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Home My WebLink About18- Big Sky Economic Development Trust Fund Grant - XY Planning Network, LLC, MT-BSTF-1-19-07 f__EtL t DocuSi`'n Envelope ID:AB5685BA-77F3-4B7C-A888-9441E26967EA '� ALw MONTANA DEPARTMENT OF COMMERCE BIG SKY ECONOMIC DEVELOPMENT TRUST FUND PROGRAM CONTRACT # MT-BSTF-1-19-07 This Contract is entered into by the City of Bozeman, P O Box 1230 Bozeman, Montana 59771-1230 (the "Contractor"), and the Montana Department of Commerce, Helena, Montana (the "Department"). The Contractor and the Department hereby agree to the following terms: Section 1. PURPOSE The purpose of this Contract is to provide funding for Big Sky Economic Development Trust Fund (BSTF) Program (the Program) Economic Development Job Creation Project activities approved by the Department which the Contractor has applied for project funds pursuant to Sections 90-1-201 et seq., Montana Code Annotated (MCA). Program funds have been awarded to assist the Contractor and XY Planning Network, LLC, 135 E Main Street, Bozeman, MT 59715-4761, (the "Assisted Business") with wage reimbursement and the creation of jobs in Montana. The Assisted Business has agreed to create 10 eligible net new jobs at the project site located in Bozeman, Montana, (the "Project Site") in the Contractor's jurisdictional area within the Contract time period. An eligible net new job is defined as one that is new to the company and has not been filled before July 19, 2018. Eligible new job criteria is a full-time job, meaning a predominantly year-round position requiring an average of 35 hours of work each week, and pays wages that meet or exceed $19.58 per hour, before the value of benefits is added. In addition, the Contractor and the Assisted Business have agreed to a total new investment at the Project Site, which is equal to or greater than $1 for every $1 of BSTF financial assistance received, within this Contract time period. Section 2. SCOPE OF WORK The Contractor hereby agrees to engage in Project activities as set forth in the Contractor's application, including any written modifications resulting from the review of the application by the Department for Project assistance, all of which, by this reference are made a part hereof. The major components of the Project include the wage reimbursement, and documentation that the matching requirement has been met and documentation of eligible job creation in Bozeman, Montana, and the administration of this Contract. Page 1 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:A135685BA-77173-4KC-A888-9441E269B7EA Section 3. AUTHORITY This Contract is issued under authority of Title 90, Chapter 1 , Part 2, Montana Code Annotated, and the Administrative Rules of Montana, Title 8, Chapter 99. Section 4. APPLICATION INCORPORATED BY REFERENCE The Contractor's application for Program assistance and all appendices thereto, including any written modifications resulting from the review of the application by the Department (collectively, the "Project"), is incorporated into this Contract by this reference and the representations made therein are binding on the Contractor. Section 5. ACCEPTANCE OF PROGRAM REQUIREMENTS (a) The Contractor shall comply with all applicable local, state, tribal, and federal laws, regulations, ordinances, and resolutions, and all administrative directives and procedures established by the Department, including all the provisions, guidelines and requirements set forth on the Program's website: http://bstf.mt.gov. (b) The Contractor expressly agrees to repay to the Department any funds advanced under this Contract that the Contractor, or its contractors, subcontractors, or sub recipient entities, or any public or private agent or agency to which it delegates authority to carry out portions of this Contract, expends in violation of the terms of this Contract, the statutes and regulations governing the Program, or any applicable local, state, tribal, or federal requirements. Section 6. EFFECTIVE DATE AND TIME OF PERFORMANCE (a) This Contract shall take effect on July 19, 2018 and will terminate upon completion of the final closeout by the Department, or by July 19, 2019, whichever comes first, unless otherwise terminated in accordance with the terms of this Contract. (b) All Program award monies must be expended by the Contractor within the timeline specified in the Contractor's application, which by reference is made a part of this Contract. The Contractor may modify the implementation schedule set forth in the Contractor's application only upon obtaining prior approval of the Department. (c) Each party, after termination of this Contract, remains subject to and obligated to comply with all legal and continuing contractual obligations arising in relation to its duties and responsibilities that may arise under the contract including, but not limited to, record retention, audits, and indemnification. d) The Department reserves the right to extend this Contract based on but not limited to the Contractor's performance of the contracted activities, the Contractor's compliance with program requirements and the availability of program funding. Page 2 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSiyn Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E26967EA Section 7. BUDGET (a) The total amount to be awarded to the Contractor under this Contract will not exceed $50,000.00 to be used as follows: • Up to $46,000.00 to assist the Assisted Business with wage reimbursement and; • Up to $4,000.00 for eligible administrative expenses. (b) The Project budget is set forth in the application, as submitted by the Contractor and approved by the Department, and as specifically incorporated by this reference. The Department must approve budget adjustments to the Project in advance. To obtain approval of a budget adjustment, the Contractor shall describe the rationale for a budget adjustment in writing to the Department. (c) Any Project expenses the Contractor fails to incur on or before July 19, 2019 will revert to the Big Sky Economic Development Trust Fund. Section 8. CONDITIONS ON METHOD OF REIMBURSEMENT (a) The total amount to be awarded to the Contractor under the Contract shall be up to $5,000.00 per eligible net new job created by the Assisted Business for documented costs with reimbursement not to exceed a total of$50,000.00 for the entire Contract. The Department will not reimburse the Contractor for any costs incurred prior to July 19, 2018, nor for any expenses not included in the approved budget or not clearly and accurately supported by the Contractor's records. (b) The Contractor and the Assisted Business shall satisfy the matching funds requirements consistent with the purposes expressed in the application during the period of the Contract and shall meet or exceed the 1:1 required match ratio. (c) Unless otherwise authorized by the Department,the Contractor may receive award funds periodically over the Contract period only upon documenting the expenditure of the required matching funds and the creation of the eligible net new jobs by the Assisted Business, and after incurring eligible expenses. (d) The Department will use funds appropriated for the Program to fund awards to those entities that have received a Notice of Award letter. The Contractor acknowledges that its access to Program funds is subject to their availability. Page 3 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA (e) The Department agrees that, if and when the funds described in paragraph (a) of this Section are available, the Department will authorize the Contractor to request payment from Program funding awarded for the Contractor's Project. In requesting reimbursement, the Contractor will follow the instructions supplied by the Department. (f) The Contractor shall satisfy the matching funds requirements consistent with the purposes expressed in the Contractor's application during the period of the Contract. (g) The Department will only release funds to reimburse eligible and documented costs. Funds can be requested by sending a Request for Payment, in the format prescribed by the Department, signed by duly authorized representatives of the Contractor. (h) As further set forth in Section 5 ACCEPTANCE OF PROGRAM REQUIREMENTS, and Section 24 TERMINATION OF CONTRACT, if the Contractor fails to or is unable to comply with any of the terms and conditions of this Contract, any costs incurred will be the Contractor's sole responsibility and the Contractor agrees to repay to the Department any funds advanced under the Contract. (i) The Project funds may not be used to cover any costs incurred by the Contractor prior to July 19, 2018, for any expenses not included in the Contractor's application or an approved adjustment thereto, or for any expenses not clearly and adequately supported by the Contractor's records. (j) Once the Department has determined a Request for Payment to be complete, the Department is allowed thirty (30) working days to process a Request for Payment. The Contractor shall provide signatory and banking information at the time of Contract execution in order to facilitate electronic funds transfer payments. The Department may withhold payments to the Contractor if the Contractor has breached the terms of this Contract. (k) If actual Project expenses are less than projected in the budget, the Department, at its discretion, may reduce the amount of BSTF funds to be provided to the Contractor accordingly. (1) If the Department determines that the Contractor has failed to satisfactorily carry out its responsibilities under this Contract, the Department may withhold payment to the Contractor until such time as the parties agree on a plan to remedy the deficiency. (m) The Department reserves the right to withdraw a commitment of any Program funds for projects not ready to proceed within three (3) months after the date of tentative award. Page 4 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:A85685BA-77173-467C-A888-9441E269137EA (n) If the Assisted Business creates an eligible new job but fails to sustain that job for the requisite duration, then the Contractor shall reimburse the Department all funds received for that job. If the Assisted Business fails to create the required number of jobs, then the Contractor shall reimburse the Department the difference between the total amount advanced and the amount attributable to actual jobs created. If the Assisted Business ceases operation at the Project Site, then the Contractor shall reimburse the Department all funds received under this Contract. (o) At the request of the Department, Requests for Payment for contracted or subcontracted services must attach appropriate documentation demonstrating compliance with contract requirements. (p) The Contractor may not use monies provided through this Contract as payment for Project costs that are reimbursed from other sources. (q) The Department will withhold ten percent(10%) of the total amount awarded to the Contractor until the Department approves the complete the job creation and all tasks outlined in Section 2 SCOPE OF WORK are completed by the Contractor and approved by the Department. Section 9. REPORTING REQUIREMENTS (a) Quarterly Project Progress Reports. Unless otherwise specified by the Department, the Contractor will also submit Project Progress Reports quarterly to the Department until the Contractor receives Contract closeout approval from the Department. The Project Progress Report must be provided on or before April 30th to cover the January 1-March 31 reporting period, July 31st to cover the April 1-June 30 reporting period, October 31st to cover the July 1-September 30 reporting period, and January 31st to cover the October 1-December 31 reporting period, for each year of the Contract period and at closeout of the Contract. These reports will describe the status of the activities set forth in Section 2 SCOPE OF WORK, including, at a minimum: • Certified employment documentation from the Assisted Business that includes the breakdown of jobs created, using the Job Status Spreadsheet and accompanying Job Certification Form; Written Progress Report that should include the following items: o detailing progress towards achieving the hiring objectives and project goals that were described in the application; o projected completion date; o any difficulties encountered in working towards these goals; o any changes within the assisted business structure, business name or changes to its registration with the Montana Secretary of State's office; o any other pertinent information Page 5 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269137EA (b) The employment level of XY Planning Network, LLC, one day prior to the contract effective date of July 19, 2018 is 16 permanent, full-time employees onsite, per the certified baseline job report. (c) The report must also describe any significant problems encountered in carrying out the Project and the scope of any necessary modifications the Contractor is requesting in the SCOPE OF WORK, BUDGET, or Project implementation schedule. The State, at its discretion, may decline to honor the final ten percent (10%) Request for Payment if any required project progress reports have not been submitted. (d) Request for Payment with Report. Request for Payment with reports must include all items listed in Section 9(a), plus the following: • The Request for Payment Form signed by two authorized representatives, • Project Progress Report detailing progress towards achieving the hiring objectives and project goals that were described in the application as well as describing any difficulties encountered in working towards these goals, • Approved documentation verifying eligible costs were incurred, • Documentation of matching funds expended to date. (e) Protect Closeout. Upon completion of the final Project, the Contractor will submit a signed final Project Completion Report. The Project Completion report should include all items in Section 9(a) and (c), with a request for payment for the final 10% of the award. • Once the Department accepts the final Project Completion Report and the final payment is processed, the Contractor will complete a Closeout Certification Form. • Once the Department approves the Closeout Certification Form from the Contractor, the Department will officially closeout the project and send a letter of closeout to the Contractor. The Department may request additional documentation, when in the exercise of its judgment such documentation is needed to confirm performance. To assist the Department with program performance reporting, the BSTF award recipient may be required to provide annual project updates for 3 years after the close of the contract. Page 6 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269137EA Section 10. LIAISONS The contact persons for this Contract are: For the Department: Annmarie Robinson (or successor) Section Manager, Big Sky Economic Development Trust Fund Program, MDOC P.O. Box 200505 Helena, MT 59620-0505 406-841-2250 For the Contractor: Cyndy Andrus (or successor) Mayor, City of Bozeman P O Box 1230 Bozeman, MT 59771-1230 406-579-1302 Section 11. PROJECT MEETINGS (a) Progress Meetings. During the term of the Contract, the Department may plan and schedule progress meetings with the Contractor to discuss the progress made by the Contractor and the Department in the performance of their respective obligations. These progress meetings may include the parties' liaisons and any other additional personnel involved in the performance of the contract as required. At each such meeting, the Contractor may be requested to provide the Department with a written status report that identifies any problem or circumstance encountered by the Contractor, or of which the Contractor gained knowledge during the period since the last such status report, which may prevent the Contractor from completing any of its obligations or may generate charges in excess of those previously agreed to by the parties. Contractor may be requested to identify the amount of excess charges, if any, and the cause of any identified problem or circumstance and the steps taken to remedy the same. (b) Technical or Contractual Problems. The Contractor is required to meet with the Department's liaison to resolve technical or contractual problems that may occur during the term of the Contract, at no additional cost to the Department. Meetings will occur as problems arise and will be coordinated by the Department. Failure to participate in problem resolution meetings or failure to make a good faith effort to resolve problems may result in termination of the Contract. Section 12. ACCESS TO AND RETENTION OF RECORDS The Contractor shall create and maintain records of the services covered by this Contract, including but not limited to financial records, supporting documents, and such other records as are required by law or other authority, and to provide the Department, Montana Legislative Auditor, or their authorized agent's access to any records necessary to Page 7 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269137EA determine contract compliance. (Mont. Code Ann. § 18-1-118.) The Contractor agrees to create and retain records supporting the services rendered or supplies delivered for a period of three (3) years after either the completion date of the Contract or the conclusion of any claim, litigation, or exception relating to the Contract taken by the State of Montana or third party, whichever is later. These records will be kept in the Contractor's offices in Bozeman, Montana. Section 13. PROJECT MONITORING (a) The Department or any of its authorized agents may monitor and inspect all phases and aspects of the Contractor's performance to determine compliance with the SCOPE OF WORK, the proper use of Program funds, and other technical and administrative requirements of this Contract, including the adequacy of the Contractor's records and accounts. The Department will advise the Contractor of any specific areas of concern and provide the Contractor opportunity to propose corrective actions acceptable to the Department. (b) Failure by the Contractor to proceed with reasonable promptness to take necessary corrective actions shall be a default. If the Contractor's corrective actions remain unacceptable, the Department may terminate this Contract in whole or in part, or reduce the contract price or award to reflect the reduced value of services received. Section 14. COMPLIANCE WITH APPLICABLE LAWS The Contractor must, in performance of work under the Contract, fully comply with all applicable federal, state, or local laws, rules and regulations, including Executive Order No. 12-2015 Amending and Providing For Implementation of the Montana Sage Grouse Conservation Strategy , the Montana Human Rights Act, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act ("Affordable Care Act"). Any subletting or subcontracting by the Contractor subjects subcontractors to the same provisions. In accordance with Mont. Code Ann. § 49-3-207, Executive Order No. 04-2016, the Grantee agrees that the hiring of persons to perform the Contract will be made on the basis of merit and qualifications and there will be no discrimination based upon race, color, sex, pregnancy, childbirth or medical conditions related to childbirth, political or religious affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual orientation, gender identity or expression, national origin, ancestry, age, disability, military service or veteran status, or marital status. The Affordable Care Act requires a Contractor, if Contractor is an applicable large employer under the ACA, to provide healthcare coverage for its employees, who provide