HomeMy WebLinkAbout10-28-19 City Commission Packet Materials - C3. Amendments with MDC for BSTF Grant No. MT-BSTF-1-19-07A for XY Planning Network
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Director of Economic Development
SUBJECT: Authorize Mayor Andrus, and Designated Staff, to sign Montana
Department of Commerce, Big Sky Trust Fund (BSTF) Program Contract
Amendments to the Montana Department of Commerce Contract # MT-
BSTF-1-19-07A, Amendment A to the Business Assistance Agreement and
Amendment A to Management Plan to the XY Planning Network’s BSTF
Contract Documents.
MEETING DATE: October 28, 2019
AGENDA ITEM TYPE: Consent
RECOMMENDATION:
Authorize Mayor Andrus and Designated Staff to sign Montana Department of
Commerce, Big Sky Trust Fund (BSTF) Program Contract Amendments to the Montana
Department of Commerce Contract # MT-BSTF-1-19-07A, Amendment A to the Business
Assistance Agreement and Amendment A to Management Plan to the XY Planning
Network’s BSTF Contract Documents.
BACKGROUND:
On August 20, 2019 the Bozeman City Commission authorized Mayor Andrus to
sign the three contracts associated with a Big Sky Trust Fund grant award, 1) Montana
Department of Commerce Contract # MT-BSTF-1-19-07, 2) the Business Assistance
Agreement and 3) the Management Plan. (Exhibit 1)
XY Planning Network has grown at a faster pace than originally anticipated. As a
result of the rapid expansion of their employee base in Bozeman, XY Planning Network
is requesting to amend the contracts approved in August; 1) Department of Commerce
#MT-BSTF-1-19-07A, 2) Business Assistance Agreement and 3) Management Plan) to
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reflect the need to hire more employees and provide more time to recruit employees.
(Exhibit 2) The nature of the amendment are summarized below:
Department of Commerce #MT-BSTF-1-19-07A contract amendments include; 1)
increasing the total award amount from $50,000 to $90,000, 2) increasing the number
of eligible net new jobs from 10 to 18 and adding one additional year (July 19, 2020) to
the contract to complete the hiring.
Business Assistance Agreement amendments include; 1) increasing the total
award amount from $50,000 to $90,000, 2) increasing the number of eligible net new
jobs from 10 to 18 and adding one additional year (July 19, 2020) to the contract to
complete the hiring.
Management Plan amendments include; 1) adding a Prospera employee, Alexa
Freeburg, to the administrative structure of the grant and 2) increasing the total award
amount from $50,000 to $90,000.
UNRESOLVED ISSUES: None
ALTERNATIVES: As proposed by the City Commission
FISCAL EFFECTS: The proposed contract amendments do not impact the fiscal effects.
EXHIBITS:
1) August 20, 2019 City Commission Packet Material; and
2) Montana Department of Commerce #MT-BSTF-1-19-07A, A Business Assistance
Agreement Amendment A and Exhibit A Management Plan Amendment A.
Report compiled on: 10-17-19
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Commission Memorandum REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Director of Economic Development
SUBJECT: Montana Department of Commerce, Big Sky Economic Development
Trust Fund Program Grant Award to XY Planning Network (Contract # MT-
BSTF - 1-19-07)
MEETING DATE: August 20, 2018
AGENDA ITEM TYPE: Consent
RECOMMENDATION:
Authorize Mayor Andrus to sign the Montana Department of Commerce Big Sky
Economic Development Trust Fund program contract and authorize the City Manager,
or their designee, to execute additional documents required to facilitate and manage
the grant award to XY Planning Network.
