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HomeMy WebLinkAbout15- Business Assistance Agreement with Big Sky Economic Development MONTANA DEPARTMENT OF COMMERCE BIG SKY ECONOMIC DEVELOPMENT TRUST FUND BUSINESS ASSISTANCE AGREEMENT The Business Assistance Agreement is between the local government and the assisted business. The Department recommends that the Agreement address the following items: a. A commitment to create the agreed upon new eligible jobs and the lengths of time those jobs must be sustained to receive funds or to avoid an obligation to reimburse the Department. b. Requirements that the assisted business maintain existing jobs in Montana. c. A commitment by the assisted business to make the required matching investments, at the agreed upon Montana location, within the required Contract time period. d. An obligation to provide proof of any new jobs created, existing jobs retained, and/or new investment made. e. The conditions with which the assisted business must comply to receive the benefits of the BSTF program award made to the local government. f. The terms under which an assisted business will be deemed to have met or failed to meet the terms of the agreement. g. The terms and procedure by which any previously disbursed funds may be recaptured by the local or tribal government or the Department under circumstances in which the assisted business has failed to meet its commitments. h. Permit the Department, Legislative Auditors, or the local or tribal government access to all records necessary to evaluate the compliance with Department policies and the program's administrative rules and all agreements executed under them. i. A certification that the assisted business will not discriminate against any employee or against any person seeking employment based upon race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin. ii j. The Assisted Business must comply with the Montana Workers' Compensation Act (Montana Code Annotate 39-71-120, 39-71-401 and 39-71.405) k. The Assisted Business must be registered With the Secretary of State. 16 Category I Elixiter Agreement 1 Form July 31,2015 it MONTANA DEPARTMENT OF COMMERCE BIG SKY ECONOMIC DEVELOPMENT TRUST FUND A. PARTIES: The parties to this contract (the Contract) are The City of Bozeman, located at 121 N. Rouse Ave. Bozeman, MT 59715 (the "City'), and Elixiter located at 113 Oak St. STE 3A in Bozeman, MT 59715 (the "Assisted Business"); Tax identification number: 45-1609161. B. PURPOSE: The purpose of this Contract is for the Assisted Business to use up to $150,000 in Big Sky Economic Development Trust Fund (BSTF) grant funds, to be used as follows: • Up to $150,000 to assist with purchase of equipment and lease rate reduction. a. The Assisted Business has agreed to create 20 eligible net new jobs at the project site located at Elixiter (the "Assisted Business") in the City of Bozeman 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 on or before September 9, 2015. 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 b. Pays wages that meet or exceed $17.55 per hour, [including employee benefits that meet the requirements of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq.]. In addition, the Assisted Business have agreed to a total new investment at the Project Site, which is equal to or greater than $1 for every$2 Of BSTF financial assistance received, within this Contract time period. • See the BSTF benefit certification provided in the attached Exhibit, which by this reference is made a part of this contract. NOW, THEREFORE, in consideration of the mutual promises and covenants herein, the parties agree as follows: 1. SCOPE AND DUTIES: The City and the Assisted Business shall engage in activities as set forth in the City's Montana Department of Commerce (Department) BSTF application, including any Written modifications resulting from the review of the application by the Department for grant assistance, all of which, by this reference are made a part hereof. The City shall enter into this Assistance Agreement with the Assisted Business that shall be approved in writing by the Department before the release of funds. The City will only release funds to reimburse eligible and documented costs. Project Progress Reports shall be submitted with each request for funds. 2. REPORTING: Unless otherwise specified by the City the Assisted Business will also submit Project Progress Reports quarterly to the City and the Department until the Assisted Business receives Contract closeout approval from the City and Department. The Project Progress Report must be provided on or before January 31, April 30, July 31, and October 31, for each year of the Contract time period and at closeout of the Contract. The Project Progress Reports shall include, but are not limited to, the following information: a) Certified employment documentation from the Assisted Business that includes the identification of all employees in Montana, corresponding employee name, number, title, Category I Elixiter Agreement 2 Form July 31,2015 current hourly wage, date of hire, termination date if applicable, hourly wage at time of hire, average working hours per week and the physical location where the employee is principally employed; b) Total cost and breakdown for the activities that funds are being requested; c) Amount of matching funds expended to date; d) Total amount requested and total remaining under the Contract; and e) Written Progress Report that should include the following items: • detailing progress towards achieving the hiring objectives and project goals that were described in the application; • projected completion date; • any difficulties encountered in working towards these goals; • any changes within the assisted business structure, business name or changes to its registration with the Montana Secretary of State's office; • any other pertinent information related to the grant and progress of the project. 