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Big Sky Economic Development Trust Fund Program Contract #MT-BSTF-1-23-07
Montana Department of Commerce Updated 6.13.22 City of Bozeman
MONTANA DEPARTMENT OF COMMERCE
BIG SKY ECONOMIC DEVELOPMENT TRUST FUND PROGRAM
CONTRACT # MT-BSTF-1-23-07
This Contract is entered into by City of Bozeman, Bozeman, Montana (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 Program (“BSTF” or “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).
Section 2. 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 3. 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 4. 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.
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Big Sky Economic Development Trust Fund Program Contract #MT-BSTF-1-23-07
Montana Department of Commerce Updated 6.13.22 City of Bozeman
Section 5. EFFECTIVE DATE AND TIME OF PERFORMANCE
(a) This Contract shall take effect on July 6, 2022 and will terminate upon completion
of the final closeout by the Department, or by July 6, 2024, whichever comes first,
unless otherwise terminated in accordance with the terms of this Contract. The
employment level of Associated Logistics Group LLC one day prior to the
contract effective date is 8 (eight) permanent, full-time employees onsite, per the
certified baseline job report.
(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.
Section 6. SCOPE OF WORK
Program funds have been awarded to assist the Contractor and Associated Logistics
Group LLC, 106 East Babcock Street, Suite 1D, Bozeman, Montana, (the “Assisted
Business”) with the purchase of computers and equipment and for wage
reimbursement in the creation of jobs in Montana.
The Assisted Business has agreed to create 13 eligible net new jobs at the project site
located at Bozeman (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 6, 2022. 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 $23.28 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.
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Big Sky Economic Development Trust Fund Program Contract #MT-BSTF-1-23-07
Montana Department of Commerce Updated 6.13.22 City of Bozeman
Section 7. BUDGET
(a) The total amount to be awarded to the Contractor under this Contract will not
exceed $65,000 to be used as follows:
• Up to $59,800 or $4,600 per job to assist the Assisted Business with the
purchase of computers and equipment and for wage reimbursement; and
• Up to $5,200 or $400 per job 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 6, 2024 will
revert to the Big Sky Economic Development Trust Fund.
(d) The total amount to be awarded to the Contractor 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 $65,000 for the
entire Contract. The Department will not reimburse the Contractor for any costs
incurred prior to July 6, 2022, nor for any expenses not included in the approved
budget or not clearly and accurately supported by the Contractor’s records.
Section 8. 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 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 9. LIAISONS
For the Department:
Annmarie Robinson (or successor)
Section Manager, Big Sky Economic Development Trust Fund Program, MDOC
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Big Sky Economic Development Trust Fund Program Contract #MT-BSTF-1-23-07
Montana Department of Commerce Updated 6.13.22 City of Bozeman
P.O. Box 200505
Helena, MT 59620-0505
406-841-2250
For the Contractor:
Jeff Mihelich (or successor)
City Manager, City of Bozeman
PO Box 1230, Bozeman, MT 59771
406-582-2383
Section 10. METHOD OF REIMBURSEMENT
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) The Contractor shall satisfy the matching funds requirements consistent with the
purposes expressed in the Contractor’s application during the period of the
Contract.
(f) 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.
(g) As further set forth in Section 4 ACCEPTANCE OF PROGRAM REQUIREMENTS,
and Section 17 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.
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(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) At the request of the Department, Requests for Payment for contracted or
subcontracted services must attach appropriate documentation demonstrating
compliance with contract requirements.
(n) The Contractor may not use monies provided through this Contract as payment for
Project costs that are reimbursed from other sources.
(o) The Department will withhold ten percent (10%) of the total amount awarded to the
Contractor until the Department approves the complete job creation project and all
tasks outlined in Section 6 SCOPE OF WORK are completed by the Contractor
and approved by the Department.
Section 11. 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
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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 with
Progress Report and Job Certification Form. Narrative Progress Report 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.
(b) 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.
(c) 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.
(d) 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.
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• 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.
Section 12. 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.
(c) 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.
(d) 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.