BACKGROUND:
On January 29, 2019 the City Commission approved Resolution 4875 authorizing
the submittal and administration of the Big Sky Economic Development Trust Fund
(“BSTF”) grant application by the Prospera Business Network (“Prospera”) on behalf of
XY Planning Network. (Exhibit 1)
On July 20, 2018 the Office of the Governor notified the City of Bozeman that the
City’s application, facilitated by Prospera, was approved and XY Planning Network was
awarded up to $50,000 in BSTF Category I, Job Creation funding by the Montana
Department of Commerce (DoC), Big Sky Economic Development Trust Fund Program
(Contract # MT-BSTF - 1-19-07). (Exhibit 2) XY Planning Network agrees to create up to
10 net new full time jobs in the next year that meet or exceed the BSTF wage rate of
$19.58 per hour, not including employee benefits.
As part of the administration of the BSTF grant, the DoC and Prospera require
the sponsoring entity, the City of Bozeman (the “City”), to enter into several agreements
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with the DoC, Prospera and the XY Planning Network, including the attached contract
document. (Exhibit 3)
During the term of the contract, XY Planning Network endeavors to create up to
10 eligible net new jobs in their existing Bozeman facility. The total amount to be
reimbursed to the assisted business under the Contract shall be up to $5,000 per eligible
net new job created by the assisted business for documented costs with reimbursement
not to exceed a total of $50,000, minus grant administration dollars for the entire
Contract.
A net new job must pay the average weekly wage that meets or exceeds the
lesser of 170% of Montana's current minimum wage *AND/OR* the current average
weekly wage of the county in which the employees are to be principally employed. The
value of employee benefits can be included in this wage. The current average annual,
weekly and hourly wage thresholds may be obtained through the BSTF program web
site at www.bstf.mt.gov or may be requested from the Department. These figures are
based upon the average weekly wage data produced by the Montana Department of
Labor and Industry for the most current year available.
An eligible net new job is defined as the following:
1. A new job to the company was created or filled on or after July 19, 2019;
2. Have at a minimum, a full-time job, meaning a predominantly year-round
position requiring an average of 35 hours of work each week; and
3. The job pays wages that meet or exceed $19.58 per hour, not including
employee benefits.
THE PROSPERA BUSINESS NETWORK:
The City and Prospera work collaboratively on numerous economic development
projects including past BSTF grants. As they have in the past, Prospera will provide grant
administration, contract management and reporting under the BSTF requirements.
Additionally, Prospera currently manages the City’s Revolving Loan Fund.
Once the grant is funded, Prospera will administer the BSTF grant, contracts and
satisfy reporting elements of the BSTF award. Through the Economic Development
Department, the City will maintain oversight of the Prospera management of the BSTF
grant award as the recipient entity for the grant funds, as required by the DoC.
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GRANT AGREEMENTS:
The following agreement must be entered into by the City to complete the grant
and provide the award to XY Planning Network:
Montana Department of Commerce Big Sky Economic Development Trust Fund
Program Document, referred to as the Contract (# MT-BSTF - 1-19-07), provides the
Category 1 funding to the City.
There are additional documents wherein the DoC will require City approval.
Authorization of this Consent item also authorizes the City Manager, or their designee,
to execute all additional documents to facilitate the grant award including:
1. The Sub-recipient Agreement with Prospera authorizes Prospera to
manage the grant program on behalf of the City);
2. The Management Plan identifies the grant management requirements of
the City, Prospera, and XY Planning Network);
3. The Business Assistance Agreement between the City and XY Planning
Network details the conditions XY Planning Network must adhere to in
order to obtain the grant funds including the number of jobs, the salaries
for the jobs, the use of the funds, reporting, and other issues;
4. The Signature Certification Form authorizes signatories for the release of
funds; and
5. The Budget Amendment Form reconciles the incoming grant funds with
the City’s overall budget.
UNRESOLVED ISSUES: None
ALTERNATIVES: As proposed by the City Commission
FISCAL EFFECTS: As part of the contract, Prospera will earn administrative fees based
upon the number of net new jobs XY Planning Network creates over the next year.
Additionally, minimal City staff time is required to provide the appropriate review of
documents and approvals.