services for the State and work for 30 or more hours per week. This coverage must also cover the eligible employee's dependents under the age of 26. The coverage must (a) meet the minimum essential coverage, minimum value, and affordability requirements of the employer responsibility provisions under Section 4980H Page 8 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA of the Code (ACA), and (b) otherwise satisfy the requirements of the Code § 4980 H (ACA) if provided by the State. Section 15. AVOIDANCE OF CONFLICT OF INTEREST The Contractor will comply with all applicable laws regarding the avoidance of conflict of interest. In addition, the Contractor agrees that none of its officers, employees, or agents will solicit or accept gratuities, favors, or anything of monetary value from contractors, subcontractors, or potential contractors and subcontractors, who provide or propose to provide services relating to the project funded under this Contract. Section 16. ACCOUNTING, COST PRINCIPLES, AND AUDITING (a) The Contractor, in accordance with Section 18-4-311, MCA; 5 U.S.C. App. 3 §§ 1 et seq.; OMB Circular A-133; and other authorities, must maintain for the purposes of this Contract an accounting system of procedures and practices that conforms to Generally Accepted Accounting Principles (GAAP). (b) The Department, Montana Legislative Auditor, Inspector General of the U.S. Department of Commerce, or any other legally authorized governmental entity or their authorized agents may, at any time during or after the term of this Contract, conduct, in accordance with Sections 5-13-204 and 18-1-118, MCA; 5 U.S.C. App. 3 §§ 1 et seq.; OMB Circular A-133; and other authorities, audits for the purposes of ensuring the appropriate administration and expenditure of the monies provided through this Contract and to ensure the appropriate administration and delivery of services provided through this Contract. (c) The Contractor, for purposes of audit and other administrative activities, in accordance with 18-1-118, MCA; 5 U.S.C. App. 3 §§ 1 et seq.; OMB Circular A- 133; and other authorities, must provide the Department, Montana Legislative Auditor, Inspector General of the U.S. Department of Commerce, or any other legally authorized governmental entity or their authorized agents access at any time to all of their respective records, materials and information, including any and all audit reports with supporting materials and work documents, pertinent to the services provided under this Contract until the expiration of three (3) years from the completion date of this Contract. The Department and any other legally authorized governmental entity or their authorized agents may record any information and make copies of any materials necessary for the conduct of an audit or other necessary administrative activity. Section 17. OWNERSHIP AND PUBLICATION OF MATERIALS All reports, information, data, and other materials prepared by the Contractor, or any of its contractors or subcontractors, in furtherance of this Contract are the property of the Contractor and the Department, which both have the royalty-free, nonexclusive, and Page 9 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, in whole or part, such property and any information relating thereto. No material produced in whole or part under this Contract may be copyrighted or patented in the United States or in any other country without the prior written approval of the Department and the Contractor. Section 18. ASSIGNMENT, TRANSFER, AND SUBCONTRACTING (a) The Contractor may not assign, transfer, delegate, or subcontract, in whole or part, this Contract or any right or duty arising under this Contract, unless the Department in writing approves the assignment, transfer, delegation, or subcontract. (b) Any assignment, transfer, delegation, or subcontract entered into by the Contractor must be in writing, must be subject to the terms and conditions of this Contract, and must contain any further conditions as may be required by the Department. (c) The Department's approval of any assignment, transfer, delegation, or subcontract neither makes the Department a party to that contract nor creates any right, claim, or interest in favor of any party to that contract against the Department. (d) The Contractor must immediately notify the Department of any litigation concerning any assignment, transfer, delegation, or subcontract. Section 19. HOLD HARMLESS AND INDEMNIFICATION The Contractor agrees to protect, defend, and save the Department, its elected and appointed officials, agents, and employees, while acting within the scope of their duties as such, harmless from and against all claims, demands, causes of action of any kind or character, including the cost of defense thereof, to the extent arising in favor of the Contractor's employees or third parties on account of bodily or personal injuries, death, or damage to property arising out of Contractor's negligence in connection with services performed or omissions of services or in any way resulting from the negligent acts or omissions of the Contractor and/or its agents, employees, representatives, assigns, contractors, subcontractors, except the sole negligence of the Department under this agreement. Section 20. INSURANCE (a) General Requirements. Contractor shall maintain and shall assure that its representatives, assigns, and subcontractors maintain for the duration of the Contract, at their own cost and expense, liability insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the duties and obligations in the Contract by Contractor, its agents, employees, representatives, assigns, or subcontractors. This insurance shall cover such claims as may be caused by any negligent act or omission. The Department, its officers, officials, and employees are to be covered as additional Page 10 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA insured's for all claims arising out of the use of award proceeds provided by the State of Montana. (b) General Liability Insurance. At its sole cost and expense, the Contractor shall purchase occurrence coverage with minimum combined single limits of $1 million per occurrence and $2 million aggregate per year, or as established by statutory Tort limits of$750,000 per claim and $1,500,000 per occurrence as provided by a self-insurance pool insuring counties, cities, or towns, as authorized under Section 2-9-211, MCA. (c) Professional Liability Insurance. Contractor shall assure that any representatives, assigns, and subcontractors performing professional services under this Contract purchase occurrence coverage with combined single limits for each wrongful act of $1,000,000 per occurrence and $2,000,000 aggregate per year. Note: if "occurrence" coverage is unavailable or cost prohibitive, the Contractor may provide "claims made" coverage provided the following conditions are met: (1) the commencement date of the contract must not fall outside the effective date of insurance coverage and it will be the retroactive date for insurance coverage in future years; and (2) the claims made policy must have a three (3) year tail for claims that are made (filed) after the cancellation or expiration date of the policy. (d) Property Insurance. At its sole cost and expense, the Contractor shall maintain property and hazard insurance, including course of construction coverage, and earthquake insurance in areas where there is a shaking level above 10g (see map at http://www.rmtd.mt.gov/content/aboutus/publications/files/NEHRP.pdf) for loss or damage for any building and all related improvements and contents therein on the premises on a replacement cost basis throughout the term of the contract. (e) General Provisions. All insurance coverage shall be placed with a carrier licensed to do business in the State of Montana or by a domiciliary state and with a Best's rating of at least A-, or by a public entity self-insured program either individually or on a pool basis as provided by Title 2, MCA. All certificates and endorsements are to be received by the Department prior to beginning any activity provided for under the Contract. Contractor shall notify the Department immediately of any material change in insurance coverage, such as changes in limits, coverage, change in status of policy, etc. The Department reserves the right to request complete copies of Contractor's insurance policy including endorsements at any time. Section 21. INDEPENDENT CONTRACTOR The Contractor and its employees or agents performing under this Contract are not employees or agents of the Department. The Contractor will not claim to be an officer or employee of the Department by reason of this Contract, nor will it make any claim of right, privilege or benefit which would accrue to a civil service employee of the State of Montana. Page 11 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269137EA Section 22. DEBARMENT The Contractor certifies and agrees to ensure during the term of this Contract that neither it nor its principals, contractors, or subcontractors are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this Contract by any governmental department or agency. If the Contractor cannot certify this statement, it has attached a written explanation for review by the Department. Section 23. CONTRACT AMENDMENT Except as otherwise set forth herein, this Contract may not be enlarged, modified, or altered except upon written agreement by all parties to the Contract. Section 24. TERMINATION OF CONTRACT This Contract may only be terminated in whole or in part as follows: (a) Termination Due to Loss or Reduction of Funding. The Department, at its sole discretion, may terminate or reduce the scope of this Contract if available funding sources are eliminated or reduced for any reason. If a termination or modification is so required, the Department may, if sufficient program