C2023665_ArtsEcoWebsite_RFP.pdf

OBDD RFP No. C2023665 (OregonBuys # S-12300-00008405 )

Request for Proposals:

Cultural Trust/Oregon Arts Ecology Website Maintenance

Proposal Due Date: 26 October 2023, at 3:00 p.m. Pacific Standard Time

1.0. GENERAL INFORMATION

Pursuant to ORS 279B.060 and OAR 137-047-0260, the Oregon Business Development Department (“Business Oregon”) seeks website maintenance for the Cultural Trust/Oregon Arts Ecology website.

Business Oregon anticipates awarding an Personal Services Contract (“PSK”) through this Request for Proposals (“RFP”). The PSK(s) is/are expected to commence in November 2023 for a three-year term, with a not to exceed total of $25,000. Contingent on Business Oregon’s need and the availability of funding, the PSK may be amended to the extent allowed by law to extend its term, increase the compensation, or add services within the general scope of this RFP, without conducting further solicitation activities.

1.1. BACKGROUND AND NEED

Business Oregon is the state's economic development agency. The mission of Business Oregon is to invest in Oregon’s businesses, communities, and people to promote a globally competitive diverse and inclusive economy. Business Oregon also houses the Oregon Arts Commission and the Oregon Cultural Trust in recognition of the expanding role the Arts play in the broader social, economic and educational arenas of Oregon communities. Information about the Arts Commission’s program activities can be accessed at https://www.oregonartscommission.org/programs. Information about the Cultural Trust’s program activities can be accessed at https://www.culturaltrust.org/.

Business Oregon seeks the services of a contractor for website maintenance for the Cultural Trust/Oregon Arts Ecology website, as more fully described in Section 1.2.

https://www.oregonartscommission.org/programs https://www.culturaltrust.org/

1.2. SCOPE OF WORK

Proposer must be able to provide, at minimum, the following tasks:

Task #1: Review and make recommendations for the design and security of OBDD’s WordPress sites:

https://oregonvisualarts.org/ and https://culturaltrust.org/. Recommendations may include but are not limited to included databases, hosting setups, themes and plug-ins, login pages and the administrative dashboards.

Task #2: Inspect the WordPress sites listed in Task #1 and host servers periodically, but no less than quarterly, to apply WordPress and plug-in updates to the production environment, verify the sites are functioning properly with the new updates. Contractor shall notify and coordinate with the designated OBDD representative (Contract Administrator) before and after the updates are completed.

Task #3: Upon OBDD Contract Administrator request, Contractor shall assist OBDD staff with troubleshooting issues on WordPress templates or features or with content updates, or other services related to website maintenance, including training for OBDD staff. Specific requests for support must be agreed upon in writing by both parties and shall include scope, maximum hours, maximum cost or expenditure amounts, and any deliverables. Prior authorization for each request must be obtained in writing or in the form of an email from the Contract Administrator.

This is not an exclusive list. Business Oregon reserves the right to contract for other services and goods reasonably related to website maintenance.

To ensure compatibility, product quality, and Business Oregon’s ability to use finished electronic files for other purposes, the Contractor must use software compatible with Business Oregon’s software. At the time of this RFP, Business Oregon Wordpress software and Microsoft Office. Further, to facilitate bid requests and communication of project updates, the Contractor must also have and maintain one email account and have access to the internet throughout the term of the PSK.

1.3 QUESTIONS AND CLARIFICATIONS

All inquiries, whether relating to the RFP process, administration, deadline or award, or to the intent or technical aspects of the Services must be submitted in writing (email preferred; mail or fax are acceptable) to:

Christian Nasset, Contract and Procurement Officer Oregon Business Development Department 775 Summer St., NE, Suite 200 Salem, OR 97301- 1280 Telephone: (971) 382-2343 Email: Christian.Nasset@Biz.Oregon.gov

All questions must be received not later than four calendar days prior to Proposal Due Date specified on the title page of this RFP.

Substantive questions and answers will be issued as official addenda to this RFP. Business Oregon reserves the right to not respond to questions it determines are already addressed in the 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 advertise addenda only on the OregonBuys website (https://oregonbuys.gov/bso/view/login/login.xhtml) and on Business Oregon’s internet address:

https://www.oregon4biz.com/Contracting/. Anyone who has received a copy of this RFP from a source https://www.oregon4biz.com/Contracting/ other than Business Oregon is responsible for checking with designated procurement staff, OregonBuys or the Business Oregon’s internet address for the existence of any addenda. Proposers are responsible for checking these sources to determine whether or not an addendum has been issued, and then must either download or request an electronic copy. Aside from requested copies, Business Oregon is not responsible for sending addenda to any potential Proposers.

Business Oregon may require any clarification it needs to understand a proposal.

