Attachment C (Sample Contract Form).doc

REQUEST FOR PROPOSAL (RFP) P24003 – Attainable Housing Professional Services

AGENCY SAMPLE CONTRACT FORM

(RFP Attachment C)

(Any suggested edits to this Form must be fully completed and placed under Tab No. 4 of the “hard copy” tabbed proposal submittal.)

ATTAINABLE HOUSING PROFESSIONAL SERVICES AGREEMENT

This is an Agreement for professional services between ______________________________ (hereinafter “Contractor”) and HAB Development Corporation (hereinafter “HAB”).

1. TERM. The term of this Agreement shall commence on __________, 2024 and will terminate December 31, 2034 (“Term”), unless terminated earlier pursuant to Section 4.

2. SCOPE OF SERVICES. Contractor will assist HAB during the Term of this Agreement to develop and establish the Montana Community Reinvestment Plan program in each participating county, acting as the platform integrator for HAB as the Community Reinvestment Organization (CRO) and by providing the services as set forth in Exhibit A hereto, which will include identifying key opportunities in the region (hereafter the “Services”). Contractor represents and warrants that the Services will be conducted in a timely and professional manner in accordance with industry standards and in good faith. Contractor further agrees to devote the number of hours to the Services that are reasonably necessary to fulfill the spirit and purpose of this Agreement. Contractor shall regularly communicate and coordinate with HAB about its activities under this Agreement. Contractor’s primary contact at HAB shall be CEO, Patti Webster for this Agreement.

3. COMPENSATION.

A.

HAB will negotiate such fees with the top-rated RFP proposer.

B.

If HAB requires Contractor to travel outside of the State of Montana in connection with the performance of the services described above, HAB agrees to reimburse Contractor for actual direct expenses incurred on behalf of Contractor in conjunction with such travel, provided that such expenses are approved in writing in advance by HAB. HAB shall not be responsible for any other direct or out-of-pocket expenses incurred by Contractor; provided, however, that the incurrence of any expenses by Contractor shall not modify Contractor’s obligations under Section 8 of this Agreement.

C.

Contractor shall submit no later than the first (1st) day of the succeeding month, an invoice for each calendar month during the Term supported by a statement of the periods of performance and expenses incurred in such form and detail as HAB may require. HAB will not pay for, or reimburse Contractor or its employees or agents for any expense incurred on behalf of a Public Official (including, but not limited to, gifts, entertainment, travel, or other items) unless: (i) such gift is permissible under applicable law, and (ii) Contractor has obtained advance written approval from HAB for that expense. Under no circumstances will HAB reimburse Contractor for any payment, gift, subscription, loan, advance or deposit of money, as well as any contribution of services or facilities, if made in connection with any campaign for election to federal, state or local office, a state or local party committee or other political organization, or any state or local ballot measure (collectively, “Political Contributions”). Contractor shall provide all receipts and a detailed description for any expense incurred on behalf of a Public Official, along with a copy of the advance approval by HAB. Unless disputed, proper invoices shall be paid within thirty (30) days of receipt.

D.

All taxes of every nature and kind, including, without limitation, franchise, net or gross income, license, occupation, or property taxes, shall be the responsibility of Contractor, and HAB shall have no obligation to Contractor therefore.

E.

All payments made hereunder will be made by electronic method only, which includes, but is not limited to, Automated Clearing House (ACH), Domestic Money Transfer (DMT).

F.

Contractor shall maintain accurate and complete records relating to the performance of the Services as reasonably appropriate and as required by law for the longer of the legally required period or three (3) years from the date of the expiration or termination for any reason of this Agreement. Upon reasonable prior notice to Contractor, HAB may, during the Term and for a period of up to three (3) years following the expiration or termination for any reason of this Agreement or such longer period as may be required by applicable law, audit and copy such records.

4. TERMINATION. HAB may terminate this Agreement with any breach by Contractor upon thirty (30) days written notice to Contractor. HAB must demonstrably prove such material breach by substantive, credible evidence. Contractor shall have thirty (30) days to cure such breach such that there is no long-term material harm to HAB. Upon any termination, HAB shall have no liability to Contractor other than to pay amounts due.

