RFQ_Attachment_F_Sample_Contract.docx

ATTACHMENT — F

SAMPLE CONTRACT

STATE OF OREGON PROFESSIONAL SERVICES

AGREEMENT FOR SERVICES

Number _____ Title: _____ This Agreement for Services is between the State of Oregon, acting by and through its Oregon Business Development Department (“OBDD”), on behalf of the Oregon Arts Commission (“OAC”), and _____________ (“Contractor”). OBDD’s Contract Administrator for this Contract is listed in the attached Exhibit A. OBDD may change the Contract Administrator assignment by sending written notice to Contractor.

The purpose of this Agreement for Services (“AFS”) is to identify the form of contract and the general terms and conditions applicable to subsequent contracts entered into between OBDD and Contractor pursuant to which Contractor will render services. This Agreement, by itself, is not a binding contract. Rather, OBDD and Contractor intend to enter into binding contracts through execution of a Work Assignment Contract substantially in the form attached as Exhibit A that specifies the services to be performed and makes the standard terms and conditions set forth in Exhibit B and the Insurance requirements in Exhibit C applicable to the services. Each such Work Assignment Contract (“WAC”) so executed will create a separate contract between the parties (consisting of the Work Assignment Contract together with the standard terms and conditions) enforceable in accordance with the terms thereof and independent of all other such Work Assignment Contracts.

This AFS will become effective on the date it has been signed by every party. Unless terminated or extended, this AFS will apply only to WACs whose effective date is on or before ___________. Services authorized prior to such date continue until completed and do not expire – any delivery terms will be authorized in the applicable Work Assignment Contract.

SELECTION FOR WORK ASSIGNMENT CONTRACT

As work assignments become available, OAC will select the most suitable contractor from the Percent for Art Program Coordinator List (“List”). Contractor will be offered Work Assignments based primarily on each contractor’s:

1. Experience managing complex art projects, including past performance once the contractor has managed projects for the OAC.

2. Willingness to work in specific geographic regions.

3. Availability of hours per month and any schedule unavailability.

While OBDD will work with Contractors to resolve any performance issues, Contractor may be removed from the List at OBDD’s reasonable discretion.

WORK ASSIGNMENT CONTRACT REQUIREMENTS

If OBDD offers Contractor a WAC under this Agreement for Services, Contractor must, within four business days (or such longer time as OBDD may specify) after OBDD’s offer of the WAC, notify OBDD of Contractor’s intent to negotiate with OBDD for that WAC. If Contractor does not so notify OBDD, OBDD may offer that WAC to another contractor, or solicit separately for that work, or take other action deemed appropriate.

If Contractor does notify OBDD within the timeline identified above, OBDD and Contractor will negotiate the statement of work, delivery schedule and compensation amounts for services to be performed by Contractor. Each WAC must clearly be within the Scope of Services in the associated RFQ. If negotiations fail to conclude in an agreement, OBDD may offer that WAC to another contractor, or solicit separately for that work, or take other action deemed appropriate.

The projects will be assigned as needed and there is no guarantee that any specific amount of work or overall dollar amounts that will be assigned during the term of the AFS or that Contractor will be offered any WACs under the AFS. No Services under a WAC or WAC amendment shall begin before OBDD and Contractor have signed the WAC and other required signatures are obtained on the WAC or WAC amendment.

Contractor hours are expected to vary. Contractor shall not bill more than 120 hours per month, unless pre-approved in writing from OBDD for any particular month. Hours may be broken down to no less than ¼ hours for billing purposes.

CONTRACTOR DATA AND CERTIFICATION

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.

Certified Firms. 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, veteran-owned and emerging small businesses...” OBDD encourages Contractor in any contracting activity to follow good faith efforts as described in ORS 200.045. Additional resources are provided by the Governor’s Policy Advisor for Economic and Business Equity. Also, the Certification Office for Business Inclusion and Diversity at the Oregon Business Development OBDD maintains a list of certified firms and can answer questions. Search for certified COBID firms on the web at: https://oregon4biz.diversitysoftware.com/FrontEnd/SearchCertifiedDirectory.asp.

CONTRACTOR DATA AND TAX LAW CERTIFICATION

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 form is correct, Contractor is not subject to tax withholding, and Contractor is not in violation of any state taxes administered by the Department of Revenue under the tax laws of this state and local taxes administered by the Department of Revenue under ORS 305.620. For purposes of this Contract, Oregon tax laws do not include ad valorem property taxes collected by counties. Contractor shall continue to comply with the tax laws of this state or a political subdivision of this state during the term of this Contract.

Contractor, by the signature below of its authorized representative, acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions.

