2-Agreement - Tow Rotation 1.docx

TOW ROTATION AGREEMENT

THIS AGREEMENT is made this day of ____________________, 20____, by and between West Valley City (hereinafter, the “City”), a municipal corporation of the State of Utah located at 3600 South Constitution Blvd., West Valley City, Utah 84119, and ___________________________ (hereinafter, “Provider”), a ___________________________, located at ___________________________. The City and Provider shall each be referred to individually as a “Party,” and collectively as the “Parties.”

WITNESSETH:

WHEREAS, from time to time, the City requires assistance with vehicle towing and related services; and

WHEREAS, the City issued a request for qualifications (the “RFQ”, attached hereto as Exhibit A) seeking qualified entities to perform said Work; and

WHEREAS, the City has determined that Provider is qualified to perform said Work upon the terms set forth herein.

NOW, THEREFORE, for and in consideration of the mutual covenants made herein, the Parties hereby agree as follows:

AGREEMENT:

1. Term. The initial term of this Agreement shall commence on (DATE) and continue for one year. This Agreement shall automatically renew for five additional one year terms unless otherwise terminated as set forth herein. Beginning thirty days before the expiration of the initial term, the City or Provider may terminate this Agreement for convenience with thirty days’ written notice.

2. General Requirements. Provider shall comply with the following general requirements:

a. Provider shall not share any tow trucks, operators, email addresses, or telephone numbers with any other company.

b. Provider shall comply with all applicable federal, state, and local laws, including but not limited to UDOT, Utah Tax Commission, and E-Verify requirements.

c. Provider shall comply with all requirements set forth in the RFQ.

d. Provider shall maintain and monitor an email address as the primary point of communication with the City. Provider shall reply to all communication as soon as practicable.

e. Provider shall immediately update all information submitted in response to the RFQ when operators, vehicles, or other information change.

f. Provider shall not reject any tow due to the condition of the vehicle.

3. Operations Requirements. Provider shall comply with the following operational requirements:

a. Provider shall follow the direction of City personnel on scene and shall only tow vehicles as directed by City personnel. The direction of personnel on scene shall take precedence over dispatch instructions.

b. Provider shall charge no more than one hour per call and shall arrive on scene within 20 minutes of notification from dispatch, 24 hours a day, seven days a week. A maximum of fifteen additional minutes may be charged for calls outside of 8 AM to 5 PM, Monday through Friday. Provider must obtain approval from the City Towing Coordinator to charge additional time due to exigent circumstances.

c. Operators shall not leave the scene of a tow until all debris, fluids, and absorbent material have been removed as directed by City personnel.

d. Provider shall not accept a dispatch call if Provider is unable or unlikely to comply with the requirements set forth in this Agreement and in the RFQ.

e. All operators shall wear a company shirt or apparel identifying the name of the company and the first name of the operator.

f. All trucks and equipment shall comply with applicable law and pass an annual inspection by the City or a City-approved entity.

g. Provider shall use any app or system designated by the City to manage and track towing services. As of the effective date of this Agreement, the City platform is TowPro. If the City changes to a different app or system, Provider shall adopt the new app or system within 30 days of notification from the City at no charge.

4. Storage Yard Requirements. Provider shall comply with the following requirements concerning storage yards:

a. All storage yards must be located in the City. Vehicles may only be stored outside the City as approved by the Towing Coordinator.

b. All storage yards must be a minimum of 5000 square feet.

c. Yards must be staffed and open Monday through Friday from 8 AM to 5 PM.

d. The yard office must be attached to the yard, less than 350 feet from the storage yard entrance, clearly marked with the name and address of the office, clearly visible from the entrance, and visitors must not be required to cross a major street or intersection to access the office.

e. Payment shall be accepted at the scene or office by cash or major credit or debit card. Provider shall provide 24/7 access to rotation tow vehicles and property contained therein in compliance with state law.

f. Yards shall be maintained in compliance with City ordinances and applicable use approvals and permits.

5. City Tow Requirements. In addition to the requirements set forth elsewhere in this Agreement, Provider shall respond to rotation calls for tows initiated by the City on the following terms:

a. Provider shall charge a flat rate of $65.00 per tow. Provider may charge an additional $3.00 per mile one way for tows outside Salt Lake County.

6. Insurance Requirements. Provider shall comply with the following insurance requirements:

a. Provider shall maintain coverage as provided by Utah administrative rule, including but not limited to the following:

i. Tow Truck Motor Carriers performing emergency moves shall maintain liability insurance coverage of at least $750,000 per occurrence. Tow Truck Motor Carriers performing non-emergency moves shall maintain liability insurance coverage of at least $1,000,000 per occurrence.

ii. All Tow Truck Motor Carriers performing consent or non-consent tows are required to obtain a MCS-90 endorsement for environmental restorations as required in 49 CFR Part 387- Minimum Levels of Financial Responsibilities for Motor Carriers.

iii. Evidence of required insurance shall be maintained at the principal place of business and made available to the department and/or Investigator upon request and prior to issuance of the Tow Truck Motor Carrier certification.

iv. A certificate of workers’ compensation insurance in the amount required by law. Provider shall not waive workers’ compensation coverage.

b. Provider shall submit a certificate of insurance with West Valley City as the certificate holder and naming West Valley City as an additional named insured.

c. Provider shall not allow insurance to lapse and shall update the certificate of insurance if the Provider’s carrier changes.