5. CONFIDENTIALITY. Contractor agrees to maintain in strict confidence, and exercise reasonable care to protect the confidentiality of, all information disclosed to it by or concerning HAB. Such confidential and proprietary information will be used by Contractor solely in connection with the performance of Services under this Agreement, and will be shared by Contractor with its personnel solely on a “need to know” basis in connection with the performance of services under this Agreement. Contractor shall not deliver any messages to the marketplace or communicate any information on behalf of HAB without HAB’s prior approval. Unless otherwise required by law, without the prior written consent of HAB, Contractor will not disclose to any person (including any individual, corporation, company, partnership or other entity) the existence of this Agreement or any of the terms, conditions or other facts with respect to such Agreement, including the relationship created hereunder. In the event disclosure of any such information is required by law Contractor shall, unless prohibited by law, provide HAB prior notice of such disclosure. Contractor agrees to abide by the terms of the Privacy Addendum attached hereto as Exhibit B and made a part hereof. Nothing contained in this Section 5 shall alter Contractor’s obligations under Exhibit B.

6. CONFLICT OF INTEREST AND TERMS OF EXCLUSIVITY. Contractor represents and warrants that Contractor will become familiar and comply with all applicable conflict of interest statutes and regulations affecting the Services. Contractor will not engage in any activity that could be viewed as a conflict of interest even though it may not be prohibited under any particular law. Contractor represents that neither it nor any of its partners, officers, directors, ultimate beneficial owners, shareholders (excluding for purposes of this section shareholders of less than one percent (1%) of a publicly traded company), managers or employees (or any individual serving in an equivalent role) or such person’s immediate family member are Public Officials, and should Contractor itself become, or become aware of any such person becoming, a Public Official, it shall inform HAB immediately in writing.

7. LOBBYING. Contractor and HAB are aware that the Federal Government, states and certain local jurisdictions have lobby registration and reporting requirements that may be applicable to Contractor’s activities under this Agreement, including but not limited to the Lobbying Disclosure Act of 1995, as amended, and Montana Code Annotated, Title 5, Legislative Branch, Chapter 7, Lobbying; Montana Code Annotated, Title 45, Crimes, Chapter 7, Offenses Against Public Administration, Part 1, Bribery and Corrupt Influence; and Administrative Rules of Montana, Title 44, Secretary of State, Chapter 12, General Policy Lobbyist Disclosure, Sub-Chapters 1 and 2. Contractor represents and warrants that Contractor is familiar and will comply with any and all applicable requirements. Contractor shall also immediately inform HAB if Contractor’s activities performed on behalf of HAB trigger any lobby registration or reporting requirements. Contractor shall also cooperate with HAB to the extent necessary for HAB to comply with any applicable lobby registration and reporting requirements, and shall provide to HAB, upon request, copies of all reports required by law to be filed with any other governmental entity with respect to any activities undertaken by Contractor on behalf of HAB.

8. COMPLIANCE WITH APPLICABLE LAWS.

A.

Contractor represents and warrants that Contractor shall comply with all federal, state and local laws applicable to Contractor’s activities on behalf of HAB, including but not limited to state and local lobbying laws. Contractor is aware that the Federal Government, states, and certain local jurisdictions have laws and regulations restricting or prohibiting Political Contributions and gifts, including but not limited to meals, entertainment, travel, lodging, and anything else of value, given to Public Officials. Therefore, Contractor represents and warrants that Contractor is familiar and will comply with any and all such applicable Political Contribution and gift laws and regulations.

B.

In addition to and without prejudicing any other rights or remedies available to HAB, HAB may (i) terminate this Agreement pursuant to Section 4 and (ii) withhold any amounts payable to Contractor hereunder: (a) in the event of Contractor’s breach of this Section 8, (b) if Contractor is or becomes the subject of an investigation by any governmental regulator or agency regarding any alleged violation of any anti-human trafficking, anti-corruption, or economic sanctions laws, rules or regulations, which is alleged to have occurred in connection with the performance of this Agreement, (c) any governmental regulator or agency determines that has violated anti-human trafficking, anti-bribery, anti-corruption, anti-kickback or economic sanctions laws, rules or regulations, (d) Contractor enters into any consent order or settlement regarding anti-human trafficking, anti-bribery, anti-corruption, anti-kickback or economic sanctions laws, rules or regulations, or (e) HAB determines, in its sole judgment, that Contractor has failed to comply with any undertaking or other requirements contained in any order or deferred prosecution agreement applicable to Contractor regarding anti-human trafficking, anti-bribery, anti-corruption, anti-kickback or economic sanctions laws, rules or regulations.