CONTRACTOR: NO SERVICES MAY OCCUR PRIOR TO NECESSARY STATE APPROVALS

CONTRACTOR

By:

Approval Signature

Title

Date

OBDD

By:

Approval Signature

Title

Date

ATTORNEY GENERAL

Approved as to Legal Sufficiency (All Contracts over $250,000, unless exempted)

Date

Exhibit A - [Sample] WORK ASSIGNMENT CONTRACT

Work Assignment Contract # ________ Agreement for Services # ______

Project Name and Location:

This Work Assignment Contract is between the State of Oregon acting through its Business Development Department (“OBDD”), on behalf of the Oregon Arts Commission (“OAC”), and _____________, (“Contractor”), and is effective as of the date of last signature hereto (the “Effective Date”). Contractor agrees to complete and deliver to OBDD the Services described in the Statement of Work set forth below, in accordance with the provisions of this Work Assignment Contract and subject to the Standard Terms and Conditions set forth in Exhibit B to that certain Professional Services Agreement for Services between OBDD and Contractor dated as of __________.

OBDD and Contractor agree and acknowledge that on the Effective Date, this Work Assignment Contract together with the Standard Terms and Conditions and the Insurance requirements will constitute a valid and binding contract between OBDD and Contractor enforceable in accordance with the terms of the foregoing documents. The term “Contract” as used in the Standard Terms and Conditions means the Work Assignment Contract together with the Standard Terms and Conditions and the Insurance requirements. OBDD and Contractor agree and acknowledge that the Contract consisting of this Work Assignment Contract and the Standard Terms and Conditions is separate from and independent of all other contracts that consist of a Work Assignment Contract and the Standard Terms and Conditions.

Unless terminated or extended, this Contract expires when OAC accepts Contractor’s performance [or on ________, ______ whichever date occurs first]. Expiration or termination does not extinguish or prejudice OAC’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.

No Services shall occur until this Work Assignment Contract is signed by all parties and all necessary State of Oregon governmental approvals are obtained.

Statement of Work/Services [Placeholder/Note to Proposer: The Statement of Work for each project/need for services for which Contractor is awarded a Work Assignment Contract will be inserted here in each final Work Assignment Contract.]

Compensation Provisions

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is [Placeholder/Note to Proposer: The not-to-exceed will be established for each project according to budget, expected complexity of project and anticipated travel costs.]

b. OBDD will pay for the actual Services performed under this Contract according to hourly billing rates of [$XX/hour]. OBDD will also pay for allowed and/or pre-approved and necessary actual direct non-labor costs itemized separately from the hourly billing rates.

Contractor agrees to invoice all Services at no greater than the hourly billing rates specified in this Work Assignment Contract. All travel reimbursement is subject to subsection d.

The allowable billable hours and expenses under a Work Assignment Contract may be limited in accordance with the limitations of the project budget.

c. Contractor shall submit invoices no more frequently than once per month requesting payment to OBDD’s Contract Administrator for approval. Contract Administrator is:

[name, title] Oregon Business Development Department 775 Summer Street Suite 310 Salem Oregon 97301-1280 [telephone; fax; Email] or as may be otherwise designated through written notice. OBDD shall pay Contractor all amounts agreed upon for the work completed in accordance with the Statement of Work, upon OBDD’s approval of Contractor’s invoice submitted (not more frequently than once per month) to OBDD in accordance with the terms of the Work Assignment Contract, but only after OBDD has determined that Contractor has completed, and OBDD has accepted, all required Services, including deliverables, for the milestone at which payment is sought. OBDD reserves the right to request, in writing, full itemization and receipts for any or all labor and direct costs billed by Contractor and such other items of costs as OBDD requests. Contractor will provide receipts to OBDD within five (5) business days of OBDD’s request. OBDD will not make payment to Contractor under the applicable invoice until OBDD has received all requested receipts from Contractor. Any overdue payments by OBDD for an approved invoice are subject to ORS 293.462.

d. Travel and approved expenses may be reimbursed as long as they are within the allowable budget allocated for the Work Assignment Contract. All other expenses must be authorized in writing by the Contract Administrator (email acceptable) before incurring the expense. Non-reimbursable expenses include insurance, printed meeting materials, or “dropbox” or other file sharing accounts. For all reasonable and necessary travel expenses, OBDD will reimburse Contractor according to the rates set forth by the State Controller at https://www.oregon.gov/das/Financial/Acctng/Pages/Travel.aspx that are in effect on the date when the travel occurs, or the actual expenses, whichever are less. Overnight travel is limited to locations 150 miles or more from Contractor’s principal place of business, and shall be no more than two nights.

CONTRACTOR

By: XXXXXXXXXX

Title

Date

STATE OF OREGON

acting by and through its Business Development Department on behalf of the Oregon Arts Commission

By: XXXXXXXXXX

Title

Date

APPROVED AS TO LEGAL SUFFICIENCY IN ACCORDANCE WITH ORS 291.047:

[Not Required per OAR 137-045-0030] /s/ [DOJ Attorney] as per email dated [dd Mmm 202Y]

[DOJ Attorney], [Senior] Assistant Attorney General

EXHIBIT B to Agreement for Services – Standard Terms and Conditions

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: Arts & Culture Director Oregon Business Development Department 775 Summer Street Suite 310 Salem OR 97301-1280

EXHIBIT C – INSURANCE REQUIREMENTS

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit prior to performing under this Contract. Contractor shall maintain such insurance in full force and at its own expense throughout the duration of this Contract, as required by any extended reporting period or continuous claims made coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to OBDD. All coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention, and self-insurance, if any.