1.4 PROTESTS AND REQUESTS

1.4.1 RFP PROTESTS AND CHANGE REQUESTS

Proposers who believe RFP specifications are unnecessarily restrictive or limit competition, or who wish to suggest scope of work elements or revised scoring criteria more likely to assist Business Oregon in selecting the best Proposer, are encouraged to submit a solicitation “protest”. All protests concerning the RFP, including requests for change of particular provisions, specifications, or the Agreement terms and conditions, must be submitted in writing to the procurement staff person identified in section 1.3 not later than four calendar days prior to the Proposal Due Date specified on the cover page of this RFP.

A protest must clearly and specifically explain the reason(s) for the protest and specify any proposed changes to the RFP specifications. Business Oregon will respond to protests in writing. Business Oregon will not consider any solicitation protest submitted after the deadline established in this subsection.

1.4.2 AWARD PROTEST REQUIREMENTS

Every Proposer that submits a proposal will be notified of its selection status. Any Proposer who claims to have been adversely affected by the selection of a competing Proposer must deliver a written protest to the procurement staff person identified in section 1.3 within seven calendar days after receiving notification of its selection status. A protest must meet all applicable requirements in OAR 137-047- 0740. Business Oregon will review protests and respond in writing. Business Oregon will not consider any protest submitted after the protest submission deadline established in this subsection.

1.5 DUE DATE

Proposals must be received by 26 October 2023, on or before 3:00 p.m. Pacific Time (“Proposal Due Date”). Proposals will be opened at this time. Absolutely no Proposals will be accepted after this date and time. Business Oregon 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.

1.6 ELECTRONIC RESPONSES BY EMAIL ONLY

Only electronic proposals sent by email are acceptable. Proposals sent by fax, regular mail, and physical deliveries will not be accepted. The email subject or reference line for all submittals must include the RFP title and RFP number.

Proposals will be received only at the following email address: Christian.Nasset@Biz.Oregon.gov Business Oregon will accept Proposals in electronic files compatible with Microsoft Office or Adobe PDF applications. The signed cover sheet required by section 1.9 must be submitted as a .PDF file. Files in excess of 50 megabytes must be submitted incrementally, i.e. multiple emails (please label accordingly). Proposals must not be submitted as .zip, .exe or .com files. If your proposal exceeds the 50-megabyte limit of Business Oregon’s email system, instead of incremental submission, you may request a link to Business Oregon’s Microsoft One Drive to upload your proposal by contacting the person identified in Section 1.3 no later than two days prior to the Proposal Due Date.

1.7 NO LATE OR MISDIRECTED SUBMISSION OF PROPOSALS

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

1.8. FORMAT FOR PROPOSAL SUBMISSIONS AND PAGE LENGTH LIMITATION:

Proposals must be organized in accordance with the list of scored criteria in Section 2.2. A proposal must not exceed 10 pages, excluding cover sheet (Attachment A). If 10 pages seems insufficiently few to allow a reasonable response to the requested information, please submit a solicitation protest per section

1.4.1. The Proposer may choose how to allocate pages among any sections within the overall page limit.

If a Proposer submits a proposal exceeding these limits, Business Oregon will consider the pages up to that allowable number and discard all subsequent pages.

One 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. Any page over this size will be counted as two pages. Any page or partial page with substantive text, graphics, charts, resumes, etc., will be counted as one page. Proposers may use their discretion for the font size of other materials (e.g., graphics, charts).

1.9. COVER SHEET

Every proposal submitted must include a completed Cover Sheet (substantially in the form of Attachment A), signed by a duly authorized representative of the Proposer empowered to bind the Proposer. Any proposal without a completed Cover Sheet will be rejected as non-responsive. The signed cover sheet must be emailed as a .PDF file.

1.10 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 192.478, 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 Agreement that is attached to this RFP as Attachment B, including requirements for insurance as determined by Business Oregon. Any proposal that is conditioned on Business Oregon’s acceptance of any other terms and conditions or rights to negotiate will be rejected as non-responsive.

However, Business Oregon in its sole discretion reserves the right to negotiate any term or condition of the Agreement.

PROPOSAL SUBMISSION CHECKLIST FOR USE BY PROPOSERS - INFORMATION ONLY

Due Date Met Proposal Addressed Correctly Proposal in Acceptable Electronic File Type(s) Proposal Format and Page Limit Requirements Met Signed Cover Sheet 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 is based on the categories described below. If not specifically requested here, Proposers must also describe how they meet any other requirements that may be specified in Section 1 above.

2.1 REFERENCES

Please provide three clients/references that you have completed similar work for. Please provide the information in a format similar to the table format below. Client projects should be similar in type, size, dollar amount, etc. to Business Oregon’s needs. Projects performed within the last five years are preferred (projects may be identical or different than those described in response to Section 2(a)(vi) above). Include all information requested below; email and phone numbers of clients are required.

Name of entity, point of contact, address

Email and phone Types of projects and services provided

Date of Work and $ volume ex am pl e

Acme, Inc.

Bob Smith, Manager 1234 Main St.