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Big Sky Economic Development Trust Fund Program Contract #MT-BSTF-1-23-07
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Section 13. NOTICE
All notices required under the provisions of the Contract must be in writing and delivered
to the parties’ liaisons either by regular mail or personal service.
Section 14. REFERENCE TO CONTRACT
The Contract number MUST appear on all invoices, packing lists, packages and
correspondence pertaining to the Contract.
Section 15. ASSIGNMENT, TRANSFER AND SUBCONTRACTING
The Contractor shall not assign, transfer or subcontract any portion of the Contract
without the express written consent of the Department.
Section 17. TERMINATION OF CONTRACT
Unless otherwise stated, the Department may, by written notice to the Contractor,
terminate the Contract in whole or in part at any time the Contractor fails to perform the
Contract. In the event of termination due to the Contractor’s failure to perform or comply
with any of the services, duties, terms, or conditions of 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 may, at its sole discretion, terminate or reduce the scope of the Contract if
available funding is eliminated or reduced for any reason.
Section 18. COMPLIANCE WITH APPLICABLE LAWS
Contractor shall, in performance of work under this Contract, fully comply with all
applicable federal, state, or local laws, rules, regulations, and executive orders including
but not limited to, the Montana Human Rights Act, the Equal Pay Act of 1963, 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. Contractor is the employer
for the purpose of providing healthcare benefits and paying any applicable penalties, fees
and taxes under the Patient Protection and Affordable Care Act [P.L. 111-148, 124 Stat.
119]. Any subletting or subcontracting by Contractor subjects subcontractors to the same
provisions. In accordance with 49-3-207, MCA, and Executive Order No. 04-2016.
Contractor agrees that the hiring of persons to perform this Contract will be made on the
basis of merit and qualifications and there will be no discrimination based on race, color,
sex, pregnancy, childbirth or medical conditions related to pregnancy or 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 by the persons
performing this Contract.
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Section 19. ACCOUNTING, COST PRINCIPLES, AND AUDITING
(a) The Contractor 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 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 2-7-503, 5-13-304, and 18-1-118, MCA and
other authorities, audits for the purposes of ensuring the appropriate
administration, expenditure of the monies, and delivery of services provided
through this Contract.
Section 20. 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 21. 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.
Section 22. 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
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.
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Section 23. 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
insured for all claims arising out of the use of award proceeds provided by the State
of Montana.
(b) 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.
(c) 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.
(d) 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 24. 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
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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 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. 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 27. FORCE MAJEURE
Neither party will be liable for any failure or delay in performing its duties in this agreement
due to Force Majeure Events. “Force Majeure Event” means an event or circumstance
beyond a party’s reasonable control, such as natural catastrophes and acts of terrorism
or war, and the consequences of that event or circumstance. Force Majeure Event does
not include a strike or other labor unrest that affects only that party, an increase in prices
or other change in general economic conditions, a change in law, or an event or
circumstance that results in that Party’s not having sufficient funds to comply with an
obligation to pay. If a Force Majeure Event continues for 30 days, the other party may
terminate this agreement or suspend payments while the event continues.
Section 28. 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 29. ARBITRATION
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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 30. 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 31. 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 32. REGISTRATION WITH SECRETARY OF STATE
Any business intending to transact business in Montana must register with the Secretary
of State. Businesses that are incorporated in another state or country, but which are
conducting activity in Montana, must determine whether they are transacting business in
Montana in accordance with Montana laws. Such businesses may want to obtain the
guidance of their attorney or accountant to determine whether their activity is considered
transacting business.
If businesses determine that they are transacting business in Montana, they must register
with the Secretary of State and obtain a certificate of authority to demonstrate that they
are in good standing in Montana. To obtain registration materials, contact the Office of
the Secretary of State at (406) 444-3665, or visit their website at http://www.sos.mt.gov.
Section 33. 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.
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By: ________________________________________________________________
Jeff Mihelich, City Manager Date
City of Bozeman
ATTEST:
_______________________________________________________________
Mike Maas, Clerk Date
City of Bozeman
By: ________________________________________________________________
Mandy Rambo, Acting Deputy Director Date
Montana Department of Commerce
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