C2023797_CleanteachSectorStudyRFP.pdf

Request for Proposals:

“Cleantech Sector Competitiveness

Assessment and Opportunity Analysis”

Proposal due date: February 13, 2024 at 3:00 p.m. Pacific Time

OBDD RFP no. C2023797 OregonBuys no. S-12300-00009323

Mindee Sublette, Contracts Officer Oregon Business Development Department 775 Summer St., NE, Suite 200 Salem, OR 97301-1280 Telephone: 971-600-7974 Email: mindee.sublette@biz.oregon.gov mailto:mindee.sublette@biz.oregon.gov

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1.0 SOLICITATION INFORMATION AND REQUIREMENTS

1.1 GENERAL INFORMATION

The Oregon Business Development Department (“Business Oregon”, “Department” or “OBDD”), is undertaking a Cleantech Sector Competitiveness Assessment and Opportunity Analysis intended to provide a roadmap that guides Business Oregon’s efforts in retaining, expanding, and growing the Cleantech Sector in the State of Oregon.

Business Oregon is seeking proposals from a consultant or consulting firm with experience in economic analysis, stakeholder engagement, planning, and relevant industry sector expertise. With support from Business Oregon staff, the selected consultant/firm will complete the following Project: define the Cleantech Sector in Oregon, identify opportunities, goals, priorities, and strategies for growing the Cleantech Sector in Oregon, which may include the expansion of existing firms and attraction of new businesses. The Project budget shall not exceed $100,000, and the work must be completed no later than June 30, 2024.

The Department anticipates awarding one Contract from this Request for Proposals (RFP). The initial term of the Contract is anticipated to be five months with the option to extend or amend at the sole discretion of Business Oregon for any modified or added services reasonably related to the agency needs described in this RFP.

Background Business Oregon prioritizes industry sectors that demonstrate strong growth potential, innovation, high wages, competitiveness, and statewide prosperity. Resources are directed at these industries to retain and expand existing businesses and to attract new investment to the state. Business Oregon also prioritizes support to companies and industry sector segments that create public benefits beyond traditional economic metrics, including outcomes that represent equitable and inclusive benefit to the state’s varied demographic groups and geographies. To this end, the study should be conducted in a manner that includes diverse Cleantech Sector expertise, experiences, and recognizes the importance of developing goals and strategies inclusive of the state’s people and places.

1.2 DESCRIPTION OF SERVICES NEEDED \ PROPOSED STATEMENT OF WORK

Background Research, Oregon Cleantech Sector Scan, Analysis and Preliminary Report The selected Proposer will complete the following deliverables including the following tasks:

• Create and establish a proposed Cleantech Sector definition, incorporating NAICS codes, sector segments, and subsectors for Business Oregon staff to use in economic development activities.

The definition should explain what clean technologies are, clarify differentiators from other technologies and provide examples of innovations that lead to measurable economic and environmental benefits. The definition should include methods for Business Oregon to categorize potential companies in the sector.

• Quantify Cleantech Sector manufacturing job opportunities in various Cleantech Sectors with particular emphasis on those with potential for high-wage jobs and earnings growth. Include a preliminary list of Oregon-based companies, describing the range of products and services currently offered by Oregon-based companies.

• Identify and document existing resources, including assets, programs, infrastructure, and capital that are available to Cleantech Sector companies, including existing federal, state and other programs, and resources available through other economic development organizations in Oregon.

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Identify gaps in those resources as well as assets that can be leveraged to increase the scaling and adoption of Cleantech Sector technologies, including carbon reducing technologies.

• Prepare a market forecast for the Cleantech Sector in Oregon including potential sector growth, jobs, wages, tax revenue, and other public and environmental benefits. Analyze state and national level growth and emerging sector trends.

• Define and document Oregon’s competitive advantages to growing and scaling Cleantech Sectors, including human, natural, and capital assets.

• Identify and archive future workforce development, training, education, and research needs to help scale and grow Cleantech Sectors in Oregon. Determine needed skills and credentials most in demand for the Cleantech Sectors including identification of jobs and career pathways.

• Prepare and document stakeholder assets inventory of existing local, regional, state, federal, private, public, and philanthropic organizations, including universities, detailing existing capacities, resources, and respective priorities and initiatives underway to advance the Cleantech Sector.

• Examine and document existing policies and programs, state and federal, that promote the Cleantech Sector.

• Explore and document the capital investment market to expand Cleantech Sector industries including specific investment needs and opportunities Business Oregon and its partners should pursue. Identify specific capital gaps.

• Conduct and document an environmental scan the Cleantech Sector development activities in other states as well as any relevant best practices or case studies that demonstrate pathways for Oregon to similarly pursue.

• Identify and document business attraction and recruitment opportunities including potential supply chain companies to support existing Oregon Cleantech Sector companies.

Stakeholder Outreach and Engagement Plan The selected Proposer will work closely with Business Oregon staff to develop a detailed plan for inclusive stakeholder outreach and engagement to aggregate input that will inform development of the Report. The stakeholder outreach plan will:

• Utilize outreach methods that are culturally and linguistically responsive such as surveys, interviews, focus group and virtual meetings. The selected Proposer will engage with and conduct stakeholder engagement to determine needs, issues, challenges and growth opportunities. The selected Proposer will work with Business Oregon staff to identify stakeholders.