funds are available, compensate the Contractor for eligible services rendered and actual, necessary, and eligible expenses incurred as of the revised termination date. The Department will notify the Contractor of the effective date of the termination or modification of this Contract and, if a reduction in funding is required, will provide the Contractor with a modified Project budget. (b) Termination for Cause with Notice to Cure Requirement. The Department may terminate this Contract for failure of the Contractor, its contractors, or subcontractors to perform or comply with any of the services, duties, terms or conditions contained in this Contract after giving the Contractor written notice of the stated failure. The written notice will demand performance of the stated failure within a specified period of time of not less than thirty (30) days. If the demanded performance is not completed within the specified period, the termination is effective at the end of the specified period. (c) Effect of Termination. In the event of termination due to the Contractor's, its contractors', or subcontractors' failure to perform or comply with any of the services, duties, terms, or conditions of this Contract, the Contractor shall return all funds received under this Contract. Any costs incurred will be the responsibility of the Contractor. However, at its sole discretion, the Department may approve requests by the Contractor for reimbursement of expenses incurred. The Department's decision to authorize payment of any costs incurred or to recover expended Program funds will be based on a consideration of the Page 12 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E269B7EA extent to which the expenditure of those funds represented a good faith effort of the Contractor to comply with the any of those services, duties, terms, or conditions of this Contract, and on whether the failure to comply with any of those services, duties, terms, or conditions resulted from circumstances beyond the Contractor's control. Section 25. DEFAULT Failure on the part of either party to perform the provisions of the Contract constitutes default. Default may result in the pursuit of remedies for breach of contract as set forth herein or as otherwise legally available, including but not limited to damages and specific performance. Section 26. NO WAIVER OF BREACH No failure by the Department to enforce any provisions hereof after any event of breach shall be deemed a waiver of its rights with regard to that event, or any subsequent event. No express failure of any event of breach shall be deemed a waiver of any provision hereof. No such failure or waiver shall be deemed a waiver of the right of the Department to enforce each and all of the provisions hereof upon any further or other breach on the part of the Contractor. Section 27. COMPLIANCE WITH WORKERS' COMPENSATION ACT The Contractor accepts responsibility for supplying, and requiring all subcontractors to supply, the Department with proof of compliance with the Montana Workers' Compensation Act while performing work for the State of Montana. (Mont. Code Ann. §§ 39-71-401, 39-71-405, and 39-71-417.) Neither the Contractor nor its employees are employees of the State. The proof of insurance/exemption must be in the form of workers' compensation insurance, an independent contractor exemption, or documentation of corporate officer status and must be received by the Department within 10 working days of the execution of this Contract, and must be kept current for the entire term of the contract. CONTRACTS WILL BE TERMINATED PURSUANT TO THE PROVISIONS OF SECTION 24 TERMINATION OF CONTRACT IF THE CONTRACTOR FAILS TO PROVIDE THE REQUIRED DOCUMENTATION WITHIN THE ALLOTTED TIME FRAME. Coverage may be provided through a private carrier or through the State Compensation Insurance Fund (406) 444-6500. An exemption can be requested through the Department of Labor and Industry, Employment Relations Division (406) 444-1446. Corporate officers must provide documentation of their exempt status. Page 13 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269137EA Section 28. FORCE MAJEURE Neither party shall be responsible for failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, terrorist acts, or any other causes, directly or indirectly beyond the reasonable control of the non-performing party, so long as such party is using its best efforts to remedy such failure or delays. Section 29. SEPARABILITY A declaration by any court, or any other binding legal forum, that any provision of the Contract is illegal and void shall not affect the legality and enforceability of any other provision of the Contract, unless the provisions are mutually dependent. Section 30. NOTICE All notices required under the provisions of the Contract must be in writing and delivered to the parties' liaisons identified herein either by first class mail or personal service. Section 31. NO ARBITRATION Unless otherwise agreed to in writing or provided for by law, arbitration is not available to the parties as a method of resolving disputes that would arise under the Contract. Section 32. REFERENCE TO CONTRACT The Contract number must appear on all invoices, reports, and correspondence pertaining to the Contract. Section 33. JURISDICTION AND VENUE This Contract is governed by the laws of Montana. The parties agree that any litigation concerning this Contract must be brought in the First Judicial District in and for the County of Lewis and Clark, State of Montana, and each party shall pay its own costs and attorney fees. (Section 18-1-401, MCA). Section 34. FUNDING ACKNOWLEDGEMENT All materials developed wholly or in part by the funding provided under the Contract shall state that "The funding for the (insert name of project) was funded (in part, if applicable) by an award from the Montana Department of Commerce." Any variations from this language must be approved by the Department prior to use. The Department of Commerce logo is also available for use upon request. Page 14 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E26967EA Section 35. INTEGRATION This contract contains the entire agreement between the parties, and no statements, promises, or inducements of any kind made by either party, or the agents of either party, not contained herein or in a properly executed amendment hereto are valid or binding. Amendments to this contract must be signed by both parties. IN WITNESS OF THE TERMS SET OUT ABOVE, the parties hereto have caused this Contract to be executed on the dates set out below. By: 8/28/2018 C dy Andrus Date Mayor, City of Bozeman ATTEST: oiyt 6ML 8/28/2018 Robin Crough, MPA, City Clerk Date By: Pam Cka�tiy—�f� 8/28/2018 Pam Haxby-Cote Date Director, Montana Department of Commerce Page 15 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA MONTANA DEPARTMENT OF COMMERCE BIG SKY ECONOMIC DEVELOPMENT TRUST FUND PROGRAM CONTRACT# MT-BSTF-1-19-07 This Contract is entered into by the City of Bozeman, P O Box 1230 Bozeman, Montana 59771-1230 (the "Contractor"), and the Montana Department of Commerce, Helena, Montana (the "Department"). The Contractor and the Department hereby agree to the following terms: Section 1. PURPOSE The purpose of this Contract is to provide funding for Big Sky Economic Development Trust Fund (BSTF) Program (the Program) Economic Development Job Creation Project activities approved by the Department which the Contractor has applied for project funds pursuant to Sections 90-1-201 et seq., Montana Code Annotated (MCA). Program funds have been awarded to assist the Contractor and XY Planning Network, LLC, 135 E Main Street, Bozeman, MT 59715-4761, (the "Assisted Business") with wage reimbursement and the creation of jobs in Montana. The Assisted Business has agreed to create 10 eligible net new jobs at the project site located in Bozeman, Montana, (the "Project Site") in the Contractor's jurisdictional area within the Contract time period. An eligible net new job is defined as one that is new to the company and has not been filled before July 19, 2018. Eligible new job criteria is a full-time job, meaning a predominantly year-round position requiring an average of 35 hours of work each week, and pays wages that meet or exceed $19.58 per hour, before the value of benefits is added. In addition, the Contractor and the Assisted Business have agreed to a total new investment at the Project Site, which is equal to or greater than $1 for every $1 of BSTF financial assistance received, within this Contract time period. Section 2. SCOPE OF WORK The Contractor hereby agrees to engage in Project activities as set forth in the Contractor's application, including any written modifications resulting from the review of the application by the Department for Project assistance, all of which, by this reference are made a part hereof. The major components of the Project include the wage reimbursement, and documentation that the matching requirement has been met and documentation of eligible job creation in Bozeman, Montana, and the administration of this Contract. Page 1 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E269B7EA Section 3. AUTHORITY This Contract is issued under authority of Title 90, Chapter 1, Part 2, Montana Code Annotated, and the Administrative Rules of Montana, Title 8, Chapter 99. Section 4. APPLICATION INCORPORATED BY REFERENCE The Contractor's application for Program assistance and all appendices thereto, including any written modifications resulting from the review of the application by the Department (collectively, the "Project"), is incorporated into this Contract by this reference and the representations made therein are binding on the Contractor. Section 5. ACCEPTANCE OF PROGRAM REQUIREMENTS (a) The Contractor shall comply with all applicable local, state, tribal, and federal laws, regulations, ordinances, and