC):

Ms. Denise Wendler, Procurement and Contract Specialist Oregon Business Development Department (Business Oregon) 775 Summer St., NE, Suite 200 Salem, OR 97301-1280 Telephone: 971-718-6790 Email: denise.wendler@biz.oregon.gov mailto:denise.wendler@biz.oregon.gov

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1.0 SOLICITATION INFORMATION AND REQUIREMENTS

1.1 GENERAL INFORMATION

The State of Oregon, acting by and through the Oregon Business Development Department (“Department” or “Business Oregon”), is issuing this request for a technical study and creation of a statewide tool to demonstrate what impact preservation of tide lands (and associated work to tide gates) would have on cattle operation productivity. The Department anticipates awarding a single contract not to exceed $75,000 to deliver the services needed and anticipates completing the Project by June 30, 2024. The Department reserves the right to amend the contract, dependent on need and approved budget, and to include additional related consulting and services without conducting further solicitation activities.

1.2 DESCRIPTION OF SERVICES NEEDED / PROPOSED STATEMENT OF WORK

Business Oregon, the economic development agency for the State of Oregon, is seeking a consultant (“Contractor”) to complete a technical study and prepare a corresponding summary report to evaluate the potential economic impacts the preservation of tide land and associated work on tide gates have on the management of agricultural lands along the Oregon coast and its effect on agricultural production (“Study” or “Project”).

The maximum budget for these services is $75,000 including travel expenses. The Project is anticipated to begin no later than November 01, 2023, and the term of the Contract is anticipated to conclude on June 30, 2024. During the term of the Study contract (“Contract”), Contractor will perform the following services:

1.2.1 Technical Study

The Study must include, at a minimum, the following:

1.2.1.1 An overview of Oregon’s coastal agricultural practices and water management infrastructure including a background statement of the issue and the need and benefit for this Study in relation to tide gate replacement, repair, and installation in agricultural production, coastal farming and ranch areas.

1.2.1.2 Specific case studies supporting and demonstrating the need for the Study, targeted areas that will be utilized for testing, outcomes expected to be achieved, and potential positive and negative impacts of changes in tidal affected land and/or tide gate management on agricultural operations.

1.2.1.3 Potential barriers to the research and resources needed to complete the Study (i.e.

landowner communication, area access, permits, etc.).

1.2.1.4 An estimated timeline of outcomes, milestones, and deliverables in relation to the completion date listed.

1.2.1.5 Any additional information needed by the Department.

1.2.2 Economic and Productivity Impact Analysis

Contractor will research, review, and summarize existing opportunities for analysis of agricultural productivity as it relates to tide lands and tide gates for Oregon coastal producers and their operations.

Contractor will, at a minimum:

1.2.2.1 Gather additional information identified as part of the technical study described in section 1.2.1;

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1.2.2.2 Assess the potential economic impact the preservation of tide lands could have on agricultural operations in Oregon. Measures to be discussed and included can include but are not limited to the impact on cattle production in an area with updated tide gate(s), including the number of additional days that cattle could graze on pastures, the number of hay cuttings that could be done in a growing season, etc.

1.2.2.3 Assess the potential impacts the repair, replacement, or upgrade of tide gates may have on the local economy within tidal affected lands.

1.2.3 Final Summary Report

Contractor will prepare a Final Summary Report. The report will include, at a minimum:

1.2.3.1 Summarizing the scope and findings of the Study, including the Technical Study and the

Economic and Productivity Impact Analysis as outlined in Sections 1.2.1 and 1.2.2, respectively;

1.2.3.2 Describing available tools, the potential audiences affected by the Study, the Study’s potential uses, and a proposed method for disseminating communication and public education related to the Study.

Multiple formats of the Final Summary Report will be required depending on the target audience, including but not limited to formats for email and hard copy distribution, use on large display screens, social media, and web platforms. All formats of the Final Summary Report must include accommodations for individuals with disabilities, including but not limited to accurate closed captioning.

