HomeMy WebLinkAbout25 - Professional Services Agreements - Baker Tilly - Munipal Advisory ServicesProfessional Services Agreement – Baker Tilly Page 1 of 17
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 8th day of April, 2025 (“Effective
Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal
corporation organized and existing under its Charter and the laws of the State of Montana, 121 North
Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as “City,” and, Baker Tilly Advisory Group, LP and its affiliates,
hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as
“Party” and collectively as “Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: It is anticipated that projects undertaken in accordance with this Agreement
will be at the request of the City. The scope of services, additional terms and associated fee for
individual engagements will be contained in a Scope Appendix or Appendices to this Agreement.
Authorization to provide services will commence upon execution and return of this Agreement and
one or more Appendices.
2. Term/Effective Date: This Agreement is effective upon the Effective Date and will
expire on the 8th day of April , 2030, unless earlier terminated in accordance with this Agreement.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of each Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in each Scope of
Services. Any alteration or deviation from the described services that involves additional costs above
the Agreement amount will be performed by Contractor after written request by the City, and will
become an additional charge over and above the amount listed in each Scope of Services. The City
must agree in writing upon any additional charges.
5.Contractor’s Representations and Warranties: To induce City to enter into this
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 2 of 17
Agreement, Contractor makes the following representations and warranties:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of Services.
b. Contractor represents and warrants to City that the services required by this Agreement
shall be performed in accordance with generally accepted industry standards of care and competence;
that it has the power to enter into and perform this Agreement and grant the rights granted in it; and
that its performance of this Agreement shall not infringe upon or violate the rights of any third party,
whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any
nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or
exercise control as to general procedures or formats necessary to have these services meet this
warranty. This section includes the Contractor's only warranty concerning the services and any
Deliverable, and is made expressly in lieu of all other warranties and representations, express or
implied, including any implied warranties of merchantability, accuracy, title, noninfringement or
fitness for a particular purpose or otherwise.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor
is an independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s
personnel policies handbook and may not be considered a City employee for workers’ compensation
or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in
any dealings between Contractor and any third parties. Though the services may include Contractor’s
advice or recommendations, all decisions regarding the implementation of such advice or
recommendations shall be the responsibility of, and made by, the City.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act,
Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for
all members and employees of Contractor’s business, except for those members who are exempted
by law.
Contractor shall furnish the City with copies showing one of the following: (1) an insurance
certificate for workers’ compensation coverage by an insurer licensed and authorized to provide
workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 3 of 17
reimbursement from City, steps to promptly to alleviate or resolve all such labor problems or disputes.
The specific steps Contractor shall take shall be left to the discretion of Contractor; provided,
however, that Contractor shall bear all costs of any related legal action. Contractor shall provide
immediate relief to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
7. Indemnity/Waiver of Claims and Limitation on Damages/Insurance:
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against third party claims, demands, suits, damages,
losses, and expenses, including reasonable defense attorney fees, to the extent such third party claim
is finally determined to be caused by the gross negligence or intentional misconduct of the Contractor
or Contractor’s agents or employees. Notwithstanding the foregoing, City hereby releases Contractor,
its subsidiaries and their present or former partners, principals, employees, officers and agents from,
and acknowledges that such parties shall not be required to indemnify City against, any costs, fees,
expenses, damages and liabilities (including attorneys’ fees and all defense costs) relating to or arising
as a result of the acts or omissions of City. Furthermore, because of the importance of the information
that City provides to Contractor with respect to Contractor’s ability to perform the services, City
hereby releases Contractor and its present and former partners, principals, agents and employees from
any liability, damages, fees, expenses and costs, including attorney's fees, relating to the services that
arise from or relate to any information, including representations by management, provided by City,
its personnel or agents, that is not complete, accurate or current.
Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations
of indemnity that would otherwise exist. The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the City as
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should the City be required to bring an action against the Contractor to assert its right to
defense or indemnification under this Agreement or under the Contractor’s applicable insurance
policies required below, the City shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of competent
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 4 of 17
jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to
indemnify the City for a claim(s) or any portion(s) thereof.
In the event of an action filed against the City resulting from the City’s performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City, including the right of
contribution for loss or damage to person or property arising from, growing out of, or in any way
connected with or incident to the performance of this Agreement except “responsibility for City’s
own fraud, for willful injury to the person or property of another, or for violation of law, whether
willful or negligent” as per 28-2-702, MCA.