resolutions, and all administrative directives and procedures established by the Department, including all the provisions, guidelines and requirements set forth on the Program's website: http://bstf.mt.gov. (b) The Contractor expressly agrees to repay to the Department any funds advanced under this Contract that the Contractor, or its contractors, subcontractors, or sub recipient entities, or any public or private agent or agency to which it delegates authority to carry out portions of this Contract, expends in violation of the terms of this Contract, the statutes and regulations governing the Program, or any applicable local, state, tribal, or federal requirements. Section 6. EFFECTIVE DATE AND TIME OF PERFORMANCE (a) This Contract shall take effect on July 19, 2018 and will terminate upon completion of the final closeout by the Department, or by July 19, 2019, whichever comes first, unless otherwise terminated in accordance with the terms of this Contract. (b) All Program award monies must be expended by the Contractor within the timeline specified in the Contractor's application, which by reference is made a part of this Contract. The Contractor may modify the implementation schedule set forth in the Contractor's application only upon obtaining prior approval of the Department. (c) Each party, after termination of this Contract, remains subject to and obligated to comply with all legal and continuing contractual obligations arising in relation to its duties and responsibilities that may arise under the contract including, but not limited to, record retention, audits, and indemnification. d) The Department reserves the right to extend this Contract based on but not limited to the Contractor's performance of the contracted activities, the Contractor's compliance with program requirements and the availability of program funding. Page 2 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E269137EA Section 7. BUDGET (a) The total amount to be awarded to the Contractor under this Contract will not exceed $50,000.00 to be used as follows: • Up to $46,000.00 to assist the Assisted Business with wage reimbursement and; • Up to $4,000.00 for eligible administrative expenses. (b) The Project budget is set forth in the application, as submitted by the Contractor and approved by the Department, and as specifically incorporated by this reference. The Department must approve budget adjustments to the Project in advance. To obtain approval of a budget adjustment, the Contractor shall describe the rationale for a budget adjustment in writing to the Department. (c) Any Project expenses the Contractor fails to incur on or before July 19, 2019 will revert to the Big Sky Economic Development Trust Fund. Section 8. CONDITIONS ON METHOD OF REIMBURSEMENT (a) The total amount to be awarded to the Contractor under the Contract shall be up to $5,000.00 per eligible net new job created by the Assisted Business for documented costs with reimbursement not to exceed a total of $50,000.00 for the entire Contract. The Department will not reimburse the Contractor for any costs incurred prior to July 19, 2018, nor for any expenses not included in the approved budget or not clearly and accurately supported by the Contractor's records. (b) The Contractor and the Assisted Business shall satisfy the matching funds requirements consistent with the purposes expressed in the application during the period of the Contract and shall meet or exceed the 1:1 required match ratio. (c) Unless otherwise authorized by the Department,the Contractor may receive award funds periodically over the Contract period only upon documenting the expenditure of the required matching funds and the creation of the eligible net new jobs by the Assisted Business, and after incurring eligible expenses. (d) The Department will use funds appropriated for the Program to fund awards to those entities that have received a Notice of Award letter. The Contractor acknowledges that its access to Program funds is subject to their availability. Page 3 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA (e) The Department agrees that, if and when the funds described in paragraph (a) of this Section are available, the Department will authorize the Contractor to request payment from Program funding awarded for the Contractor's Project. In requesting reimbursement, the Contractor will follow the instructions supplied by the Department. (f) The Contractor shall satisfy the matching funds requirements consistent with the purposes expressed in the Contractor's application during the period of the Contract. (g) The Department will only release funds to reimburse eligible and documented costs. Funds can be requested by sending a Request for Payment, in the format prescribed by the Department, signed by duly authorized representatives of the Contractor. (h) As further set forth in Section 5 ACCEPTANCE OF PROGRAM REQUIREMENTS, and Section 24 TERMINATION OF CONTRACT, if the Contractor fails to or is unable to comply with any of the terms and conditions of this Contract, any costs incurred will be the Contractor's sole responsibility and the Contractor agrees to repay to the Department any funds advanced under the Contract. (i) The Project funds may not be used to cover any costs incurred by the Contractor prior to July 19, 2018,for any expenses not included in the Contractor's application or an approved adjustment thereto, or for any expenses not clearly and adequately supported by the Contractor's records. Q) Once the Department has determined a Request for Payment to be complete, the Department is allowed thirty (30) working days to process a Request for Payment. The Contractor shall provide signatory and banking information at the time of Contract execution in order to facilitate electronic funds transfer payments. The Department may withhold payments to the Contractor if the Contractor has breached the terms of this Contract. (k) If actual Project expenses are less than projected in the budget, the Department, at its discretion, may reduce the amount of BSTF funds to be provided to the Contractor accordingly. (1) If the Department determines that the Contractor has failed to satisfactorily carry out its responsibilities under this Contract, the Department may withhold payment to the Contractor until such time as the parties agree on a plan to remedy the deficiency. (m) The Department reserves the right to withdraw a commitment of any Program funds for projects not ready to proceed within three (3) months after the date of tentative award. Page 4 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-487C-A888-9441 E269137EA (n) If the Assisted Business creates an eligible new job but fails to sustain that job for the requisite duration, then the Contractor shall reimburse the Department all funds received for that job. If the Assisted Business fails to create the required number of jobs, then the Contractor shall reimburse the Department the difference between the total amount advanced and the amount attributable to actual jobs created. If the Assisted Business ceases operation at the Project Site, then the Contractor shall reimburse the Department all funds received under this Contract. (o) At the request of the Department, Requests for Payment for contracted or subcontracted services must attach appropriate documentation demonstrating compliance with contract requirements. (p) The Contractor may not use monies provided through this Contract as payment for Project costs that are reimbursed from other sources. (q) The Department will withhold ten percent(10%)of the total amount awarded to the Contractor until the Department approves the complete the job creation and all tasks outlined in Section 2 SCOPE OF WORK are completed by the Contractor and approved by the Department. Section 9. REPORTING REQUIREMENTS (a) Quarterly Project Progress Reports. Unless otherwise specified by the Department, the Contractor will also submit Project Progress Reports quarterly to the Department until the Contractor receives Contract closeout approval from the Department. The Project Progress Report must be provided on or before April 30th to cover the January 1-March 31 reporting period, July 31st to cover the April 1-June 30 reporting period, October 31st to cover the July 1-September 30 reporting period, and January 31 st to cover the October 1-December 31 reporting period,for each year of the Contract period and at closeout of the Contract. These reports will describe the status of the activities set forth in Section 2 SCOPE OF WORK, including, at a minimum: • Certified employment documentation from the Assisted Business that includes the breakdown of jobs created, using the Job Status Spreadsheet and accompanying Job Certification Form; Written Progress Report that should include the following items: o detailing progress towards achieving the hiring objectives and project goals that were described in the application; o projected completion date; o any difficulties encountered in working towards these goals; o any changes within the assisted business structure, business name or changes to its registration with the Montana Secretary of State's office; o any other pertinent information Page 5 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E269137EA (b) The employment level of XY Planning Network, LLC, one day prior to the contract effective date of July 19, 2018 is 16 permanent, full-time employees onsite, per the certified baseline job report. (c) The report must also describe any significant problems encountered in carrying out the Project and the scope of any necessary modifications the Contractor is requesting in the SCOPE OF WORK, BUDGET, or Project implementation schedule. The State, at its discretion, may decline to honor the final ten percent (10%) Request for Payment if any required project progress reports have not been submitted. (d) Request