Please note that the Big Sky Trust Fund support provided by the City of Bozeman,
in longstanding partnership with Prospera, is not without financial risk, although the City
and Prospera work closely together with the assisted business to minimize the risk. If
the number of jobs identified in the contract is not filled by the assisted business, but
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grant dollars are received by the assisted business, the contract between the assisted
business and the City of Bozeman contains the following financial restoration sections:
Section 8 Conditions on Method of Reimbursement:
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.
AND
Section 3 Compensation and Consideration:
c. The Assisted Business agrees that if the local government or
tribal government request the funds before the jobs are
created, and the Department agrees to that request, the local
or tribal government and the assisted business receiving BSTF
financial assistance are liable for the full amount of the award
that is advanced by the Department, if the assisted business:
1. Fails to create or maintain the number of net
new eligible jobs as specified in the executed
contract and assistance agreement, or
2. Fails to inject the required amount of match into
the project as specified in the executed contract
and assistance agreement.
Additionally the Department may recapture funds if:
a. At the end of the contract period the Department has
overpaid based on the number of net new jobs at the end of
the contract period.
b. The business ceases operations at the Project Site within the
contract period.
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While important to be aware of the contractual relationships and obligations, it
is also important to note that, to date, neither the City nor the Department of
Commerce has exercised theses sections on an assisted business in Bozeman. In
partnership with the Montana Department of Commerce and Prospera, the City has
supported numerous BSTF assisted businesses.
EXHIBITS:
1) January 29, 2018 packet material (Resolution 4875);
2) Governor’s Office Letter of Award dated July 20, 2018;
3) Montana Department of Commerce, Big Sky Economic Development Trust Fund
Program Contract # MT-BSTF-1-19-07; and
4) Signed budget amendment.
Report compiled on: 08-06-18
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Director of Economic Development
SUBJECT: Resolution 4875 Supporting the Application to the Big Sky Economic
Development Trust Fund Program, Administered by the Montana
Department of Commerce, on behalf of XY Planning Network.
MEETING DATE: January 29, 2018
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Adopt Resolution 4875 authorizing the City’s application for a Big Sky Trust
Fund Category I job creation grant on behalf of XY Planning Network and
administered by The Prospera Business Network.
BACKGROUND: The Montana Department of Commerce administers the Big Sky Economic
Development Trust Fund Category I job creation program. This State-funded program is intended to
incentivize the creation of net new higher paying jobs; also a Bozeman City Commission priority. The
local governing body is required to apply for the grant on behalf of the business recipient as a co-
applicant with the local Certified Regional Development Corporation (CRDC). The Prospera Business
Network is local CRDC which includes Gallatin County. Should the grant be awarded, staff recommends
that the City Commission appoint The Prospera Business Network, our local CRDC, to administer all
aspects of the grant on behalf of the City of Bozeman.
The XY Planning Network is a leading organization of fee-only financial advisors who are focused
on working with Generation X and Generation Y clients. Their mission is to connect consumers with best-
in-class financial advisors who specialize in working with that client demographic. The company was co-
founded by Michael Kitces and Alan Moore.
XY Planning Network in the media:
https://www.xyplanningnetwork.com/consumer/in-the-media/
XY Planning Network introduction video:
http://info.xyplanningnetwork.com/intro_video
UNRESOLVED ISSUES: None
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ALTERNATIVES: As proposed by the City Commission
FISCAL EFFECTS: If the application is successful, XY Planning Network may be awarded up to $5,000
per net new job with a target of thirty (30) net new jobs over the next twenty-four (24) months for a
total grant award, if all thirty (30) proposed new jobs are filled, of $150,000.
It is important to note that the Big Sky Trust Fund support provided by the City of Bozeman, in
longstanding partnership with Prospera, is not without financial risk, although the City and Prospera
work closely together with the assisted business to minimize the risk. If the number of jobs identified in
the contract is not filled by the assisted business, but grant dollars are received by the assisted business,
the contract between the assisted business and the City of Bozeman contains the following financial
restoration sections:
Section 8 Conditions on Method of Reimbursement:
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.