To the extent allowed under applicable law, the aggregate liability (including attorney’s fees
and all other costs) of either party and its present or former partners, principals, agents or employees
to the other party related to the services performed under this Agreement shall not exceed the fees
paid to Contractor under this Agreement to which the claim relates, except to the extent finally
determined to have resulted from the gross negligence, willful misconduct or fraudulent behavior of
the at-fault party. Additionally, in no event shall either party be liable for any lost profits, lost business
opportunity, lost data, consequential, special, incidental, exemplary or punitive damages, delays or
interruptions arising out of or related to this Agreement even if the other party has been advised of
the possibility of such damages.
Each party recognizes and agrees that the warranty disclaimers and liability and remedy
limitations in this Agreement are material bargained for bases of this Agreement and that they have
been taken into account and reflected in determining the consideration to be given by each party under
this Agreement and in the decision by each party to enter into this Agreement. The terms of this
section shall apply regardless of the nature of any claim asserted (including, but not limited to,
contract, tort or any form of negligence, whether of City, Contractor or others), but these terms shall
not apply to the extent finally determined to be contrary to the applicable law or regulation. These
terms shall also continue to apply after any termination of this Agreement.
You accept and acknowledge that any legal proceedings arising from or in conjunction with
the services provided under this Agreement must be commenced within eighteen (18) months after
the performance of the services for which the action is brought, without consideration as to the time
of discovery of any claim.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 5 of 17
In addition to and independent from the above, Contractor shall at Contractor’s expense secure
insurance coverage through an insurance company or companies duly licensed and authorized to
conduct insurance business in Montana which insures the liabilities and obligations specifically
assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion
for liabilities specifically assumed by the Contractor in this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall
furnish to the City an accompanying certificate of insurance and accompanying endorsements in
amounts not less than as follows:
•Workers’ Compensation – statutory;
•Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
•Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
•Automobile Liability - $1,000,000 combined single limit property damage/bodily
injury ; and
•Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City shall be endorsed as an
additional or named insured on a primary non-contributory basis on the Commercial General,
Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements
must be in a form suitable to City and Contractor shall provide a thirty (30) day notice of cancellation
or non-renewal. Contractor shall notify City within five (5) business days of Contractor’s receipt of
notice that any required insurance coverage will be terminated or Contractor’s decision to terminate
any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the Contractor
commencing work.
8. Termination for Contractor’s Fault:
a.If Contractor refuses or fails to timely do the work, or any part thereof, or fails
to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and
the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 6 of 17
to Contractor’s Fault”). The City may then take over the work and complete it, either with its
own resources or by re-letting the contract to any other third party.
b.In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c.Any termination provided for by this Section 8 shall be in addition to any other
remedies to which the City may be entitled under the law or at equity.
d.In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9.Termination for City’s Convenience:
a.Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement, the City may
terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s
Convenience”). The termination shall be effective in the manner specified in the Notice of
Termination for City’s Convenience and shall be without prejudice to any claims that the City
may otherwise have against Contractor.
b.Upon receipt of a Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall promptly cease performance under this
Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall promptly cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as
may be necessary to preserve, protect, and maintain work already completed or immediately
in progress.
c.In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of the
Notice of Termination for City’s Convenience.
d.The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 7 of 17
nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a.In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b.In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within 180 days of the facts and circumstances giving rise to the claim.
In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert
such claim.
11.Representatives and Notices:
a.City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Melissa Hodnett or such other individual as City shall designate in writing.
Whenever approval or authorization from or communication or submission to City is required
by this Agreement, such communication or submission shall be directed to the City’s
Representative and approvals or authorizations shall be issued only by such Representative;
provided, however, that in exigent circumstances when City’s Representative is not available,
Contractor may direct its communication or submission to other designated City personnel or
agents as designated by the City in writing and may receive approvals or authorization from
such persons.
b.Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be Steven Scharff or such other individual as Contractor shall
designate in writing. Whenever direction to or communication with Contractor is required by
this Agreement, such direction or communication shall be directed to Contractor’s
Representative; provided, however, that in exigent circumstances when Contractor’s
Representative is not available, City may direct its direction or communication to other
designated Contractor personnel or agents.
c. Notices: All notices required by this Agreement shall be in writing and
shall be provided to the Representatives named in this Section. Notices shall be deemed given
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 8 of 17
when delivered, if delivered by courier to Party’s address shown above during normal business
hours of the recipient; or when sent, if sent by email or fax (with a successful transmission
report) to the email address or fax number provided by the Party’s Representative; or on the
fifth business day following mailing, if mailed by ordinary mail to the address shown above,
postage prepaid.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will
not refuse employment to a person, bar a person from employment, or discriminate against a person
in compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation,
gender identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor shall
be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act).
Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has
been found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 9 of 17
15.Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City property
or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of
and shall comply with its responsibilities and obligations under any applicable U.S. Department of
Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans. City
shall have the right to request proof of such compliance and Contractor shall be obligated to furnish
such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
16.Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17.Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18.Non-Waiver: A waiver by either party of any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party’s right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent default
or breach.
19.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to seek reasonable
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 10 of 17
attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21.Dispute Resolution:
a.Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions.
b.If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR
THE RELATIONSHIP ESTABLISHED HEREUNDER.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24.Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
25.Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
30. Consent to Electronic Signatures: The Parties have consented to execute this
Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act,
Title 30, Chapter 18, Part 1, MCA.
31. Extensions: this Agreement may, upon mutual agreement, be extended for a period
of one year by written agreement of the Parties. In no case, however, may this Agreement run longer
than April 8th, 2031.
32. Ownership of Deliverables: Subject to Contractor’s rights in Contractor’s Knowledge
(as defined below) or unless otherwise set forth to the contrary in an applicable statement of work, the
Contractor shall deliver, assign, transfer and convey to City all rights including, but not limited to,
intellectual property rights (patents, trademarks, copyrights, and trade secrets) title, and interest to all
documents, data, materials, programming, processes, studies, reports, surveys, proposals, plans, codes,
scientific information, technological information, regulations, maps, equipment, charts, schedules,
photographs, exhibits, software, software source code, documentation, services furnished hereunder,
and other materials and property prepared, provided or developed under this Agreement
("Deliverables").
Notwithstanding the foregoing, Contractor will maintain all ownership right, title and interest
to all of Contractor’s Knowledge. For purposes of this Agreement “Contractor’s Knowledge” means
Contractor’s proprietary programs, modules, products, inventions, designs, data, or other information,
including all copyright, patent, trademark and other intellectual property rights related thereto, that are
(1) owned or developed by Contractor prior to the Effective Date of this Agreement (“Contractor’s
Preexisting Knowledge”) (2) developed or obtained by Contractor after the Effective Date, including
during the course of providing services under this Agreement, but: (i) which are developed or obtained
Professional Services Agreement – Baker Tilly Page 11 of 17
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 12 of 17
without using City’s confidential information, or (ii) which City has not paid for such development; and
(3) extensions, enhancements, or modifications of Contractor’s Preexisting Knowledge which do not
include or incorporate City’s confidential information. To the extent that any Contractor Knowledge is
incorporated into the Deliverables, Contractor grants to City a non-exclusive, paid up, perpetual royalty-
free worldwide license to use such Contractor Knowledge in connection with the Deliverables, and for
no other purpose without the prior written consent of Contractor.
The documentation for this engagement, including the workpapers, is not part of the
Deliverables, is the property of Contractor and constitutes confidential information. Contractor may
have a responsibility to retain the documentation for a period of time sufficient to satisfy any applicable
legal or regulatory requirements for records retention. Contractor does not retain any original client
records; so Contractor will return such records to City at the completion of the services rendered under
this Agreement. When such records are returned to City, it is City’s responsibility to retain and protect
its accounting and other business records for future use, including potential review by any government
or other regulatory agencies. By City’s signature below, City acknowledges and agrees that, upon the
expiration of the documentation retention period, Contractor shall be free to destroy its workpapers
related to this engagement. If Contractor is required by law, regulation or professional standards to make
certain documentation available to regulators, City hereby authorizes Contractor to do so.