for Payment with Report. Request for Payment with reports must include all items listed in Section 9(a), plus the following: • The Request for Payment Form signed by two authorized representatives, • Project Progress Report detailing progress towards achieving the hiring objectives and project goals that were described in the application as well as describing any difficulties encountered in working towards these goals, • Approved documentation verifying eligible costs were incurred, • Documentation of matching funds expended to date. (e) Project Closeout. Upon completion of the final Project, the Contractor will submit a signed final Project Completion Report. The Project Completion report should include all items in Section 9(a) and (c), with a request for payment for the final 10% of the award. • Once the Department accepts the final Project Completion Report and the final payment is processed, the Contractor will complete a Closeout Certification Form. • Once the Department approves the Closeout Certification Form from the Contractor, the Department will officially closeout the project and send a letter of closeout to the Contractor. The Department may request additional documentation, when in the exercise of its judgment such documentation is needed to confirm performance. To assist the Department with program performance reporting, the BSTF award recipient may be required to provide annual project updates for 3 years after the close of the contract. Page 6 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:Al35685BA-77F3-4B7C-A888-9441 E26967EA Section 10. LIAISONS The contact persons for this Contract are: For the Department: Annmarie Robinson (or successor) Section Manager, Big Sky Economic Development Trust Fund Program, MDOC P.O. Box 200505 Helena, MT 59620-0505 406-841-2250 For the Contractor: Cyndy Andrus (or successor) Mayor, City of Bozeman P O Box 1230 Bozeman, MT 59771-1230 406-579-1302 Section 11. PROJECT MEETINGS (a) Progress Meetings. During the term of the Contract, the Department may plan and schedule progress meetings with the Contractor to discuss the progress made by the Contractor and the Department in the performance of their respective obligations. These progress meetings may include the parties' liaisons and any other additional personnel involved in the performance of the contract as required. At each such meeting, the Contractor may be requested to provide the Department with a written status report that identifies any problem or circumstance encountered by the Contractor, or of which the Contractor gained knowledge during the period since the last such status report, which may prevent the Contractor from completing any of its obligations or may generate charges in excess of those previously agreed to by the parties. Contractor may be requested to identify the amount of excess charges, if any, and the cause of any identified problem or circumstance and the steps taken to remedy the same. (b) Technical or Contractual Problems. The Contractor is required to meet with the Department's liaison to resolve technical or contractual problems that may occur during the term of the Contract, at no additional cost to the Department. Meetings will occur as problems arise and will be coordinated by the Department. Failure to participate in problem resolution meetings or failure to make a good faith effort to resolve problems may result in termination of the Contract. Section 12. ACCESS TO AND RETENTION OF RECORDS The Contractor shall create and maintain records of the services covered by this Contract, including but not limited to financial records, supporting documents, and such other records as are required by law or other authority, and to provide the Department, Montana Legislative Auditor, or their authorized agent's access to any records necessary to Page 7 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA determine contract compliance. (Mont. Code Ann. § 18-1-118.) The Contractor agrees to create and retain records supporting the services rendered or supplies delivered for a period of three (3)years after either the completion date of the Contract or the conclusion of any claim, litigation, or exception relating to the Contract taken by the State of Montana or third party, whichever is later. These records will be kept in the Contractor's offices in Bozeman, Montana. Section 13. PROJECT MONITORING (a) The Department or any of its authorized agents may monitor and inspect all phases and aspects of the Contractor's performance to determine compliance with the SCOPE OF WORK, the proper use of Program funds, and other technical and administrative requirements of this Contract, including the adequacy of the Contractor's records and accounts. The Department will advise the Contractor of any specific areas of concern and provide the Contractor opportunity to propose corrective actions acceptable to the Department. (b) Failure by the Contractor to proceed with reasonable promptness to take necessary corrective actions shall be a default. If the Contractor's corrective actions remain unacceptable, the Department may terminate this Contract in whole or in part, or reduce the contract price or award to reflect the reduced value of services received. Section 14. COMPLIANCE WITH APPLICABLE LAWS The Contractor must, in performance of work under the Contract, fully comply with all applicable federal, state, or local laws, rules and regulations, including Executive Order No. 12-2015 Amending and Providing For Implementation of the Montana Sage Grouse Conservation Strategy , the Montana Human Rights Act, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act ("Affordable Care Act"). Any subletting or subcontracting by the Contractor subjects subcontractors to the same provisions. In accordance with Mont. Code Ann. § 49-3-207, Executive Order No. 04-2016, the Grantee agrees that the hiring of persons to perform the Contract will be made on the basis of merit and qualifications and there will be no discrimination based upon race, color, sex, pregnancy, childbirth or medical conditions related to childbirth, political or religious affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual orientation, gender identity or expression, national origin, ancestry, age, disability, military service or veteran status, or marital status. The Affordable Care Act requires a Contractor, if Contractor is an applicable large employer under the ACA, to provide healthcare coverage for its employees, who provide services for the State and work for 30 or more hours per week. This coverage must also cover the eligible employee's dependents under the age of 26. The coverage must (a) meet the minimum essential coverage, minimum value, and affordability requirements of the employer responsibility provisions under Section 4980H Page 8 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E269137EA of the Code (ACA), and (b) otherwise satisfy the requirements of the Code § 4980 H (ACA) if provided by the State. Section 15. AVOIDANCE OF CONFLICT OF INTEREST The Contractor will comply with all applicable laws regarding the avoidance of conflict of interest. In addition, the Contractor agrees that none of its officers, employees, or agents will solicit or accept gratuities, favors, or anything of monetary value from contractors, subcontractors, or potential contractors and subcontractors, who provide or propose to provide services relating to the project funded under this Contract. Section 16. ACCOUNTING, COST PRINCIPLES, AND AUDITING (a) The Contractor, in accordance with Section 18-4-311, MCA; 5 U.S.C. App. 3 §§ 1 et seq.; OMB Circular A-133; and other authorities, must maintain for the purposes of this Contract an accounting system of procedures and practices that conforms to Generally Accepted Accounting Principles (GAAP). (b) The Department, Montana Legislative Auditor, Inspector General of the U.S. Department of Commerce, or any other legally authorized governmental entity or their authorized agents may, at any time during or after the term of this Contract, conduct, in accordance with Sections 5-13-204 and 18-1-118, MCA; 5 U.S.C. App. 3 §§ 1 et seq.; OMB Circular A-133; and other authorities, audits for the purposes of ensuring the appropriate administration and expenditure of the monies provided through this Contract and to ensure the appropriate administration and delivery of services provided through this Contract. (c) The Contractor, for purposes of audit and other administrative activities, in accordance with 18-1-118, MCA; 5 U.S.C. App. 3 §§ 1 et seq.; OMB Circular A- 133; and other authorities, must provide the Department, Montana Legislative Auditor, Inspector General of the U.S. Department of Commerce, or any other legally authorized governmental entity or their authorized agents access at any time to all of their respective records, materials and information, including any and all audit reports with supporting materials and work documents, pertinent to the services provided under this Contract until the expiration of three (3) years from the completion date of this Contract. The Department and any other legally authorized governmental entity or their authorized agents may record any information and make copies of any materials necessary for the conduct of an audit or other necessary administrative activity. Section 17. OWNERSHIP AND PUBLICATION OF MATERIALS All reports, information, data, and other materials prepared by the Contractor, or any of its contractors or subcontractors, in furtherance of this Contract are the property of the Contractor and the Department, which both have the royalty-free, nonexclusive, and Page 9 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, in whole or part, such property and any information relating thereto. No material produced in whole or part under this Contract may be copyrighted or patented