9. INDEMNITY; INSURANCE.

A.

Contractor shall at all times be deemed to be performing as an independent contractor and not as an agent or employee of HAB and the acts and omissions of Contractor's employees and agents shall be deemed to be those of Contractor. To the extent not precluded by law, Contractor shall indemnify and hold harmless HAB, its affiliates and their respective principals, agents, representatives and employees from and against any and all liability, damages, losses, claims, demands, judgments, costs and expenses of every nature and kind arising from: (i) injury to or death of any person or damage to or destruction of property, arising out of or incidental to or in any way resulting from the acts or omissions, whether negligent or otherwise, of Contractor, its employees or agents in performance under this Agreement; (ii) any claim that Contractor or its personnel or subcontractors are not independent contractors; or (iii) any claim by any personnel of Contractor or personnel of its subcontractors for compensation due to him or her by reason of performing Services under this Agreement or for amounts due for injuries or damages under workmen's compensation or similar acts. Contractor shall not be responsible for any such losses, liabilities, claims, judgments, costs, demands or expenses to the extent caused by the negligence or willful misconduct of HAB, its principals, agents, representatives or employees. In the event a claim is filed against HAB for which Contractor is to be responsible under this provision, HAB will promptly notify Contractor of such claim; provided that failure to provide such notice will not relieve the Contractor of its obligations under this Section 9 except and only to the extent that the Contractor is materially prejudiced by such failure.

B.

Contractor shall, at its sole cost and expense, maintain the following insurance coverage with insurance companies licensed or authorized to do business in the state(s) where operations are performed:

1. Worker’s Compensation with statutory limits, if applicable;

2. Commercial General Liability, with the following minimum limits of liability:

a. $1,000,000 per occurrence limit for Bodily Injury and Property Damage; and

b. $1,000,000 general aggregate;

3. Professional Liability, an original certificate showing Contractor’s professional liability and/or “errors and omissions” coverage with the following minimum limits of liability:

a. $1,000,000 per occurrence; and

b. $1,000,000 general aggregate.

Certificates of Insurance evidencing such insurance shall be furnished to HAB upon HAB’s request. HAB shall be included as an additional insured with respect to Contractor’s Commercial General Liability policy.

10. NOTICE. All notices from one party to the other shall be in writing and shall be given by addressing the same to the other party at the address or e-mail address set forth below, or at such other address or e-mail address as either may specify in writing to the other in accordance with this Section 10. All notices shall become effective upon receipt.

If to Contractor:

[INSERT]

If to HAB:

[INSERT]

11. INDEPENDENT CONTRACTOR. Contractor and HAB agree that this Agreement does not create an employment relationship between them and that Contractor is and shall remain an independent contractor. Contractor shall be responsible for all tax liabilities relating to all amounts paid to Contractor under this Agreement.

12. NO ASSIGNMENT; NO SUBCONTRACTING. Contractor shall not assign this Agreement or subcontract its rights or responsibilities under this Agreement, in whole or in part, without the prior written consent of HAB.

13. SEVERABILITY. If any term, provision, covenant or condition of this Agreement or any application thereof, should be held by a court of competent jurisdiction to be invalid, void or unenforceable, by any rule of law or public policy, or otherwise, all provisions, covenants, and conditions of this Agreement not held invalid, void or unenforceable, shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby.

14. MERGER CLAUSE; GOVERNING LAW. This Agreement constitutes the entire agreement between the parties hereto and it may not be modified and no provision may be waived except by a subsequent written agreement between the parties hereto. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of Montana (without giving effect to its conflicts of laws principles). HAB AND CONTRACTOR EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER IN CONTRACT, STATUTE, TORT (SUCH AS NEGLIGENCE), OR OTHERWISE) RELATING TO THIS AGREEMENT.

15. Remedies; modification; waiver. No amendment or waiver will be valid unless in writing and signed by both parties. No delay or omission by any party in enforcing any of its rights or remedies hereunder will impair such right or remedy or be deemed to be a waiver thereof.