33. Acceptance: City shall accept Deliverables which (i) substantially conform to the
specifications in the applicable Scope Appendix or (ii) where applicable, successfully complete the
mutually agreed to acceptance test plan described in the applicable Scope Appendix. City will promptly
give Contractor written notification of any nonconformance of the Deliverables with such requirements
(Nonconformance) within thirty (30) days following delivery of such Deliverables, and Contractor shall
have a reasonable period of time, based on the severity and complexity of the Nonconformance, to
correct the Nonconformance so that the Deliverables substantially conform to the specifications. If City
uses the Deliverable before acceptance, fails to promptly notify Contractor of any Nonconformance
within such 30-day period, or delays the beginning of acceptance testing more than five (5) business
days past the agreed upon date for the start of such acceptance testing as specified or otherwise
determined under the Statement of Work, then the Deliverable shall be deemed irrevocably accepted by
City.
34. Confidentiality: With respect to any information supplied in connection with this Agreement that
is designated by the disclosing party (the Disclosing Party) as “Confidential Information” either by
marking it as “confidential” prior to disclosure to the receiving party (the Recipient) or, if such
information is disclosed orally or by inspection, then by indicating to the Recipient that the information
is confidential at the time of disclosure and confirming in writing to the Recipient, the confidential
nature of the information within ten (10) business days of such disclosure, the Recipient agrees to: (i)
protect the Confidential Information in the same manner in which it protects its confidential information
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 13 of 17
of like importance, but in no case using less than reasonable care; (ii) use the Confidential Information
only to perform its obligations under this Agreement; and (iii) reproduce Confidential Information only
as required to perform its obligations under this Agreement. This section shall not apply to information
which is (A) publicly known, (B) already known to the recipient; (C) disclosed to a third party without
restriction; (D) independently developed; or (E) disclosed or subject to disclosure pursuant to legal
requirement or order, or as is required by regulations or professional standards governing the Services
performed. Subject to the foregoing, Contractor may disclose City’s Confidential Information to its
subcontractors and subsidiaries.
35. Data Privacy and Security: To the extent the Services require Contractor to receive
personal data or personal information from City, Contractor may process, and engage subcontractors to
assist with processing, any personal data or personal information, as those terms are defined in
applicable privacy laws. Contractor’s processing shall be in accordance with the requirements of the
applicable privacy laws relevant to the processing in providing services hereunder, including services
performed to meet the business purposes of the City, such as Contractor’s tax, advisory, and other
consulting services. Applicable privacy laws may include any local, state, federal or international laws,
standards, guidelines, policies or regulations governing the collection, use, disclosure, sharing or other
processing of personal data or personal information with which Contractor or its clients must comply.
Such privacy laws may include (i) the EU General Data Protection Regulation 2016/679 (GDPR); (ii)
the California Consumer Privacy Act of 2018 (CCPA); and/or (iii) other laws regulating marketing
communications, requiring security breach notification, imposing minimum security requirements,
requiring the secure disposal of records, and other similar requirements applicable to the processing of
personal data or personal information. Contractor is acting as a Service Provider/Data Processor, as
those terms are defined respectively under the CCPA/GDPR, in relation to City personal data and
personal information. As a Service Provider/Data Processor processing personal data or personal
information on behalf of City, Contractor shall, unless otherwise permitted by applicable privacy law,
(a) follow City instructions; (b) not sell personal data or personal information collected from the City
or share the personal data or personal information for purposes of targeted advertising; (c) process
personal data or personal information solely for purposes related to the City’s engagement and not for
Contractor’s own commercial purposes; and (d) cooperate with and provide reasonable assistance to
City to ensure compliance with applicable privacy laws. City is responsible for notifying Contractor of
any applicable privacy laws the personal data or personal information provided to Contractor is subject
to, and City represents and warrants it has all necessary authority (including any legally required consent
from individuals) to transfer such information and authorize Contractor to process such information in
connection with the Services described herein. City further understands Baker Tilly US, LLP and Baker
Tilly Advisory Group, LP may co-process City data as necessary to perform the Services, pursuant to
the alternative practice structure in place between the two entities. Contractor is responsible for
notifying City if Contractor becomes aware that it can no longer comply with any applicable privacy
law and, upon such notice, shall permit City to take reasonable and appropriate steps to remediate
personal data or personal information processing.