• Identify interconnected stakeholder groups, businesses, organizations, agencies, staff, and other individuals across Oregon and beyond. Include a stakeholder outreach and engagement scheduling timeline.

• Stakeholders should include sister-agencies of the State of Oregon, trade associations, Non- Governmental Organizations (NGOs), public/private partnerships and others, with a Cleantech Sector focus in their respective priorities and activities.

Resource Identification and Policy Recommendations The selected Proposer will complete the following deliverables including but not limited to the following:

• Explore funding opportunities from the Inflation Reduction Act and Bipartisan Infrastructure Law including opportunities for Business Oregon to support, leverage, and incentivize company investments.

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• Identify alignment and partnership opportunities for Business Oregon and the state to pursue. Identify state executive branch agency resources intended to support Oregon’s Cleantech Sector (both federally appropriated dollars and state appropriated dollars). Partnership opportunities should explore private, public, and philanthropic organizations. Examples of potential partners may include universities, foundations, industry, and trade groups.

• Offer policy and programmatic investment recommendations the state and Business Oregon should consider in advancement of the Cleantech Sector.

Reporting

Contractor will provide OBDD the following reports at the end of the Project including but not limited to:

• Executive Summary

• Final Project Report

Other Services The selected Proposer will provide other consultation services to Business Oregon regarding the Cleantech Sector Competitiveness Assessment and Opportunity Analysis as requested. In addition to negotiations over the tasks proposed in this RFP, Business Oregon reserves the right to amend the resulting contract to include additional services and other activities reasonably related to the subject matter of the RFP without conducting further solicitation activities.

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 via email to:

Mindee Sublette, Contracts Officer Oregon Business Development Department 775 Summer St., NE, Suite 200 Salem, OR 97301-1280 Telephone: 971-600-7974 Email: mindee.sublette@biz.oregon.gov

All questions must be received by February 6, 2024, 3:00 p.m. Substantive questions and answers will be issued as official addenda to this RFP. Changes or modifications to this RFP shall be binding on the Department only if in the form of written addenda issued by Department.

The Department will provide addenda only to firms directly solicited. Anyone who has received a copy of this RFP from a source other than Department is responsible for checking with designated procurement staff. Aside from requested copies, Department is not responsible for sending addenda to any unknown potential Proposers.

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

mailto:mindee.sublette@biz.oregon.gov

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1.4 NO AWARD PROTEST REQUIREMENTS

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

1.5 DUE DATE

Proposals must be received by February 13, 2024 on or before 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.

1.6 ELECTRONIC RESPONSES THROUGH OREGON BUYS AND EMAIL ONLY

Only electronic proposals submitted through OregonBuys or sent by email are acceptable.

OregonBuys is the preferred method for submittal. Proposals sent by fax, regular mail, and physical deliveries are not acceptable.

If the proposal is sent by email the email subject or reference line for all submittals must include the RFP title and RFP number. Proposals sent by email must be received at the following email address:mindee.sublette@biz.oregon.gov .

The Department will accept Proposals in electronic files compatible with Microsoft Office applications and Adobe PDF. The signed cover sheet required by section 2.1 must be submitted as a .PDF file. Files in excess of 15 megabytes must be submitted incrementally. Proposals must not be submitted as .zip, .exe or .com files.

1.7 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.

1.8 FORMAT FOR PROPOSALS

A Proposal must be organized in accordance with the list of scored criteria in section 2.2. A Proposal must not exceed six (6) pages, excluding the Cover Sheet and Certification (Attachment A) and the List of References (Attachment B). Department will consider the pages up to the allowable number overall and specified in specific subsections of section 2.0 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.

1.9 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 192.410 through 192.505, 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

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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.

1.10 TERMS AND CONDITIONS

By submitting its Proposal, the selected Proposer agrees to be bound by the terms and conditions of a standard State of Oregon Personal/Professional Services Contract, including requirements for insurance as determined by 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 Proposal Addressed Correctly Proposal in Acceptable Electronic File Type(s) Proposal Format and Page Limit Requirements Met Signed Cover Sheet (Attachment A) Included List of References (Attachment B) 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

2.1 COVER SHEET AND CERTIFICATION

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

2.2 LIST OF REFERENCES (no page limit)

Proposers must fill out and submit RFP Attachment B, listing applicable references. References will not be scored, but will be used as part of a “responsibility” check to verify the Proposer’s ability to perform.

2.3 SCORED INFORMATION

Qualifications 45 Points maximum

Please submit answers to the following prompts:

• Name the person or people who would conduct the work described above and briefly describe their qualifications and relevant individual experiences.

• Explain any expertise specific to project described in 1.2 above.

• Briefly describe not more than two projects that are most comparable to the requested services, including their date, duration, scope, and outcomes.