in the United States or in any other country without the prior written approval of the Department and the Contractor. Section 18. ASSIGNMENT, TRANSFER, AND SUBCONTRACTING (a) The Contractor may not assign, transfer, delegate, or subcontract, in whole or part, this Contract or any right or duty arising under this Contract, unless the Department in writing approves the assignment, transfer, delegation, or subcontract. (b) Any assignment, transfer, delegation, or subcontract entered into by the Contractor must be in writing, must be subject to the terms and conditions of this Contract, and must contain any further conditions as may be required by the Department. (c) The Department's approval of any assignment, transfer, delegation, or subcontract neither makes the Department a party to that contract nor creates any right, claim, or interest in favor of any party to that contract against the Department. (d) The Contractor must immediately notify the Department of any litigation concerning any assignment, transfer, delegation, or subcontract. Section 19. HOLD HARMLESS AND INDEMNIFICATION The Contractor agrees to protect, defend, and save the Department, its elected and appointed officials, agents, and employees, while acting within the scope of their duties as such, harmless from and against all claims, demands, causes of action of any kind or character, including the cost of defense thereof, to the extent arising in favor of the Contractor's employees or third parties on account of bodily or personal injuries, death, or damage to property arising out of Contractor's negligence in connection with services performed or omissions of services or in any way resulting from the negligent acts or omissions of the Contractor and/or its agents, employees, representatives, assigns, contractors, subcontractors, except the sole negligence of the Department under this agreement. Section 20. INSURANCE (a) General Requirements. Contractor shall maintain and shall assure that its representatives, assigns, and subcontractors maintain for the duration of the Contract, at their own cost and expense, liability insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the duties and obligations in the Contract by Contractor, its agents, employees, representatives, assigns, or subcontractors. This insurance shall cover such claims as may be caused by any negligent act or omission. The Department, its officers, officials, and employees are to be covered as additional Page 10 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA insured's for all claims arising out of the use of award proceeds provided by the State of Montana. (b) General Liability Insurance. At its sole cost and expense, the Contractor shall purchase occurrence coverage with minimum combined single limits of$1 million per occurrence and $2 million aggregate per year, or as established by statutory Tort limits of$750,000 per claim and $1,500,000 per occurrence as provided by a self-insurance pool insuring counties, cities, or towns, as authorized under Section 2-9-211, MCA. (c) Professional Liability Insurance. Contractor shall assure that any representatives, assigns, and subcontractors performing professional services under this Contract purchase occurrence coverage with combined single limits for each wrongful act of $1,000,000 per occurrence and $2,000,000 aggregate per year. Note: if "occurrence" coverage is unavailable or cost prohibitive, the Contractor may provide "claims made" coverage provided the following conditions are met: (1) the commencement date of the contract must not fall outside the effective date of insurance coverage and it will be the retroactive date for insurance coverage in future years; and (2) the claims made policy must have a three (3) year tail for claims that are made (filed) after the cancellation or expiration date of the policy. (d) Property Insurance. At its sole cost and expense, the Contractor shall maintain property and hazard insurance, including course of construction coverage, and earthquake insurance in areas where there is a shaking level above 10g (see map at http://www.rmtd.mt.gov/content/aboutus/publications/files/NEHRP.pdf) for loss or damage for any building and all related improvements and contents therein on the premises on a replacement cost basis throughout the term of the contract. (e) General Provisions. All insurance coverage shall be placed with a carrier licensed to do business in the State of Montana or by a domiciliary state and with a Best's rating of at least A-, or by a public entity self-insured program either individually or on a pool basis as provided by Title 2, MCA. All certificates and endorsements are to be received by the Department prior to beginning any activity provided for under the Contract. Contractor shall notify the Department immediately of any material change in insurance coverage, such as changes in limits, coverage, change in status of policy, etc. The Department reserves the right to request complete copies of Contractor's insurance policy including endorsements at any time. Section 21. INDEPENDENT CONTRACTOR The Contractor and its employees or agents performing under this Contract are not employees or agents of the Department. The Contractor will not claim to be an officer or employee of the Department by reason of this Contract, nor will it make any claim of right, privilege or benefit which would accrue to a civil service employee of the State of Montana. Page 11 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA Section 22. DEBARMENT The Contractor certifies and agrees to ensure during the term of this Contract that neither it nor its principals, contractors, or subcontractors are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this Contract by any governmental department or agency. If the Contractor cannot certify this statement, it has attached a written explanation for review by the Department. Section 23. CONTRACT AMENDMENT Except as otherwise set forth herein, this Contract may not be enlarged, modified, or altered except upon written agreement by all parties to the Contract. Section 24. TERMINATION OF CONTRACT This Contract may only be terminated in whole or in part as follows: (a) Termination Due to Loss or Reduction of Funding. The Department, at its sole discretion, may terminate or reduce the scope of this Contract if available funding sources are eliminated or reduced for any reason. If a termination or modification is so required, the Department may, if sufficient program funds are available, compensate the Contractor for eligible services rendered and actual, necessary, and eligible expenses incurred as of the revised termination date. The Department will notify the Contractor of the effective date of the termination or modification of this Contract and, if a reduction in funding is required, will provide the Contractor with a modified Project budget. (b) Termination for Cause with Notice to Cure Requirement. The Department may terminate this Contract for failure of the Contractor, its contractors, or subcontractors to perform or comply with any of the services, duties, terms or conditions contained in this Contract after giving the Contractor written notice of the stated failure. The written notice will demand performance of the stated failure within a specified period of time of not less than thirty (30) days. If the demanded performance is not completed within the specified period, the termination is effective at the end of the specified period. (c) Effect of Termination. In the event of termination due to the Contractor's, its contractors', or subcontractors' failure to perform or comply with any of the services, duties, terms, or conditions of this Contract, the Contractor shall return all funds received under this Contract. Any costs incurred will be the responsibility of the Contractor. However, at its sole discretion, the Department may approve requests by the Contractor for reimbursement of expenses incurred. The Department's decision to authorize payment of any costs incurred or to recover expended Program funds will be based on a consideration of the Page 12 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441 E269137EA extent to which the expenditure of those funds represented a good faith effort of the Contractor to comply with the any of those services, duties, terms, or conditions of this Contract, and on whether the failure to comply with any of those services, duties, terms, or conditions resulted from circumstances beyond the Contractor's control. Section 25. DEFAULT Failure on the part of either party to perform the provisions of the Contract constitutes default. Default may result in the pursuit of remedies for breach of contract as set forth herein or as otherwise legally available, including but not limited to damages and specific performance. Section 26. NO WAIVER OF BREACH No failure by the Department to enforce any provisions hereof after any event of breach shall be deemed a waiver of its rights with regard to that event, or any subsequent event. No express failure of any event of breach shall be deemed a waiver of any provision hereof. No such failure or waiver shall be deemed a waiver of the right of the Department to enforce each and all of the provisions hereof upon any further or other breach on the part of the Contractor. Section 27. COMPLIANCE WITH WORKERS' COMPENSATION ACT The Contractor accepts responsibility for supplying, and requiring all subcontractors to supply, the Department with proof of compliance with the Montana Workers' Compensation Act while performing work for the State of Montana. (Mont. Code Ann. §§ 39-71-401, 39-71-405, and 39-71-417.) Neither the Contractor nor its employees are employees of the State. The proof of insurance/exemption must be in the form of workers' compensation insurance, an independent contractor exemption, or documentation