If Contractor maintains broader coverage and/or higher limits than the minimums shown in this Exhibit, OBDD requires and shall be entitled to the broader coverage and/or higher limits maintained by Contractor.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY:

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017, and provide Workers’ Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors comply with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain Employers' Liability Insurance coverage with limits not less than $500,000 each accident.

If Contractor is an employer subject to any other state’s Workers’ Compensation law, Contactor shall provide Workers’ Compensation Insurance coverage for its employees as required by applicable Workers’ Compensation laws including Employers’ Liability Insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

As applicable, Contractor shall obtain coverage to discharge all responsibilities and liabilities that arise out of or relate to the Jones Act with limits of no less than $5,000,000 and/or the Longshoremen’s and Harbor Workers’ Compensation Act.

COMMERCIAL GENERAL LIABILITY:

Contractor shall provide Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State of Oregon. This insurance must include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this Contract, and have no limitation of coverage to designated premises, project, or operation. Coverage must be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence and not less than $2,000,000 annual aggregate limit.

AUTOMOBILE LIABILITY INSURANCE:

|X| Required |_| Not required Contractor shall provide Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

PROFESSIONAL LIABILITY:

|X| Required |_| Not required Contractor shall provide Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract by Contractor and Contractor’s subcontractors, agents, officers or employees in an amount not less than $1,000,000 per claim and not less than $2,000,000 annual aggregate limit.

If coverage is provided on a claims made basis, then either an extended reporting period of not less than 24 months shall be included in the Professional Liability insurance coverage, or Contractor shall provide Continuous Claims Made coverage as stated below.

An endorsement to the Commercial General Liability or Automobile Liability policy, covering Contractor’s or subcontractor’ liability for bodily injury, property damage and environmental damage resulting from sudden accidental and gradual pollution and related clean-up cost incurred by Contractor that arise from the goods delivered or Services (including transportation risk) performed by Contractor under this Contract is also acceptable.

EXCESS/UMBRELLA INSURANCE:

A combination of primary and Excess/Umbrella Insurance may be used to meet the required limits of insurance. When used, all of the primary and umbrella or excess policies must provide all of the insurance coverages required herein, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The umbrella or excess policies must be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, must be called upon to contribute to a loss until Contractor’s primary and excess liability policies are exhausted.

If Excess/Umbrella Insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the Excess/Umbrella Insurance.

ADDITIONAL INSURED:

All liability insurance, except for Workers’ Compensation, Professional Liability, Directors and Officers Liability and Network Security and Privacy Liability (if applicable), required under this Contract must include an Additional Insured endorsement specifying the State of Oregon, its officers, employees, and agents as Additional Insureds, but only with respect to Contractor’s goods to be delivered and Services to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

Regarding Additional Insured status under the General Liability policy, OBDD requires Additional Insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's goods to be delivered and Services to be performed under this Contract. The Additional Insured endorsement with respect to liability arising out of Contractor’s ongoing operations must be on, or at least as broad as, ISO Form CG 20 10 and the Additional Insured endorsement with respect to completed operations must be on, or at least as broad as, ISO form CG 20 37.

WAIVER OF SUBROGATION:

Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against OBDD or State of Oregon by virtue of the payment of any loss. Contractor shall obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not OBDD has received a Waiver of Subrogation endorsement from Contractor or Contractor’s insurer(s).

CONTINUOUS CLAIMS MADE COVERAGE:

If any of the required liability insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, then Contractor shall maintain continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of this Contract, for a minimum of 24 months following the later of:

1. Contractor’s completion and OBDD’s acceptance of all goods and Services required under this Contract, or

1. OBDD’s or Contractor’s termination of this Contract, or

1. The expiration of all warranty periods provided under this Contract.

CERTIFICATE(S) AND PROOF OF INSURANCE:

Contractor shall provide to OBDD Certificate(s) of Insurance for all required insurance before delivering any goods and performing any Services required under this Contract. The Certificate(s) of Insurance must list the State of Oregon, its officers, employees, and agents as a Certificate holder and as an endorsed Additional Insured. The Certificate(s) of Insurance must also include all required endorsements or copies of the applicable policy language effecting coverage required by this Contract. If excess/umbrella Insurance is used to meet the minimum insurance requirement, the Certificate(s) of Insurance must include a list of all policies that fall under the Excess/Umbrella Insurance. As proof of insurance, OBDD has the right to request copies of insurance policies and endorsements relating to the insurance requirements under this Exhibit.

NOTICE OF CHANGE OR CANCELLATION:

Contractor or its insurer shall provide at least 30 calendar days’ written notice to OBDD before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

INSURANCE REQUIREMENT REVIEW:

Contractor agrees to periodic review of insurance requirements by OBDD under this Contract and to provide updated requirements as mutually agreed upon by Contractor and OBDD.

STATE ACCEPTANCE:

All insurance providers are subject to OBDD acceptance. If requested by OBDD, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to OBDD’s representatives responsible for verification of the insurance coverages required under this Exhibit.