3. COMPENSATION AND CONSIDERATION: The total amount to be reimbursed to the Assisted Business under the Contract shall be up to $150,000 less grant administration fees per eligible net new job created by the Assisted Business for documented costs with reimbursement not to exceed a total of$142,500 dollars for the entire Contract. An eligible net new job is defined as the following: • A new job to the company was created or filled on or after September 9, 2015; • 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 • The job pays wages that meet or exceed $17.55 per hour, including employee benefits that meet the requirements of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq.]. The City will not reimburse the Assisted Business for any costs incurred prior to September 9, 2015 nor for any expenses not included in the approved budget or not clearly and accurately supported by the Assisted Business' records. The Assisted Business shall satisfy the matching funds requirements consistent with the purposes expressed in the City's application during the period of the Contract and shall meet or exceed the 1:2 required match ratio. a) The City will authorize the Assisted Business to draw up to $192,375 (total BSTF grant award minus administration fees) against the funding reserved for the Assisted Business by the Department. In drawing against the reserved amount, the Assisted Business shall follow the instructions supplied by the City. Unless otherwise authorized by the City, the Assisted Business may receive grant 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. Upon reasonable request, the Assisted Business shall provide substantiation of its investment in capital in excess of the required $142,500 new investment at the project site. b) If the City determines that the Assisted Business has failed to satisfactorily carry out the duties and responsibilities under the Contract, the Department may revoke the Assisted Category I Elixiter Agreement 3 Form July 31,2015 Business's ability to access additional funds until such time as the City and the Assisted Business agree on a plan to remedy the deficiency. c) The Assisted Business agrees that if it ceases operations at the Project Site during the Contract period, the Assisted Business shall immediately reimburse the entire amount of the grant advanced up to that time to the Department. d) If the Assisted Business does not create the projected number of net new jobs that meet BSTF program eligibility requirements, the Assisted Business agrees that it shall reimburse the City a prorated portion of any BSTF funds advanced based on documentation of the actual eligible net new jobs created by the Assisted Business. e) The City reserves the right to withdraw a commitment for any BSTF funds which remain un-disbursed at Contract closeout or at the end of the Contract period. f) The Assisted Business certifies that no request for reimbursement submitted for eligible expenses under this Contract shall duplicate any expense submitted to the Department for reimbursement under any other program administered by the Department. 4. PERIOD OF CONTRACT: The Contract will be in effect for the period commencing September 9, 2015 and ending September 9, 2016 unless otherwise terminated by law or in compliance with the terms of the Contract. 5. LIAISON: The contact person for the City is Brit Fontenot 406-582-2258 or successor, and Amber Bolton, Elixiter 406-600-9513 or successor for the Assisted Business. 6. SIGNATORY JOB CREATION REPORTING: The person responsible for approving and signing the Job Creation Certification for Assisted Business is Amber Bolton, Elixiter 406-600- 9513 or successor. 7. INSURANCE: It is advised that you consult your insurer or attorney for more specific advice on provisions that you may want to include under this section, or any other section of this agreement. 8. COMPLIANCE WITH WORKERS' COMPENSATION ACT The Assisted Business accepts responsibility for supplying, and requiring all subcontractors to supply, the City 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 Assisted Business nor its employees are employees of the City. 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 City 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 11 TERMINATION OF CONTRACT IF THE ASSISTED BUSINESS 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 Category I Elixiter Agreement 4 Form July 31,2015 Industry, Employment Relations Division (406) 444-1446. Corporate officers must provide documentation of their exempt status. 9. FAILURE TO HONOR CONTRACT: If the Assisted Business refuses or fails to deliver in accordance with the Contract terms and conditions, the State Procurement Bureau may, in its discretion, suspend the Assisted Business for a period of time from entering into any contracts with the State of Montana. 10. ACCESS AND RETENTION OF RECORDS: Upon receipt of reasonable advance notice, the Assisted Business agrees to provide the City, Montana Department of Commerce, Legislative Auditor or their authorized agents, access to any records necessary to determine contract compliance. The Assisted Business agrees to create and retain records supporting the BSTF project activities for a period of three 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. 11. 