1.2.4 Available Resources

Business Oregon will provide Contractor with access to resources and content that may include but is not limited to:

1.2.4.1 Contact with Business Oregon economists and/or representatives;

1.2.4.2 Contact with local businesses or other stakeholders; and

1.2.4.3 Other resources as negotiated with the selected Contractor.

1.2.5 General Requirements and Components

The Contractor will be required to provide the following for the Study:

1.2.5.1 Regular communication and updates with Business Oregon, scheduled as determined by the Department’s Tide Gate Coordinator and the Contractor;

1.2.5.2 Consistent outreach to stakeholders and affected landowners, as mutually determined by Department and Contractor (if necessary);

1.2.5.3 Travel as necessary to complete the Study.

1.2.5 Final Deliverables

Final deliverables (“Deliverables”) will include but are not limited to: (examples only shown):

1.2.5.1 Final Summary Report delivered to and accepted by Business Oregon summarizing the scope and findings of the Study including a review and summary of available agricultural economic and productivity tools;

1.2.5.2 Any further reporting deemed necessary by Business Oregon to successfully operate and properly file the Study and potential tool(s) for future needs, including auditing purposes.

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Contractor will perform all required Services as an independent contractor. Although the Department 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, Department will not control, and Contractor is responsible for determining, the means and manner of Contractor’s performance. See full terms in the Sample Contract attached to this RFP as Exhibit C.

1.3 OREGONBUYS INFORMATION

This RFP is advertised as a “Bid Solicitation” in the OregonBuys web-based eProcurement System. The OregonBuys website is available at: http://oregonbuys.gov. OregonBuys is the only official repository for RFP documents. Business Oregon assumes no responsibility for content obtained from other sources.

Interested Proposers must be registered in OregonBuys to do business with the State of Oregon.

Registration is free. To create a vendor account, click the blue “Supplier Registration” button in the top right corner of the OregonBuys website. For registration assistance, see vendor registration guidance:

https://www.oregon.gov/das/ORBuys/Documents/SupplierRegistrationGuide.pdf. Vendors are responsible for ensuring that their vendor registration and information is current and correct in OregonBuys. Business Oregon shall not be responsible for defective registration or incorrect vendor information.

1.4 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 (email preferred; mail or fax are acceptable) to the SPC. All inquiries should reference the RFP number; identify the 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 questions must be received not later than October 06, 2023, at 3:00 p.m. Pacific Time by the SPC specified on the title page of this RFP.

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 Department.

The Department will provide addenda by posting them to Oregon Buys, and on the Department’s website. In addition, the Department may directly provide addenda to directly solicited firms. Anyone who has received a copy of this RFP from a source other than the Department is responsible for checking with the SPC or online postings for any notifications or addenda. Department is not responsible for sending addenda to any unknown potential Proposers.

Department may require any clarification it needs to understand a Proposal.

1.5 NO AWARD PROTEST REQUIREMENTS

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

1.6 DUE DATE

Proposals must be received by October 16, 2023, at 3:00 p.m. Pacific Time. Absolutely no Proposals will be accepted after this date and time. Department relies on the State of Oregon email system clock to determine the correct time and is not responsible for any delays or difficulties experienced in the transmission of any Proposal. Please do not wait until the last minute to email your Proposal; it will be too late to correct any problems.

http://oregonbuys.gov/ https://www.oregon.gov/das/ORBuys/Documents/SupplierRegistrationGuide.pdf https://oregonbuys.gov/bso/ https://www.oregon.gov/biz/programs/homeareas/contracts/Pages/default.aspx https://www.oregon.gov/biz/programs/homeareas/contracts/Pages/default.aspx

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1.7 ELECTRONIC RESPONSES BY EMAIL ONLY

Only electronic proposals sent by email to the SPC or via digital upload on OregonBuys are acceptable. Proposals sent by fax, regular mail, or physical delivery are not acceptable. The email subject or reference line for all submittals must include the RFP title and RFP number.

Proposals will be received only at the SPC’s email address or through OregonBuys.

1.8 NO LATE OR MISDIRECTED SUBMISSION OF PROPOSALS

Submittals that are late or misdirected will be considered non-responsive, without exception. The Department is not responsible for errors of any kind involved with electronic submission, nor for notifying Proposers of complete or incomplete receipt of a Proposal.

