Attachment D - Sample Contract.pdf

RFQ S-12300-00011380 – OBDF Loan Referral Services ATT D

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ATTACHMENT D — Sample Contract

STATE OF OREGON PROFESSIONAL SERVICES CONTRACT

Number _____

Title: Oregon Business Development Fund Loan Referral Services This Contract is between the State of Oregon, acting by and through its Oregon Business Development Department (“Business Oregon” or “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, and continues for a period of five (5) years from the contract execution date. 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”) 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 $600,000 and is more particularly described in Exhibit A

– Compensation.

b. 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;

• Exhibits A –Statement of Work and Compensation

• Exhibit B – Insurance

• Exhibit C – Sample OBDF Loan Referral Form

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

Template_OBDF Loan Referral_Contract Page 2 of 12 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 and loan referrals that are funded by OBDD.

9. Representations and Warranties [SUBJECT TO REVISION PRIOR TO

EXECUTION]

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.

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10. Reserved.

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 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.

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(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’ written notice to OBDD if OBDD is in default and OBDD fails to cure the noticed default 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 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

Template_OBDF Loan Referral_Contract Page 5 of 12 with the prohibition set forth in ORS 652.220, and failure to comply is a breach that entitles OBDD to terminate the contract for cause.

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

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

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

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

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

Oregon Business Development Department 775 Summer Street Suite 300 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, Template_OBDF Loan Referral_Contract Page 6 of 12 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 or Federal Tax ID. 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

Template_OBDF Loan Referral_Contract Page 7 of 12 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.

30. Public Records.

All information and records submitted to OBDD are subject to the Public Records Law, ORS

192.311 to 192.478, and may be subject to disclosure. It is Contractor’s responsibility to mark submissions or portions of a submission that Contractor believes qualify under a Public Records Law exemption or other law that exempts from disclosure the submission or portion of the submission. To mark a submission or portion of a submission believed exempt from disclosure, Contractor shall clearly identify in the body of the submission the material that is believed exempt from disclosure with words such as “CONFIDENTIAL – DO NOT DISCLOSE” or other words to the same effect. Notwithstanding the foregoing, Contractor’s failure to mark a submission or portion of a submission, shall not be conclusive evidence as to whether a submission was submitted in confidence or is subject to disclosure.

The parties acknowledge the following:

a. Any financial statements that Contractor provides from a borrower are submitted to OBDD in confidence and on the condition that OBDD will, to the best of its ability, maintain the financial statements as confidential;

b. No statute requires Contractor to submit a borrower’s financial statements to OBDD;

c. A borrower’s financial statements are the type of business record that should be kept confidential; and

d. Public disclosure of a borrower’s financial statements would likely cause harm to the borrower and to OBDD’s program.

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OBDD will not disclose confidential information and records or portions thereof unless required by Oregon Public Records Law and to the extent disclosure is required by other law, court order or government order, including orders from the Attorney General. OBDD agrees to not exercise its authorized discretion to disclose information and records, including but not limited to financial statements, or portions thereof that would be otherwise exempt from Oregon Public Records Law.

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.

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, service-disabled 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.

https://oregon4biz.diversitysoftware.com/FrontEnd/SearchCertifiedDirectory.asp?XID=2315&TN=oregon4biz

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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 Oregon tax laws, including but not limited to a state tax imposed by ORS 305.380, 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 310.657 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 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

Approval Signature Title Date

STATE

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

OBDD

Approval Signature Title Date

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EXHIBIT A – STATEMENT OF WORK AND COMPENSATION

[THIS EXHIBIT IS SUBJECT TO NEGOTIATION AND IS ONLY PROVIDED AS AN

EXAMPLE]

Statement of Work

Contractor will provide the following services to OBDD:

a. Promote and market the Oregon Business Development Fund (“OBDF”) program as well as the suite of business finance programs and business development tools administered by Business Oregon. Other business finance programs include but are not limited to:

a. Capital Access Program (“CAP”),

b. Credit Enhancement Fund (“CEF”),

c. Entrepreneurial Development Loan Fund (“EDLF”),

d. Industrial Development Bonds (“IDB”), and

e. Oregon Royalty Fund (“ORF”).

b. Identify eligible loan referrals for the OBDF loan program, with a focus on referrals that promote:

a. Job creation and job retention in Oregon;

b. Economic growth in Rural Distressed Areas; and

c. Traded sector companies.

c. Submit loan referrals to OBDD that meet OBDF loan program requirements in ORS 285B.050 through ORS 285B.098 and OAR Chapter 123, Division 017, using the “OBDF Loan Referral Application” form (“Application”), as amended from time to time. A sample Application is attached as Exhibit C. Only completed Applications meeting program criteria as specified in the Application instructions will be accepted. Funding of OBDF eligible loans based on OBDD’s review of accepted and completed applications will be at OBDD’s sole discretion.

d. Leverage private lending sources on behalf of the borrower and in coordination with OBDD, provide local support to borrowers, and act as a connecting resource between Business Oregon, lenders and referred borrowers.

e. Provide recognition of Business Oregon and the OBDF loan program in Contractor’s promotional and media materials.

The parties may mutually agree in writing to amendments to Contractor’s obligations under this Contract. OBDD approval must be given by a person with authority to contractually bind OBDD. In no event can the adjusted delivery schedule exceed the expiration date of the Contract.