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 14 of 17
City agrees that Contractor has the right to utilize City data to improve internal processes and
procedures and to generate aggregated/de-identified data from the data provided by City to be used for
Contractor business purposes and with the outputs owned by Contractor. For clarity, Contractor will
only disclose aggregated/de-identified data in a form that does not identify City, City employees, or any
other individual or business entity and that is stripped of all persistent identifiers. City is not responsible
for Contractor’s use of aggregated/de-identified data.
Contractor has established information security related operational requirements that support
the achievement of our information security commitments, relevant information security related laws
and regulations, and other information security related system requirements. Such requirements are
communicated in Contractor’s policies and procedures, system design documentation, and contracts
with customers. Information security policies have been implemented that define our approach to how
systems and data are protected. City is responsible for providing timely written notification to
Contractor of any additions, changes or removals of access for City personnel to Contractor provided
systems or applications. If City becomes aware of any known or suspected information security or
privacy related incidents or breaches related to this Agreement, City should timely notify Contractor
via email at dataprotectionofficer@bakertilly.com.
Contractor and City recognize that in performing the Services, Contractor may receive, or
otherwise have access to Protected Health Information ("PHI") and thereby become a Business
Associate of City (all as defined in the Health Insurance Portability and Accountability Act of 1996 and
its implementing regulations (45 C.F.R. Parts 160-64) ("HIPAA")). In such event, the parties shall
protect PHI in accordance with the form of a HIPAA Business Associate Addendum. Contractor and
City each agree to comply with the terms and conditions of the HIPAA Business Associate Agreement
once executed, as well as federal and state health information confidentiality laws and regulations to
the extent required, including but not limited to the requirements of the Standards for Privacy of
Individually Identifiable Health Information published at 45 CFR parts 160 and 164.
36. Conflict Disclosure Applicable to Municipal Advisory Services:
Legal or Disciplinary Disclosure. Baker Tilly Municipal Advisors (BTMA) is required to
disclose to the SEC information regarding criminal actions, regulatory actions, investigations,
terminations, judgments, liens, civil judicial actions, customer complaints, arbitrations and civil
litigation involving BTMA. Pursuant to MSRB Rule G-42, BTMA is required to disclose any legal or
disciplinary event that is material to the City's evaluation of BTMA or the integrity of its management
or advisory personnel.
There are no criminal actions, regulatory actions, investigations, terminations, judgments, liens,
civil judicial actions, customer complaints, arbitrations or civil litigation involving BTMA. Copies of
BTMA filings with the SEC can currently be found by accessing the SEC's EDGAR system Company
Search Page which is currently available at
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 15 of 17
https://www.sec.gov/edgar/searchedgar/companysearch.html and searching for either Baker Tilly
Municipal Advisors, LLC or for our CIK number which is 0001616995. The MSRB has made available
on its website (www.msrb.org) a municipal advisory client brochure that describes the protections that
may be provided by MSRB rules and how to file a complaint with the appropriate regulatory authority.
Contingent Fee. The fees to be paid by the City to BTMA are or may be based on the size of
the transaction and partially contingent on the successful closing of the transaction. Although this form
of compensation may be customary in the municipal securities market, it presents a conflict because
BTMA may have an incentive to recommend unnecessary financings, larger financings or financings
that are disadvantageous to the City. For example, when facts or circumstances arise that could cause a
financing or other transaction to be delayed or fail to close, BTMA may have an incentive to discourage
a full consideration of such facts and circumstances, or to discourage consideration of alternatives that
may result in the cancellation of the financing or other transaction.
Hourly Fee Arrangements. Under an hourly fee form of compensation, BTMA will be paid an
amount equal to the number of hours worked multiplied by an agreed upon billing rate. This form of
compensation presents a potential conflict of interest if BTMA and the City do not agree on a maximum
fee under the applicable Appendix to this Engagement Letter because BTMA will not have a financial
incentive to recommend alternatives that would result in fewer hours worked. In addition, hourly fees
are typically payable by the City whether or not the financing transaction closes.
Fixed Fee Arrangements. The fees to be paid by the City to BTMA may be in a fixed amount
established at the outset of the service. The amount is usually based upon an analysis by City and BTMA
of, among other things, the expected duration and complexity of the transaction and the work
documented in the Scope Appendix to be performed by Contractor. This form of compensation presents
a potential conflict of interest because, if the transaction requires more work than originally
contemplated, Contractor may suffer a loss. Thus, Contractor may recommend less time-consuming
alternatives, or fail to do a thorough analysis of alternatives.