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 City, 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 City may, if sufficient program funds are available, compensate the Assisted Business for eligible services rendered and actual, necessary, and eligible expenses incurred as of the revised termination date. The City will notify the Assisted Business of the effective date of the termination or modification of this Contract and, if a reduction in funding is required, will provide the Assisted Business with a modified Project budget. (b) Termination for Cause with Notice to Cure Requirement. The City may terminate this Contract for failure of the Assisted Business, its contractors, or subcontractors to perform or comply with any of the services, duties, terms or conditions contained in this Contract after giving the Assisted Business 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 Assisted Business's, its contractors', or subcontractors'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 Assisted Business. However, at its sole discretion, the City may approve requests by the Assisted Business for reimbursement of expenses incurred. The City's decision to authorize payment of any costs incurred or to recover expended Program funds will be based on a consideration of the extent to which the expenditure of those funds represented a good faith effort of the Assisted Business 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 Assisted Business's control. 12. UNAVAILABILITY OF FUNDING: The City may, at its sole discretion, terminate or reduce the scope of the Contract if available funding is eliminated or reduced for any reason. Category I Elixiter Agreement 5 Form July 31,2015 13. U.S. FUNDS: All prices and payments must be in U.S. dollars. 14. 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, including but not limited to damages and specific performance. 15. CONFORMANCE WITH CONTRACT: No alteration of the terms, conditions, delivery, price, quality, quantities, or specifications of the Contract shall be granted without prior written consent of the Department. Supplies delivered which do not conform to the Contract terms, conditions, and specifications may be rejected and returned at the Assisted Business's expense. 16. VENUE: The Contract is governed by the laws of Montana. The parties agree that any litigation concerning the Contract must be brought in the 18th Judicial District in and for the the County of Gallatin State of Montana, and each party shall pay its own costs and attorney fees. (Mont. Code Ann. § 18-1-401.) 17. COMPLIANCE WITH LAWS: The Assisted Business must, in performance of work under this Contract, fully comply with all applicable federal, state, and tribal laws, rules, policies, and regulations, concerning, but not limited to, human rights, civil rights, employment law, Affordable Care Act and labor law. The Assisted Business shall promptly refer to the City any credible evidence that a principal, employee, agent, contractor, subcontractor, or other person has submitted any false claim or has committed any criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving funds provided under this Contract. 18. DISABILITY ACCOMMODATIONS: The City does not discriminate on the basis of disability in admission to, access to, or operations of its programs, services, or activities. Individuals, who need aids, alternative document formats, or services for effective communications or other disability-related accommodations in the programs and services offered, are invited to make their needs and preferences known to this office. Interested parties should provide as much advance notice as possible. 19. ASSIGNMENT, TRANSFER AND SUBCONTRACTING: The Assisted Business shall not assign, transfer or subcontract any portion of the Contract without the express written consent of the City and the Montana Department of Commerce. (Mont. Code Ann. § 18-4-141) This provision would include any changes to the Assisted Business' business structure, business name and registration with the Montana Secretary of State. 20. MODIFICATION: The Contract may not be enlarged, modified, amended or altered except upon written agreement signed by all parties to the Contract. 21. 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. 22. SEPARABILITY: A declaration by any court, or any other binding legal source, 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. Category I Elixiter Agreement 6 Form July 31,2015. ail 23. HOLD HARMLESS AND INDEMNIFICATION: The Assisted Business agrees to protect, defend, and save the State of Montana and the City, their 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, arising in favor of the Assisted Business's employees or third parties on account of bodily or personal injuries, death, or damage to property arising out of services performed or omissions of services or in any way resulting from the acts or omissions of the Assisted Business and/or its agents, employees, representatives, assigns, subcontractors, except the sole negligence of the State or the City, under the Contract. 24. 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 Mont. Code Ann. §§ 35-1-1026 and 35-8-1001. 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:lsos.mt.gov. 25. TECHNOLOGY ACCESS FOR BLIND OR VISUALLY IMPAIRED: Assisted Business acknowledges that no State funds may be expended for the purchase of information technology equipment and software for use by employees, program participants, or members of the public unless it provides blind or visually impaired individuals with access, including interactive use of the equipment and services, that is equivalent to that provided to individuals who are not blind or visually impaired. (Mont. Code Ann. § 18-5-603.) Contact the State of Montana, Department of Administration, Procurement Bureau at (406) 444-2575 for more information concerning non- visual access standards. 26. REFERENCE TO CONTRACT: The Contract number MUST appear on all invoices, packing lists, packages and correspondence pertaining to the Contract. 27. INTEGRATION: The 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 are valid or binding. 4..." Elixiter Andrew Hull, President Category I Elixiter Agreement 7 Form July 31,2015 Carson Taylor for City of Bozeman Commission ATTEST: ,tz,ti4 (3° ° 0;f (\4 2 i 54-52,42").(5 Z) Legal 1' ejW Category I Elixiter Agreement 8 Form July 31,2015