If OBDD determines that any applications are not acceptable and that any deficiencies are the responsibility of the Contractor, OBDD will prepare a detailed written description of any deficiencies and an associated time frame for correction, and deliver such notice to Contractor in a timely manner. Contractor will correct any deficiencies within the time specified in the notice and at no cost to OBDD. If the corrective work will cause any further delays in Contractor’s Services, the Contractor will submit a plan for regaining the delivery schedule for remaining Services under this Contract, unless otherwise allowed by OBDD.

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Compensation A. Payment Methodology and Basis for Payment.

For reach OBDF loan that OBDD funds as a result of Contractor’s referral, OBDD will pay Contractor a loan referral fee of 0.75% of the OBDD approved and funded OBDF loan. In no case will OBDD pay a loan referral fee that exceeds $15,000 per OBDF loan.

Notwithstanding the previous paragraph, the total aggregate compensation under this Contract, including any extensions, will not exceed $600,000.

Payment of a referral fee is subject to OBDD’s successful closing of the OBDF referred loan, including borrower payment of all applicable Business Oregon loan fees and closing costs.

OBDD will not divide referral fees for individual referrals between OBDF loan referral contractors.

If multiple OBDF loan referral contractors submit referrals for the same project, OBDD will pay the contractor that submitted a complete and accepted referral first. Any subsequent referrals will not be accepted or receive compensation.

B. Invoices and Payments. In order to receive payment of a loan referral fee, Contractor must submit an invoice to OBDD within 30 days after the end of the month in which the Application is funded by OBDD. Failure to submit invoices within the timeframe set in the previous sentence or within 30 days of the expiration of this Contract will result in Contractor’s waiver of any right to present such invoices and to receive payment thereof.

Invoices must include the OBDD contract number. Contractor will submit invoices requesting payment to OBDD’s Contract Administrator for approval. OBDD Contract Administrator is:

Thomas Schnell, Business Finance Officer Oregon Business Development Department 775 Summer Street Suite 300 Salem, Oregon 97301-1280 thomas.schnell@biz.oregon.gov 541-280-1631 or as may be otherwise designated through written notice. If progress payments are provided, Contractor cannot submit invoices to OBDD’s Contract Administrator any more frequently than once per month. Any overdue payments by OBDD for an approved invoice are subject to ORS 293.462.

C. Corrective Work. Contractor is responsible to complete all Services, including applications, as defined in the Statement of Work to the satisfaction of OBDD. If OBDD, in its sole discretion, determines that the applications or Services are unacceptable, Contractor is responsible to correct any deficiencies in the applications or Services to OBDD’s satisfaction without further compensation. OBDD may withhold other payments until any deficiencies have been corrected to OBDD’s satisfaction.

D. Travel. OBDD will not reimburse Contractor for travel expenses incurred under this Contract.

mailto:thomas.schnell@biz.oregon.gov

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EXHIBIT B – INSURANCE

During the term of this Contract, Contractor will maintain in force at its own expense, each insurance noted below:

1. Required by OBDD of contractors with one or more workers, as defined by ORS 656.027.

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, will comply with ORS 656.017 and will provide workers’ compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor will require and ensure that each of its subcontractors complies with these requirements.

2. Required by OBDD Not required by OBDD

Professional Liability insurance with a combined single limit, or the equivalent, of not less than $200,000, $500,000, $1,000,000, or $2,000,000 each claim, incident or occurrence This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this Contract.

3. Required by OBDD Not required by OBDD

General Liability insurance with a combined single limit, or the equivalent, of not less than $200,000, $500,000, $1,000,000, or $2,000,000 each occurrence for Bodily Injury and Property Damage. It will include contractual liability coverage for the indemnity provided under this Contract.

The policy will be endorsed to name State of Oregon, the Oregon Business Development Department, its officers and employees as Additional Insureds but only with respect to the Contractor’s commercial services to be provided under this Contract.

4. Required by OBDD Not required by OBDD

Automobile Liability Contractor will obtain, at Contractor’s expense, and keep in effect during the term of this Contract, Commercial Business Automobile Liability Insurance covering all owned, non-owned, or hired vehicles. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits). Combined single limit per occurrence cannot be less than Oregon Financial Responsibility Law (ORS 806.060), $200,000, $500,000, or $1,000,000, each accident for Bodily Injury and Property Damage, including coverage for owned, hired or non-owned vehicles, as applicable. The policy will be endorsed to name the State of Oregon, the Oregon Business Development Department, its officers and employees as Additional Insureds but only with respect to the Contractor’s commercial services to be provided under this Contract.

5. Notice of cancellation or change. There will be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) without 30 days prior written notice from the Contractor or its insurer(s) to OBDD.

6. Certificates of insurance. As evidence of the insurance coverages required by this Contract, the Contractor will furnish acceptable insurance certificates to OBDD prior to commencing the Services.

The certificate will specify “The State of Oregon, the Oregon Business Development Department, its officers and employees” as Additional Insureds for Automobile and General Liability. It need not reference a specific Contract name or number. Insuring companies or entities are subject to OBDD acceptance. If requested, complete copies of insurance policies, trust agreements, et cetera, will be provided to OBDD. The Contractor is financially responsible for all pertinent deductibles, self-insured retentions and/or self-insurance.