1.9 FORMAT AND PAGE LIMIT FOR PROPOSALS

The Department will accept Proposals in electronic files formatted as a .PDF file. The signed Attachment A – Cover Sheet and Certifications required by section 2.1 must be submitted as a .PDF file. Files that are more than 15 megabytes must be submitted incrementally. Proposals must not be submitted as .zip, .exe or .com files.

Proposers may choose how to allocate pages between any sections, within the overall page limit. The Proposal must not exceed twenty (20) pages total excluding a separate exhibit of biographies or resumes of key team members as described in Section 2.3.1.1, Attachment A - Cover Sheet and Certifications, and Attachment B – List of References). Department will consider the pages up to that allowable number and discard all pages in excess of the allowable number. One (1) page is defined as:

one side of a single 8-1/2" x 11" page, with 12-point minimum font size for the substantive text. Proposers may use their discretion for the font size of other materials (e.g., graphics, charts). Any page or partial page with substantive text, graphics, charts, resumes, etc., will be counted as one (1) page.

1.10 PUBLIC RECORDS

This RFP, and one copy of every proposal accepted in response to it, will be kept by Department and made a part of its records. All accepted Proposals will become part of the public file without obligation to Department. 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 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.

1.11 TERMS AND CONDITIONS

By submitting its Proposal, the selected Proposer agrees to be bound by the terms and conditions of the State of Oregon Personal/Professional Services Contract that is attached to this RFP as Attachment C – Sample Contract, including requirements for insurance as determined by Department. Any Proposal that is conditioned on Department’s acceptance of any other terms and conditions or rights to negotiate will be rejected as non-responsive.

PROPOSAL SUBMISSION CHECKLIST FOR USE BY PROPOSERS - INFORMATION ONLY

Due Date Met

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Proposal Addressed Correctly Proposal in Acceptable Electronic File Type (.PDF) Proposal Format and Page Limit Requirements Met Signed Cover Sheet and Certifications Included Proposal Does Not Include Conditional Language About Terms and Conditions Public Records Disclosure Exemption Statement Included (If Applicable)

2.0 INFORMATION REQUESTED FROM PROPOSERS; SCORED CRITERIA

Scoring for the Qualifications, Project Approach, and Value sections outlined in Section 2.3 will be separate, and each Task will be scored based on the categories described below.

2.1 COVER SHEET AND CERTIFICATIONS (no page limit)

A Proposal must include a completed Attachment A - Cover Sheet and Certifications (substantially in the form of Attachment A), signed by a duly authorized representative of the Proposer empowered to bind the Proposer.

2.2 REFERENCES (no page limit)

In addition to the scored criteria in Section 2.3, Proposers must also complete and submit Attachment B – List of References including 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 required skills.

References will not be scored but may be used as part of a “responsibility” check to verify the Proposer’s ability to perform.

2.3 SCORED INFORMATION

The combined responses to the criteria in each subsection of this Section 2.3 must not exceed the allowable page limit described in Section 1.9. The Department will consider the pages up to that allowable number and discard all pages in excess of the allowable number.

2.3.1 Qualifications and Past Work 45 Points maximum

2.3.1.1 Provide brief biographies of key member(s) who will be performing the work on this Project, and their associated roles, responsibilities and committed percentage availability. Please provide information that demonstrates each key team member’s:

a. knowledge and experience related to the Project; and

b. area of technical expertise and support to your team.

You may optionally provide resumes of key members who will be performing the on this Project as a separate exhibit or via links to online resumes (such as on LinkedIn), which will not count toward the Proposal page limit.

2.3.1.2 Describe how your team’s experience, expertise or approach sets you apart from others.

2.3.2 Project Approach 45 Points maximum

2.3.2.1 Review the Description of Services Needed / Proposed Statement of Work outlined in Section 1.2 above and provide a detailed description of the techniques, approaches and methods you will use to complete the Project.

2.3.2.2 Provide a timeline for Project completion. The timeline should include:

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a) Preliminary organizational meeting with the Department to discuss general expectations, Project scheduling, and resource requirements;

b) Timeline for proposed deliverables. The final timeline will be mutually agreed to once a Contractor is selected. The timeline should include outcomes, milestones, and benchmarks for deliverables.