AND
Section 3 Compensation and Consideration:
c. The Assisted Business agrees that if the local government or tribal government
request the funds before the jobs are created, and the Department agrees to
that request, the local or tribal government and the assisted business receiving
BSTF financial assistance are liable for the full amount of the award that is
advanced by the Department, if the assisted business:
a. Fails to create or maintain the number of net new eligible jobs as
specified in the executed contract and assistance agreement, or
b. Fails to inject the required amount of match into the project as specified in the
executed contract and assistance agreement.
Additionally the Department may recapture funds if:
a. At the end of the contract period the Department has overpaid based on the
number of net new jobs at the end of the contract period.
b. The business ceases operations at the Project Site within the contract period.
While important to be aware of the contractual relationships and obligations, it is also important
to note that, to date, neither the City nor the Department of Commerce has exercised theses sections
on an assisted business in Bozeman. In partnership with the Department of Commerce and Prospera,
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the City has supported seven BSTF assisted businesses. The chart below shows the details of the
businesses assisted since January, 2017. Note that one City of Bozeman grant has been closed out prior
to the generation of the table (Apptus) and one (Simms Fishing Products) is located in Gallatin County.
ATTACHMENTS:
1) Resolution 4875; and
2) XY Planning Signature Certification.
Report compiled on Wednesday, January 18, 2018.
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RESOLUTION NO. 4875
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, RELATING TO THE APPLICATION TO BIG SKY ECONOMIC
DEVELOPMENT TRUST FUND PROGRAM ADMINISTERED BY THE STATE OF
MONTANA, DEPARTMENT OF COMMERCE, ON BEHALF OF XY PLANNING
NETWORK.
WHEREAS, the Bozeman City Commission is committed to facilitating economic
diversification in the City and the region; and
WHEREAS, the Bozeman City Commission is committed to facilitating mid- and high-
wage job creation and expansion, thus positively impacting the economy of the entire region; and
WHEREAS, XY Planning Network, desires to expand their business and create additional technology-related jobs in Bozeman; and
WHEREAS, the City Commission has determined that the technology sector has high
growth potential, supports mid to high wage jobs and supports economic diversity; and
WHEREAS, the Montana Department of Commerce administers the Big Sky Economic
Development Trust Fund Category I job creation program, a state-funded program, to create good
paying jobs for Montana residents, promote long-term, stable economic growth in Montana, create
partnerships, expand existing businesses and provide a better life for future generations through
greater economic growth and prosperity; and
WHEREAS, the City Commission hereby authorizes and appoints The Prospera Business
Network to administer, on behalf of the City of Bozeman, all aspects of the Big Sky Trust Fund
Economic Development Category I grant and provide administrative support and other
responsibility for the management and appropriate reporting to the Montana Department of Commerce.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, the City agrees to submit an application, through The Prospera Business
Network, to the Montana Department of Commerce, Big Sky Economic Development Trust Fund
Program to assist XY Planning Network in their expansion project and that The Prospera Business
Network will manage all aspects of the grant.
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PASSED AND APPROVED by the City Commission of the City of Bozeman,
Montana, at a regular session thereof held on the 29th day of January, 2018.
CYNTHIA L. ANDRUS
Mayor
ATTEST:
ROBIN CROUGH, MPA City Clerk
APPROVED AS TO FORM:
GREG SULLIVAN City Attorney
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VIII. CERTIFICATION BY LOCAL GOVERNMENT AND BUSINESS
As the responsible authorized agents of City of Bozeman, and XY Planning Network LLC, we hereby submit this
Big Sky Economic Development Trust Fund Application.
The information presented in this application is, to the best of our knowledge, true, complete and accurately
represents the proposed project. We understand that additional information and documentation may be required. In
addition, we understand that the local or tribal government applicant and the assisted business receiving BSTF
financial assistance are liable for the full amount of the award that is advanced by the Department if the assisted
business: misrepresents itself or its claims, fails to create or maintain the number of net new eligible jobs as specified
in the executed contract and assistance agreement, fails to inject the required amount of match into the project as
specified in the executed contract and assistance agreement, or ceases operations at the Project Site.