BTMA manages and mitigates conflicts related to fees and/or other services provided primarily
through clarity in the fee to be charged and scope of work to be undertaken and by adherence to MSRB
Rules including, but not limited to, the fiduciary duty which it owes to the City requiring BTMA to put
the interests of the City ahead of its own and BTMA's duty to deal fairly with all persons in its municipal
advisory activities.
To the extent any additional material conflicts of interest have been identified specific to a scope
of work the conflict will be identified in the respective Scope Appendix. Material conflicts of interest
that arise after the date of a Scope Appendix will be provided to the City in writing at that time.
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 16 of 17
37. Contractor Entity: Baker Tilly US, LLP and Baker Tilly Advisory Group, LP and its
subsidiary entities provide professional services through an alternative practice structure in accordance
with the AICPA Code of Professional Conduct and applicable laws, regulations and professional
standards. Baker Tilly US, LLP is a licensed independent CPA firm that provides attest services to
clients. Baker Tilly Advisory Group, LP and its subsidiary entities provide tax and business advisory
services to their clients. Baker Tilly Advisory Group, LP and its subsidiary entities are not licensed CPA
firms. Baker Tilly Advisory Group, LP and its subsidiaries and Baker Tilly US, LLP are independent
members of Baker Tilly International. Baker Tilly International Limited is an English company. Baker
Tilly International provides no professional services to clients. Each member firm is a separate and
independent legal entity, and each describes itself as such. Baker Tilly Advisory Group, LP and Baker
Tilly US, LLP are not Baker Tilly International's agents and do not have the authority to bind Baker
Tilly International or act on Baker Tilly International's behalf. None of Baker Tilly International, Baker
Tilly Advisory Group, LP, Baker Tilly US, LLP, nor any of the other member firms of Baker Tilly
International has any liability for each other's acts or omissions. The name Baker Tilly and its associated
logo is used under license from Baker Tilly International Limited
38. Affiliated Entities: Baker Tilly Investment Services, LLC (BTIS), a U.S. Securities and
Exchange Commission (SEC) registered investment adviser, may provide services to the City in
connection with the investment of proceeds from an issuance of securities. In such instances, services
will be provided under a separate engagement, for an additional fee. Notwithstanding the foregoing,
Baker Tilly may act as solicitor for and recommend the use of BTIS, but the City shall be under no
obligation to retain BTIS or to otherwise utilize BTIS relative to City’s investments. The fees paid with
respect to investment services are typically based in part on the size of the issuance proceeds and Baker
Tilly may have incentive to recommend larger financings than would be in the City’s best interest.
Baker Tilly will manage and mitigate this potential conflict of interest by this disclosure of the affiliated
entity's relationship, a Solicitation Disclosure Statement when City retains BTIS's services and
adherence to Baker Tilly's fiduciary duty and/or fair dealing obligations to the City.
Baker Tilly Capital, LLC (BTC) Baker Tilly Capital, LLC (BTC) is a limited-service broker-
dealer specializing in merger and acquisition, capital sourcing, project finance and corporate finance
advisory services. BTC does not participate in any municipal offerings advised on by its affiliate Baker
Tilly Municipal Advisors. Any services provided to City by BTC would be done so under a separate
engagement for an additional fee.
Baker Tilly Municipal Advisors (BTMA) is registered as a "municipal advisor" pursuant to
Section 15B of the Securities Exchange Act and rules and regulations adopted by the SEC and the
Municipal Securities Rulemaking Board (MSRB). As such, BTMA may provide certain specific
municipal advisory services to the City. BTMA is neither a placement agent to the City nor a
broker/dealer. The offer and sale of any Bonds is made by the City, in the sole discretion of the City,
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1
Professional Services Agreement – Baker Tilly Page 17 of 17
and under its control and supervision. The City acknowledges that BTMA does not undertake to sell or
attempt to sell bonds or other debt obligations and will not take part in the sale thereof.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA _Baker Tilly Advisory Group, LP__________
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Chuck Winn, Interim City Manager
Print Name: Elizabeth Bergman
Print Title: Principal_________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
Docusign Envelope ID: D1ACA20B-91F8-4DE1-B363-53781E4AAAD1