Salem, OR 97201

503-288-8888 503-289-9999 Bob.smith@acme.com

Digital printing, press printing, 4 canvas banners, three 10,000-piece mailings

1/1/18-12/31/18 $150,000 in projects.

1.

2.

3.

2.2 SCORED INFORMATION

2.2.1 Proposer’s General Qualifications and Capabilities 60 Points Demonstrate your team’s qualifications and experience relating to the requested Services listed in Section 1.2 – Scope of Work.

2.2.2 Cost Proposal 40 points

Provide detailed cost projections for your services for the tasks listed in Section 1.2 – Scope of Work.

Costs may be provided by task on an hourly rate basis,

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 137-047-270 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 2.1.

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 IFA’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 B, Exhibit B).

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.

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 Cultural Trust/Oregon Arts Ecology Website Maintenance, 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

Nondiscrimination and Good Faith Efforts with COBID Office: The State of Oregon prohibits unlawful discrimination in employment, including but not limited to: discrimination because of race, national origin, color, sex, gender identity, sexual orientation, age, religion, physical or mental disability, military status, marital status or family status. Proposer certifies that Proposer understands and will follow applicable civil rights and employment laws.

Proposer certifies that to the best of Proposer’s knowledge, that Proposer has not discriminated and will not discriminate, in violation of ORS 279A.110(1), against a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a service-disabled veteran-owned business or an emerging small business enterprise certified under ORS 200.055 in awarding a subcontract.

Proposer certifies that Proposer will make good faith efforts to encourage disadvantaged business enterprises, minority-owned businesses, woman-owned businesses, service-disabled veteran-owned businesses and emerging small businesses to participate in any subcontracting by Proposer by taking the actions listed in ORS 200.045(3)(a)-(j). Such good faith efforts include working with the Certification Office for Business Inclusion and Diversity (COBID) and utilizing the list of certified enterprises and businesses.

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.

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: The undersigned certifies and swears under penalty of perjury that: I am authorized to act on behalf of Contractor, I have authority and knowledge regarding Contractor’s payment of taxes, the taxpayer identification number and other information provided on Contractor’s IRS W-9 or W-8 form is correct, Contractor is not subject to tax withholding, and Contractor is not in violation of any Oregon tax laws, including but not limited to a state tax imposed by ORS 320.005 to 320.150 and 403.200 to 403.250 and ORS chapters 118, 314, 316, 317, 318, 321 and 323 and the elderly rental assistance program under ORS

310.630 to 310.706 and local taxes administered by the Department of Revenue under ORS 305.620. Contractor shall continue to comply with the tax laws of this state or a political subdivision of this state during the term of the public contract.

Signature of Authorized Representative certifying the truth of all statements:

[signature] [Type name] Date

RFP ATTACHMENT B – 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.

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. Contractor certifies that it has a policy and practice of preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class that meets the requirements described in ORS 279A.112, and warrants that it will maintain the policy and practice in force during the entire term of this Contract.

c. 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.

(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 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.

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.

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.

[Required by 279B.235]

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 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.

OBDD: Assistant Director for Economic Development 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.

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. Confidential Information shall be deemed not to include information that (i) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document; (ii) is furnished by OBDD to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; or (iv) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.

b. Standard of Care. Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than the provision of Services to OBDD hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential.

c. Cooperation. Contractor agrees to comply with all reasonable requests by OBDD to ensure the confidentiality and nondisclosure of the Confidential Information, including without limitation (i) obtaining nondisclosure agreements, in a form approved by OBDD, from each of Contractor’s employees and agents who are performing Services, and providing copies of such agreements to OBDD, and (ii) performing criminal background checks on each of Contractor’s employees and agents who are performing Services, and providing a copy of the results to OBDD.

CONTRACTOR DATA AND CERTIFICATION

Name (tax filing):

Address:

Email:

Telephone: Facsimile:

Citizenship, if applicable: Non-resident alien Yes No

Business Designation (check one):

Private for-profit, or non-profit Corporation Professional Corporation

Partnership Limited Partnership

Limited Liability Company Limited Liability Partnership

Sole Proprietorship Other:

Above payment information must be provided prior to Contract approval. This information may be reported to the Internal Revenue Service (IRS) under the name and taxpayer identification submitted. (See IRS 1099 for additional instructions regarding taxpayer ID numbers.) Information not matching IRS records could subject Contractor to 31 percent backup withholding.

ORS 200.090 requires all public agencies to “aggressively pursue a policy of providing opportunities for disadvantaged business enterprises, minority-owned businesses, woman-owned businesses, businesses that service-disabled veterans owned and emerging small businesses....”

OBDD encourages Recipient, in its contracting activities, to follow good faith efforts described in ORS 200.045, available at https://www.oregonlegislature.gov/bills_laws/ors/ors200.html. The Governor’s Policy Advisor for Economic and Business Equity provides additional resources and the Certification Office for Business Inclusion and Diversity at the Oregon Business Development Department maintains a list of certified firms and can answer questions. Search for certified firms on the web at:

https://oregon4bi…