16. SURVIVAL. Contractor’s representations and warranties herein, as well as any other provisions which by their terms or intent are intended to survive, will survive the termination of this Agreement for any reason.

17. SIGNATURE. Signature of the parties or authorized representatives thereof shall constitute acceptance of the terms of this Agreement.

[INSERT]

HAB Development Corporation By:

By:

Name:

Name: Patti Webster Title:

Title: CEO/Executive Director Date:

Date:

Exhibit A - Statement of Work Contractor shall provide the following Services in Montana during the term of this Agreement, including, but not limited to:

Anticipated General Scope of Services. Contractor will have knowledge of the Montana Community Reinvestment Plan (MCRP) as enacted into law during the 2023 legislative session, such that the Contractor has a clearly defined plan as the platform integrator for the MCRP program on behalf of HAB as the selected Community Reinvestment Organization (CRO). Contractor will use its knowledge and experience in all phases of design, development, and construction or rehabilitation of residential housing units. The firm chosen will have an end-user package for addressing purchase and subsequent resale of any property by the qualified homeowner. Contractor will be responsible for coordinating the fiduciary components of this MCRP program, including developing a lending model or models, establishing mortgage options, or otherwise developing avenues for financing the project buildout or providing introductions to financial options for those qualifying for the program. It is the intent of HAB that this program be self-sustaining within a reasonable period without the need for supplemental funding.

The Contractor shall be responsible for the following:

· Working with HAB to develop and establish the MCRP program in each participating county, acting as the platform integrator for HAB as the CRO and customizing the program components as needed.

· Developing appropriate schedules for compliance with the MCRP program.

· Coordinating work with contractors, employers, realtors, and others to accomplish the work under the MCRP program.

· Submitting appropriate reports and updates to HAB as the MCRP program is implemented in each county for which HAB is the selected CRO.

· Providing the Agency with a full document package for initial implementation of the MCRP program.

· Providing the Agency with a report regarding screening, compliance and selection of qualified applicants for the MCRP program as outlined in HB 819.

· Providing the Agency with options or incentives for local governments to tailor solutions at a regional (local) level.

Regulatory Compliance:

· Providing HAB with a fully developed plan for managing the state’s financial contribution to meet governmental accounting and transparency requirements under CRO statutory standards.

· Provide HAB with a proof of funds in an amount equal to the funds to be deposited from the Montana Community Reinvestment Plan account.

· Provide HAB with a plan that ensures preconstruction, development and construction-related costs are not eligible for reimbursement or otherwise covered by state funds or matching funds as defined by the CRO revolving account restrictions under state law.

· Providing HAB with an example of necessary documentation to meet deed restriction requirements of the CRO program.

Exhibit B - Privacy Addendum

This Privacy Addendum (this “Addendum”) supplements and forms a part of the Consulting Services Agreement, dated ____________, 2024, between HAB Development Corporation (“HAB”) and __________________________ (“Contractor”) (such agreement, together with all attachments and exhibits thereto, including this Addendum, this “Agreement”).

1. Definition of PII

“PII” means information relating to an identified or identifiable natural person that HAB provides to Contractor or that Contractor otherwise acquires from or on behalf of HAB, its affiliates or any of their respective personnel or agents in connection with the provision of services under this Agreement, whether in written, oral, electronic, or other form, and any copies thereof. An identifiable person is a person who can be identified, directly or indirectly, by reference to an identification number or factors specific to his or her physical, physiological, mental, economic, cultural or social identity. Examples of PII include, but are not limited to, the following: account number (bank account, credit card, etc.), address, biometric identifier, license or identification number, date of birth, government identifiers (such as social security numbers), name, personnel number, photograph or video identifiable to an individual, vehicle identifier or serial number, and may also include other information related to an individual that may directly or indirectly identify the individual (e.g. salary, performance rating, purchase history, call history, etc.).

2. Using and Copying PII

Contractor shall use PII only for the specific purpose for which it was provided to Contractor or as otherwise authorized in writing by HAB, and shall only reproduce PII to the extent necessary for these purposes.