Project Approach 45 Points maximum

Provide a description of the techniques, approaches and methods that you believe are most applicable for our public agency, and critique the proposed statement of work in section 1.2 with your

C2023797_CleanteachSectorStudyRFP_Final.docx Page 7 confirmations, potential risks, and recommended changes or optional tasks to include. More specifically, please address the following:

• Discuss the methods and structure for conducting the project work as well as the methods and structure for the final deliverable, the Cleantech Sector Competitiveness Assessment and Opportunity Analysis.

• Identify aspects of the Project that will be the most challenging. How will those aspects be approached or overcome?

• Discuss your strategy to engage stakeholders to develop the Stakeholder Outreach and Engagement Plan.

Price and Value 10 Points maximum

Please list billing rates for all team members listed in your Proposal who will be working on the Project, and any other billable costs and rates.

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- 0270. 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 in Section 2.

Without limiting the possibilities allowed under OAR 137-047-0270, 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 137-047-0270, 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 NEGOTIATIONS

The Department, in its sole discretion, reserves the right to negotiate all terms and conditions in the standard State of Oregon 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.

5.0 CERTIFICATES OF INSURANCE

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

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6.0 CONTRACTOR RESPONSIBILITIES

The Proposer shall assume responsibility for any and all contractual matters, including performance of work and the stated deliverables finalized in the Contract, whether the Proposer, 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) acknowledges receipt of any and all addenda to this RFP and accepts all the terms and conditions contained in this RFP.

Mailing Address

☐ Professional Corporation ☐ Partnership ☐ Limited Partnership ☐ Ltd. Liability Company ☐ Ltd. Liability Partnership ☐ Sole Proprietorship ☐ Other __________ Originally registered in which state? Resident Bidder per ORS 279A.120? Y☐ N☐

Primary 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

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During the last ten years, has your firm changed majority ownership or been the debtor in a bankruptcy case? Yes No

If “yes,” explain

Does your firm have any outstanding judgments pending against it? Yes No

If “yes,” explain

During the last ten years, has your firm been a party to litigation, arbitration or mediation where the amount in dispute exceeded $10,000? Yes No

If “yes,” explain (Include court, and party names.)

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

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

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

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

What does “financial interest” mean?

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

What does “other interest” mean?

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

Tax Information and Tax Compliance: Any individual signing on behalf of Contractor hereby certifies under penalty of perjury: (a) Contractor’s correct taxpayer identification number is [ ___________]; (b) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding,

(ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (c) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, for a period of no fewer than six calendar years preceding the Effective Date of this Contract, Contractor has faithfully has complied with and is not in violation of: (i) all tax laws of this state, including but not limited to those included in: ORS 320.005 to 320.150 and 403.200 to 403.250 and 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 40CFR1506.5(c), Contractor has no financial or other interest in

C2023797_CleanteachSectorStudyRFP_Final.docx Page 11 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] Date

[Type name]

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RFP ATTACHMENT B - LIST OF REFERENCES

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

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

1. Reference Entity Name: __________________________________________

Reference Contact Name: __________________________________________

Contact Telephone Number: __________________________________________

Contact Email Address: __________________________________________

2. Reference Entity Name: __________________________________________

Reference Contact Name: __________________________________________

3. Reference Entity Name: __________________________________________

Reference Contact Name: __________________________________________

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RFP ATTACHMENT C – SAMPLE CONTRACT

STATE OF OREGON PERSONAL/PROFESSIONAL SERVICES CONTRACT

Number: Contract Number

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

1. Effective Date and Duration. This Contract is effective once fully executed, and approved as required by applicable law. Unless terminated earlier, this Contract terminates when OBDD accepts Contractor’s performance or on Date and Year whichever date occurs first. 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.

3. Compensation. The maximum payable to Contractor under this Contract, which includes any allowable expenses, is $Dollar Amount . Subject to the terms and conditions of this Contract, OBDD shall pay Contractor for Services rendered under this Contract as described in Exhibit A.

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 Exhibit A and Exhibit 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 cannot and 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 may not 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

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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 funding, appropriations, limitations, allotments or other expenditure authority sufficient to allow OBDD, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract. Nothing in this Contract is to be construed as permitting any violation of Article XI, section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

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, and (5) Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the effective date of this Contract, faithfully has complied with (i) all tax laws of this state, including but no limited to ORS

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

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.

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(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 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 shall 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 OBDD all intellectual property rights in the Work Product that are Third Party Intellectual Property. Contractor represents and warrants that it has provided written disclosure to 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, OBDD, 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 Contract.

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, OBDD, 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, 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

C2023797_CleanteachSectorStudyRFP_Final.docx Page 16 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 upon 30 days notice to Contractor.

c. OBDD’s Right to Terminate For Cause. OBDD may terminate this Contract 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, certification, or agreement under this Contract, including but not limited to a violation of Section 9a(5) or a failure to comply with Section 15, 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 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) or 13c(iv), OBDD has any remedy available to it under this Contract, at law or in equity, including but not limited to monetary damages. 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 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

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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. OBDD’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 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 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. Notice. Except as otherwise expressly provided in this Contract, any notices will be given in writing by personal delivery, or mailing, postage prepaid, to:

OBDD: Contract Administrator

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.

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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 subsection (c) 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 subsection (c) 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 the exhibits that are attached hereto and by this reference incorporated herein 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.