of corporate officer status and must be received by the Department within 10 working days of the execution of this Contract, and must be kept current for the entire term of the contract. CONTRACTS WILL BE TERMINATED PURSUANT TO THE PROVISIONS OF SECTION 24 TERMINATION OF CONTRACT IF THE CONTRACTOR FAILS TO PROVIDE THE REQUIRED DOCUMENTATION WITHIN THE ALLOTTED TIME FRAME. Coverage may be provided through a private carrier or through the State Compensation Insurance Fund (406) 444-6500. An exemption can be requested through the Department of Labor and Industry, Employment Relations Division (406) 444-1446. Corporate officers must provide documentation of their exempt status. Page 13 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA Section 28. FORCE MAJEURE Neither party shall be responsible for failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, terrorist acts, or any other causes, directly or indirectly beyond the reasonable control of the non-performing party, so long as such party is using its best efforts to remedy such failure or delays. Section 29. SEPARABILITY A declaration by any court, or any other binding legal forum, that any provision of the Contract is illegal and void shall not affect the legality and enforceability of any other provision of the Contract, unless the provisions are mutually dependent. Section 30. NOTICE All notices required under the provisions of the Contract must be in writing and delivered to the parties' liaisons identified herein either by first class mail or personal service. Section 31. NO ARBITRATION Unless otherwise agreed to in writing or provided for by law, arbitration is not available to the parties as a method of resolving disputes that would arise under the Contract. Section 32. REFERENCE TO CONTRACT The Contract number must appear on all invoices, reports, and correspondence pertaining to the Contract. Section 33. JURISDICTION AND VENUE This Contract is governed by the laws of Montana. The parties agree that any litigation concerning this Contract must be brought in the First Judicial District in and for the County of Lewis and Clark, State of Montana, and each party shall pay its own costs and attorney fees. (Section 18-1-401, MCA). Section 34. FUNDING ACKNOWLEDGEMENT All materials developed wholly or in part by the funding provided under the Contract shall state that "The funding for the (insert name of project) was funded (in part, if applicable) by an award from the Montana Department of Commerce." Any variations from this language must be approved by the Department prior to use. The Department of Commerce logo is also available for use upon request. Page 14 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA Section 35. INTEGRATION This contract contains the entire agreement between the parties, and no statements, promises, or inducements of any kind made by either party, or the agents of either party, not contained herein or in a properly executed amendment hereto are valid or binding. Amendments to this contract must be signed by both parties. IN WITNE& G—FT TERMS SET OUT ABOVE, the parties hereto have caused this Contraet'6 be e u ed on thre dates set out below. By: ynd And Date Mayor, Ci o�� man AfiTEST BO Z ' Robin Crough, MPA, Ci Ie-rk- Date 77 83 �� Y By. Pam Haxby-Cote Date Director, Montana Department of Commerce Page 15 of 15 Big Sky Economic Development Trust Fund Program Contract#MT-BSTF-1-19-07 Montana Department of Commerce Updated 10-16-15 City of Bozeman DocuSign Envelope ID:AB5685BA-77F3-4B7C-A888-9441E269B7EA Contract Information Sheet Division staff are required to complete the items in blue print. City of Bozeman - XY Planning Network, LLC Contract Number: MT-BSTF-1-19-07 Division: MOTBD Contractor's Name: City of Bozeman Contractor(Signee) Name: Cyndy Andrus Contractor's Email: candrusftozeman.net Contractor's Address: P O Box 1230 Vendor Number: 23437 Contractor's Address 2: Bozeman, MT 59771-1230 Contractor Liaison: Robin Crough Contractor's Liaison Email: rcrouoh@bozeman.net Contractor Liaison: Brit Fontenot Contractor's Liaison Email: bfontenot(@bozeman.net Contractor Liaison: David Atherton Contractor's Liaison Email: datherton@prosperabusinessnetwork.org Duns Number: Begin Date: July 19, 2018 (Federal Funds Required) Amount: $50,000.00 Organization Number: 535301 End Date: July 19, 2019 RFP Number(if applicable): Program Number: 51 Liaison: Debi Davidson Program Manager: Annmarie Robinson Liaison Email: ddavidson2Ca mt.00v Bureau Chief: Liaison Phone: 406-841-2792 Additional Email: arobinsona@mt.gov Signatures: Carbon Copies: Division Adminstrator 8/21/2018 Liaison: ❑ Fiscal Review iLn� u � 8/21/2018 Director(> $200K): ❑ Legal Counsel aAynft nr(b{f 8/22/2018 Deputy Director(<$25K): [� Filenet Secretary of State: ❑ BIA: ❑ Clerk of Court: ❑ Docu�w. r SEt uR a Certificate Of Completion Envelope Id:AB5685BA77F34B7CA8889441 E269137EA Status:Sent Subject:Montana Department of Commerce Contract#MT-BSTF-1-19-07 for Signature Source Envelope: Document Pages: 16 Signatures:3 Envelope Originator: Certificate Pages:6 Initials:0 Contracts Admin AutoNav:Enabled PO Box 200501 Envelopeld Stamping:Enabled 301 S.Park Ave Time Zone:(UTC-07:00)Mountain Time(US&Canada) Helena,MT 596200501 doccontracts@mt.gov IP Address: 161.7.59.22 Record Tracking Status:Original Holder:Contracts Admin Location:DocuSign 8/21/2018 7:32:32 AM doccontracts@mt.gov Signer Events Signature Timestamp Sean Becker Sent:8/21/2018 7:42:40 AM SeanBecker@mt.gov �.�.—• Viewed:8/21/2018 7:48:43 AM Security Level:Email,Account Authentication Signed:8/21/2018 7:48:55 AM (None) Signature Adoption:Uploaded Signature Image Using IP Address:69.145.134.49 Signed using mobile Electronic Record and Signature Disclosure: Accepted: 11/10/2014 1:58:12 PM ID:96bc708d-Odd1-4f36-a293-03d373f804d6 Teri Juneau --_w-',' Sent:8/21/2018 7:48:57 AM tjuneau@mt.gov � `nt" too - Viewed:8/21/2018 8:20:42 AM Fiscal Manager Signed:8/21/2018 8:20:47 AM MT Dept of Commerce Signature Adoption:Drawn on Device Security Level:Email,Account Authentication (None) Using IP Address:161.7.59.18 Electronic Record and Signature Disclosure: Not Offered via DocuSign Garrett Norcott Sent:8/21/2018 8:20:48 AM gnorcott@mt.gov aArytft nyt& Viewed:8/22/2018 8:43:13 AM Security Level:Email,Account Authentication Signed:8/22/2018 8:43:21 AM (None) Signature Adoption:Pre-selected Style Using IF Address:161.7.59.19 Electronic Record and Signature Disclosure: Accepted:8/22/2018 8:43:13 AM ID:72539efb-345c-4154-95c2-605d101b157a Cyndy Andrus Sent:8/22/2018 8:43:23 AM candrus@bozeman.net Resent:8/22/2018 10:17:03 AM Security Level:Email,Account Authentication Viewed:8/27/2018 2:44:18 PM (None) Electronic Record and Signature Disclosure: Accepted:8/27/2018 9:11:20 AM ID:f0e67b84-c22c-43dd-aab3-cf3d5ee7311f Signer Events Signature Timestamp Robin Crough rcrough@bozeman.net Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Pam Haxby-Cote pam.haxbycote@mt.gov Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Accepted:8/27/2018 11:06:59 AM ID:blde0al2-2c58-4d8e-bleb-afc723e6d02d In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Annmarie Robinson COPIED Sent:8/21/2018 7:42:40 AM arobinson3@mt.gov Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Debi Davidson 4�PI E Sent:8/21/2018 7:42:39 AM ddavidson2@mt.gov Viewed:8/27/2018 8:36:58 AM Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Brit Fontenot COPIED Sent:8/27/2018 8:54:34 AM bfontenot@bozeman.net Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Accepted:6/16/2015 8:35:10 AM ID:79fd0248-a bf5-4575-a049-509ecf212 ba 1 David Atherton datherton@prosperabusinessnetwork.org Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Marty Tuttle matuttle@mt.gov Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Carbon Copy Events Status Timestamp Cyndi Davis CDavis3@mt.gov Security Level:Email,Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 8/27/2018 8:54:34 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 10/7/2014 8:41:47 AM Parties agreed to:Sean Becker,Garrett Norcott,Cyndy Andrus,Pam Haxby-Cote,Brit Fontenot ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time,MT Dept of Commerce(we, us or Company)may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign, Inc. (DocuSign) electronic signing system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions,please confirm your agreement by clicking the `I agree' button at the bottom of this document. Getting paper copies At any time,you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after signing session and,if you elect to create a DocuSign signer account, you may access them for a limited period of time (usually 30 days) after such documents are first sent to you. 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Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format,it will slow the speed at which we can complete certain steps in transactions with you and delivering sei vices to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind,you must withdraw your consent using the DocuSign `Withdraw Consent' form on the signing page of a DocuSign envelope instead of signing it. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein,we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system.If you do not agree with this process,please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact MT Dept of Commerce: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: doccontracts@mt.gov To advise MT Dept of Commerce of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at doccontracts@mt.gov and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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By checking the `I agree' box,I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify MT Dept of Commerce as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by MT Dept of Commerce during the course of my relationship with you.