3. Protection of PII

Contractor will implement and maintain appropriate administrative, technical, and physical safeguards to (i) ensure the security and confidentiality of PII; (ii) protect against anticipated threats or hazards to the security or integrity of PII; and (iii) protect against unauthorized access to or use of PII. These safeguards shall include, without limitation, a written information security plan, information access controls, systems protections (e.g., intrusion protection), physical security measures and employee training.

4. Disclosure of PII Contractor shall limit access to the PII solely to its permitted subcontractors and those personnel of Contractor who have a need of such access in connection with the performance of the services under this Agreement, and shall not sell, disclose, release or otherwise make available PII to any other party. The disclosure of PII shall be limited to the specific information necessary for such subcontractors and personnel to perform the services under this Agreement. Contractor shall inform its personnel with access to PII of the requirements set forth in this Addendum and shall ensure that such personnel are bound by and comply with such requirements. Contractor will ensure that each subcontractor that has access to PII is bound by and complies with the same obligations as Contractor under this Addendum.

Contractor will not be in violation of its obligations under the immediately preceding paragraph when PII is disclosed by Contractor to the extent legally required by a valid order of a court of competent jurisdiction or administrative agency, or a validly enforceable subpoena; provided that (i) Contractor provides prompt written notice to HAB of any such request or requirement with reasonably sufficient details regarding the request or requirement and the PII that Contractor is contemplating disclosing so that HAB may seek a protective order or other appropriate remedy and (ii) Contractor reasonably cooperates with HAB in its efforts to seek such order or remedy.

5. Security Breach Contractor will notify HAB immediately after Contractor learns of any potential, actual or suspected misappropriation or unauthorized access to, or disclosure or use of, PII or other compromise of the security, confidentiality or integrity of PII (collectively, “Security Breaches”). Contractor will promptly investigate each potential, actual or suspected Security Breach and assist HAB, its affiliates and their respective agents in connection with any investigation that HAB may desire to conduct with respect to such Security Breach. Contractor will take all steps requested by HAB to limit, stop or otherwise remedy any potential, actual or suspected Security Breach.

6. Termination for Breach

Without limiting any other right that HAB may have to terminate this Agreement or any other remedy available to HAB, upon the occurrence of any Security Breach or any breach of Contractor’s obligations under this Addendum, HAB may immediately terminate this Agreement by the delivery of written notice of termination effective as of the date specified in the notice of termination.

7. Disposal or Return of PII Promptly upon the earlier of the completion of the services under this Agreement or the written request of HAB, all PII in any form, in Contractor's possession or under its control shall be i) destroyed in a manner that prevents its recovery or restoration or, ii) if so directed by HAB, returned to HAB without Contractor retaining any actual or recoverable copies thereof, in both instances without charge to HAB. Notwithstanding the immediately preceding sentence, Contractor may retain copies of PII to the extent required by applicable law or regulation; provided that Contractor notifies HAB of the PII to be so retained.

8. Requests to Access and Correct PII

In the event that Contractor receives a request from a third party to access any PII in Contractor’s possession, Contractor will promptly forward a copy of such request to HAB. Except as expressly permitted under Section 4 of this Addendum, Contractor shall not disclose any PII to a third party, whether in response to a request or otherwise.

Upon HAB’s request, Contractor will make PII in its possession available to HAB, or any third party designated in writing by HAB, and will correct PII in Contractor’s possession in accordance with HAB’s written instructions.

9. Cooperation Contractor will provide HAB with information as may be reasonably requested by HAB from time to time with regard to Contractor's compliance with its obligations under this Addendum, including, without limitation, if available and not subject to the attorney-client, work product or any similar privilege, the results of any audits or tests performed on Contractor’s information security program or on any components thereof. Contractor shall permit HAB, or a third party chosen by HAB and reasonably acceptable to Contractor, to audit Contractor’s records, procedures, and privacy, confidentiality and security controls upon reasonable notice and during regular business hours, at Contractor’s offices, for purposes of verifying Contractor’s compliance with this Addendum.

10. Survival

This Addendum shall survive the expiration or termination of this Agreement and thereafter remain in full force and effect for as long as Contractor or any of its subcontractors retains any PII; provided, however, Sections 5, 9 and 10 of this Addendum shall survive indefinitely.

HAB Development Corporation