2.3.2.3 Articulate the key factors for success and failure related to this Project, and how your firm will manage these.

2.3.3 Value 10 Points maximum

2.3.3.1 Describe what you will accomplish within the budget of the Project, formatted as deliverables based. The Project budget must include all costs associated with the Project.

2.3.3.2 Describe your capacity to complete the requested services within the timeframe outlined.

Include an explanation about how much the Proposer is willing and able to accommodate any level of work and scheduling and include any limitations.

3.0 EVALUATION PROCESS

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 2.3.

Without limiting the possibilities allowed under OAR 137-047-0261, the Department 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 Department intends to take no further action with respect to the RFP).

The Department 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 the Department’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.

Department 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.

4.0 CONTRACT AWARD REQUIREMENTS

4.1 NEGOTIATIONS

The Department, in its sole discretion, reserves the right to negotiate all terms and conditions in the attached Sample Contract to the extent allowed by law.

If negotiations with the top ranked Proposer are not successful, Department may terminate negotiations and begin negotiating with the next highest ranked Proposer.

4.2 CERTIFICATES OF INSURANCE

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

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4.3 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.

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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 Tide Gates Pasture Productivity Tool 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 workforce. 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.

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.

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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 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: __________________________________________

3. Reference Entity Name: __________________________________________

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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 (“Department”), 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 Department accepts Contractor’s performance or on ___________________, _______ whichever date occurs first. Expiration or termination does not extinguish or prejudice Department’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 Department 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, Department 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 Department, 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 Department is aware that Contractor is subject to backup withholding, Department 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 Department’s prior written consent. In addition to any other provisions Department 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. Department’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. Department 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. Department has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within Department’s biennial appropriation or limitation.

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

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

9. Representations and Warranties

a. Contractor’s Representations and Warranties. Contractor represents and warrants to Department 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 Department or Contractor.

(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 Department pursuant to this Contract.

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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 Department. 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 Department is not the owner of the intellectual property rights in such Work Product, Contractor hereby irrevocably assigns to Department any and all of its rights, title, and interest in such Work Product. Upon Department’s reasonable request, Contractor will execute such further documents and instruments reasonably necessary to fully vest such rights in Department. 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 Department 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 Department’s behalf.

To the extent Contractor has the authority, Contractor will sublicense or pass through to the Department all Third Party Intellectual Property. Contractor represents and warrants that it has provided written disclosure to the Department of all Third Party Intellectual Property that must be independently licensed by the Department to fully enjoy the benefits of the Work Product. If Contractor failed to provide such written disclosure, Contractor will secure on Department’s behalf and in the name of Department 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 Department’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 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 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 receiving authority to act as legal counsel for the State of Oregon from the Oregon Attorney General, in a form and manner determined appropriate by the Attorney General, nor will Contractor settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement.

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

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

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

(i) Department 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 Department 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, fails to perform the Services under this Contract 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.

d. Contractor’s Right to Terminate for Cause. Contractor may terminate this Contract upon 30 days’ notice to Department if Department fails to pay Contractor pursuant to the terms of this Contract and Department 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 Department, 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 Department.

(ii) In the event of termination pursuant to Section 13c(iii) or 13c(iv), Department 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) or 13c(iv), the rights and obligations of the parties will be the same as if the Contract was terminated pursuant to Section 13b.

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 Department expressly directs otherwise in such notice. Upon termination of this Contract, Contractor will deliver to Department all documents, information, works-in-progress and other property that are or would be deliverables had the Contract been completed. Upon Department’s request, Contractor will surrender to anyone Department 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 Department 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

C2023623_ RFP_Tide Gates Pasture Productivity Tool Page 16 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. Department’s performance under this Contract is conditioned upon Contractor’s compliance 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.

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 Department 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 Department 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 Department at the addresses set forth below, or to such other persons or addresses that either party may subsequently indicate pursuant to this Section.

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.

Department: Deputy Director Oregon Business Development Department 775 Summer Street Suite 200 Salem, OR 97301-1280

Contractor: According to the Contractor Data and Certification below

C2023623_ RFP_Tide Gates Pasture Productivity Tool Page 17 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.

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…