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SERVICES CONTRACT This Agreement is entered into this day of June, 2009, between the City of Missoula, a political subdivision of the State of Montana, herein “City”, with its principal offices located at 435 Ryman Street, Missoula, MT 59802 and the Downtown Business Improvement District of Missoula, , herein “BID”, with its principal place of business at 218 East Main Street, Missoula, MT 59802. For valuable consideration including the mutual promises set forth in this Agreement, the receipt of which is hereby acknowledged, the parties agree as follows: 1. BID Services. BID shall empty and dispose of the waste from twenty-four (24) garbage cans currently owned by the City located in the Downtown Business Improvement District. The location of the garbage cans is set out on Exhibit attached hereto and incorporated by this reference. BID shall assume ownership of the garbage cans on execution of this Agreement and shall be responsible for the maintenance and replacement of the cans. Ownership of the cans by BID shall not relieve the City of its responsibility to pay for the emptying of the cans. Funds to pay for the emptying of the cans shall continue to come from the street maintenance district The garbage cans shall be emptied a minimum of three times per week in the months of April through October and a minimum of two times per week in the months of November through March. BID shall have the discretion to determine the days of the week when the garbage cans are emptied. BID shall empty and dispose of the waste from other garbage cans it may choose to locate in the District at its own expense. 2. Compensation for Services. City shall pay BID the sum of Seventy and 20/100 Dollars ($70.20) per can per month for the months of April through October and Forty-Six and 50/100 Dollars ($46.50) per can per month for the months of November through March. The payment for the months of April through October shall be One Thousand Six Hundred Eighty-Four and 80/100 Dollars ($1,684.80). The payment for the months of November through March shall be One Thousand One Hundred Sixteen and No/100 Dollars ($1,116.00). Payment shall be pro-rated for any month where partial services are provided. BID shall issue an invoice to City within ten (10) days of the beginning of each month in which services are provided. City shall pay the invoice within twenty (20) days of issuance of the invoice. The payment for services shall increase by three percent each year on the 1st day of July of each year. 3. Term. This Agreement shall commence on the 1st day of August, 2009 and end on the 31st day of July, 2010. The City may, at City’s option, extend the terms of this Agreement for one-year terms for eight annual terms beginning with May 1, 2010 and extending through April 30, 2018. This Agreement shall be deemed extended unless the City gives notice of termination at least thirty (30) days prior to the end of any one year term. ---PAGE BREAK--- 4. Termination/Amendment of Agreement. Either party may terminate this Agreement with or without cause upon thirty (30) days written notice to the other party. The agreement may be amended if agreed to by both parties in writing. 5. Default. The occurrence of the following shall constitute a default by the parties: A. Failure to perform any provisions of this Agreement if the failure to perform is not cured within thirty (30) days after notice has been given by the non- defaulting party to the defaulting party. If the default cannot be reasonably be cured within thirty (30) days, the defaulting party shall not be in default of this Agreement if the defaulting party commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. Notices given under this paragraph shall specify the alleged default and the applicable agreement provisions, and shall demand performance of this Agreement. The non-defaulting party may terminate the Agreement at the end of a thirty (30) day period if the default is not cured or in the process of being cured as set out above. 6. Waiver of Covenants. No delay or omission in the exercise of any right or remedy of either party on any default by the other party shall impair such right or remedy or be construed as a waiver. 7. Indemnification. The BID shall indemnify the City against all liabilities and expenses incurred by the City as a result of any failure of the BID to perform any covenant required to be performed by the BID hereunder. The City shall indemnify the BID against all liabilities and expenses incurred by the BID as a result of any failure of the City to perform any covenant required to be performed by the City hereunder. 8. Rules, Regulations & Ordinances. BID shall comply with federal, state, county and municipal rules, regulation and ordinance which may be applicable to its operations. Said laws include, but are not limited to, the equal employment opportunity laws, the Fair Labor Standards Act, and Occupational Safety and Health Administration (OSHA). Any violation of applicable law shall constitute a breach of this Agreement and BID shall hold the City harmless from any and all liability arising out of, or in connection with, said violations including any attorney’s fees and costs incurred by the city as a result of such violation. 9. Nondiscrimination. All conduct of the BID in administering its duties under this Agreement shall be performed without discrimination based upon race, color, religion, creed, political bias, sex, age, marital status, familial status, physical or mental disability, sexual orientation or national origin. ---PAGE BREAK--- 10. Notice. Any notice, communications or report required or permitted under this Agreement shall be in writing and may be delivered by mail, e-mail or in person. Notices, communications or reports transmitted by mail shall be deemed delivered when deposited with the United States Postal Service, certified, return receipt requested. Failure to accept mailed notice shall not negate the effectiveness of the notice. Notices, communications or reports transmitted by e-mail shall be deemed delivered when reader confirmation is received. Notices, communications or reports transmitted by personal delivery shall be deemed delivered when hand delivered to the address of the party. The addresses for delivery of notices, communications or reports are as follows: CITY REPRESENTATIVE BID REPRESENTATIVE Bruce Bender, CAO Rod Austin Mayor's Office 218 East Main Street, Suite C 435 Ryman Street Missoula, MT 59802 Missoula, MT 59802 [EMAIL REDACTED] [EMAIL REDACTED] In the event a party changes its address, the party shall notify the other party. Any notice delivered to a previous address before notice of a change of address shall be fully effective. 11. Relationship of City and BID. Nothing in this Agreement shall render the BID in any way a partner, joint venturer or associate in any way with the City. The BID will perform its duties under this Agreement as an independent contractor. 12. Assignment. Neither party may assign its obligations under this Agreement without the written consent of the other party. 13. Attorney Fees: In the event suit is brought to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to costs of suit and any appeal thereon, including reasonable attorney fees. 14. Jurisdiction: This Agreement shall be interpreted under the laws of the State of Montana. 15. Other documents: The parties agree to execute such other documents as are necessary to give this Agreement full force and effect. 16. Evidence Of Workers Compensation Coverage The BID hereby certifies that its contractors and employees are covered by a workers' compensation insurance program with either the State of Montana, a private insurance carrier, or an approved self-insurance plan in accordance with Montana State law and that the City has no liability for BID's worker's compensation insurance or claims or that the BID and or its contractors have received a waiver of such coverage from the State of Montana. ---PAGE BREAK--- 17. Access To Records. The City and BID shall keep and maintain accounting documentation to support all charges. All such documentation shall be available to the City and BID for inspection, copying, audit, and examination during regular business hours. 18. Specific Performance. The parties shall be entitled to the remedy of specific performance to enforce the terms of this Agreement. 193 Amendments. The parties may enter into written amendments to this Agreement mutually agreed to by both parties. Downtown Business City of Missoula Improvement District of Missoula By: By: Tim France, President John Engen, Mayor Attest: Martha L. Rehbein, City Clerk