X The Applicant designates Paul Reichert (406-587-3113) and David Atherton (406-587-3113) as the authorized
contacts for any additional Department requests for the release of additional information regarding this
application for BSTF funds.
The City of Bozeman will accept responsibility for management of the project and compliance with Big Sky Economic
Development Trust Fund regulations.
XY Planning Network LLC will accept responsibility for compliance with applicable Big Sky Economic Development
Trust Fund regulations as specified in this application.
Name
(typed): Cyndy Andrus Local Government
Title (typed): Mayor, City of Bozeman
Signature:X
Date:
As the responsible authorized agents of the XY Planning Network LLC, we hereby submit this Big Sky Economic
Development Trust Fund Application.
The information presented in this application is, to the best of our knowledge, true, complete and accurately
represents the proposed project. We understand that additional information and documentation may be required. In
addition, we understand that the local or tribal government applicant and the assisted business receiving BSTF
financial assistance are liable for the full amount of the award that is advanced by the Department if the assisted
business: misrepresents itself or its claims, fails to create or maintain the number of net new eligible jobs as specified
in the executed contract and assistance agreement, fails to inject the required amount of match into the project as
specified in the executed contract and assistance agreement, or ceases operations at the Project Site.
The assisted business agrees that the Montana Department of Commerce and the Montana Department of Revenue
may share financial and tax information related to this application.
Name
(typed):
Kate Ross
Assisted Business
Title (typed):Director of XYPN Academy
Authorized Representative
Signature:X
Date:
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Steve Bullock Mike Cooney
GOVERNOR LT. GOVERNOR
STATE CAPITOL • P.O. BOX 200801 • HELENA, MONTANA 59620-0801 TELEPHONE: 406-444-3111 • FAX: 406-444-5529 • WEBSITE: WWW.MT.GOV
OFFICE OF THE GOVERNOR
STATE OF MONTANA
July 20, 2018
Mayor Cyndy Andrus
City of Bozeman
P O Box 1230 Bozeman, MT 59771-1230
RE: Notice of Big Sky Economic Development Trust Fund Grant Award for XY Planning Network, LLC
Dear Mayor Andrus: Congratulations!
On behalf of the State of Montana, it is my pleasure to notify you that the City of Bozeman has been awarded up to $ 50,000.00 from the Montana Department of Commerce – Big Sky Economic Development Trust Fund (BSTF)
Program to assist XY Planning Network, LLC. This award, effective July 19, 2018, is for XY Planning Network, LLC to be reimbursed on eligible wages that will enable the business to create ten (10) net new BSTF eligible jobs within one year.
My administration’s Main Street Montana business plan is built on the idea that public-private partnerships are
key to growing Montana’s economy. Every project funded through BSTF is a step toward the plan’s goals of
creating opportunities for today’s workforce to be stronger and more competitive for our next generation of entrepreneurs. I want to personally thank you for partnering with the state to create jobs for Montanans.
The City of Bozeman will be contacted directly with more information in the coming weeks by the BSTF staff. If you should have any questions, please contact the Division Administrator, Sean Becker. Sean can be reached at
(406) 841-2707 or by email at seanbecker@mt.gov.
Again, congratulations and good luck on the successful completion of your project.
Sincerely,
STEVE BULLOCK
Governor cc: Raul Dominzuez, XY Planning Network, LLC
David Atherton, Prospera Business Network Annmarie Robinson, Big Sky Economic Development Trust Fund Program
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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
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.
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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
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.
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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
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.
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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
(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.
(l) 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.
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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
(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
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(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.
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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
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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
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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
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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
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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: (I) 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.
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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
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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.
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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.
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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: ________________________________________________________________ Cyndy Andrus Date
Mayor, City of Bozeman
ATTEST:
________________________________
Robin Crough, MPA, City Clerk Date
By: ________________________________________________________________ Pam Haxby-Cote Date
Director, Montana Department of Commerce
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