7. Removal from Tow Rotation. The City shall notify Provider of any suspension or removal from the tow rotation. Provider may be suspended or removed from the tow rotation and this Agreement terminated for any of the following reasons:

a. Violation of any term of this Agreement, including but not limited to the requirements of the RFQ;

b. Suspension or removal from another tow rotation in Utah; or

c. Violation of any applicable federal, state, or local law by Provider or Provider’s operators, agents, employees, and/or assigns relating to the services provided under this Agreement.

8. Appeal. Provider may appeal a suspension or removal by emailing towing.appeals@wvc-ut.gov within three days of the suspension or removal. It is Provider’s burden to demonstrate that no reason for suspension or termination exists pursuant to Section 7 above. The Towing Coordinator shall not be the individual making the City’s decision on the appeal.

9. Relationship of the Parties. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the Parties. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties hereto, constitute any Party the agent of another Party, nor authorize any Party to make or enter into any commitments for or on behalf of any other Party. It is understood and agreed that Provider is an independent Provider, and that the officers and employees of Provider shall not be employees, officers, or agents of the City; nor shall they represent themselves to be City employees; nor shall they be entitled, as a result of the execution of this Agreement, to any benefits or protections that would otherwise be available to City employees.

10. Conflict of Interest. Provider warrants that no City employee, official, or agent has been retained by Provider to solicit or secure this Agreement upon an agreement or understanding to be or to become an officer, agent, or employee of Provider, or to receive a commission, percentage, brokerage, contingent fee, or any other form of compensation.

11. Indemnification. To the fullest extent permitted by law, Provider agrees to indemnify, defend, and hold the City harmless from and against any and all claims, losses, liabilities, costs, lawsuits, damages, and expenses, including court costs and attorney’s fees, by reason of any claim and/or liability imposed, claimed, and/or threatened against the City for damages because of bodily injury, death, and/or property damages or loss (including, without limitation, tangible or intangible property or rights or economic loss, wherever occurring) arising out of, or in consequence of, the performance of the Provider’s services under this Agreement, to the extent that such bodily injuries, death, and/or property damages or loss (including, without limitation, tangible or intangible property or rights or economic loss, wherever occurring) are attributable to the negligence of Provider and/or Provider’s consultants, subconsultants of any tier, representatives, servants, agents, employees, and/or assigns. As used in this section, the City shall also refer to the consultants, officers, agents, assigns, volunteers, and employees of the City. The indemnification required by this Section shall not apply to any bodily injuries, death, and/or property damages that are attributable to the sole negligence of the City.

12. Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, and to their respective successors-in-interest. This Agreement is not assignable by any Party.

13. No Third-Party Beneficiaries. The execution, performance, and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the Parties hereto, to any entity or Party other than Contractor and the City.

14. Non-Waiver. Failure on the part of a Party to complain of any action or non-action on the part of the other Parties, no matter how long the same may continue, shall not be deemed to be a waiver by such Party of any of its rights hereunder. The consent or approval by a Party to or of any action of the other Parties requiring such consent or approval shall not be deemed to waive or render unnecessary such consent or approval to or of any subsequent similar act.

15. Attorney’s Fees. In the event of any litigation arising out of this Agreement, the substantially prevailing Party or Parties shall be entitled to recover reasonable costs and expenses of such litigation from the other Party or Parties, including, without limitation, reasonable attorneys’ fees and expenses, whether incurred by in-house counsel or other counsel of record.

16. No Consequential Damages. Notwithstanding any other provision set forth in this Agreement, in no event (including, without limitation, any termination of this Agreement with or without cause) will either Party be liable to the other Party for any indirect, special or consequential damages whatsoever (including, without limitation, lost profits) arising out of or relating to this Agreement or either Party’s performance under this Agreement.

17. Partial Invalidity. If any term or provision of this Agreement or the application thereof to any Party or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to Parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

18. Exhibits/Recitals. All Exhibits to this Agreement and all Recitals are incorporated in this Agreement and made a part of this Agreement as if set forth in full, and are binding upon the Parties to this Agreement.

19. Entire Agreement. This Agreement, including all exhibits attached hereto and all other documents incorporated herein by reference, contains the entire, fully-integrated agreement between the Parties, and no statement, promise, or inducements made by any Party or agents for any Party that are not contained in this written Agreement, shall be binding or valid. This Agreement shall supersede all prior and contemporaneous negotiations, representations and agreements of the Parties with respect to the subject matter thereof.

20. Counterparts/Electronic Signatures. This Agreement may be executed in counterparts, each of which when taken together shall constitute one complete agreement. Electronic signatures shall be acceptable as if originals.

21. Authority. Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of each Party’s obligations hereunder have been duly authorized and that this Agreement is valid and legally binding on the Parties and enforceable in accordance with its terms.

22. Amendment. No amendments, modifications, or alterations of the terms of this Agreement shall be binding unless the same be in writing and duly executed by the Parties.

23. Compliance with Laws/Laws to Apply. The Parties shall comply with all applicable local, state and federal laws, rules, regulations, and other legal requirements while performing under this Agreement. This Agreement shall be construed under and in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any dispute relating to this Agreement shall be heard in the state or federal courts of the State of Utah, and the Parties agree to jurisdiction and venue therein.

24. Time of the Essence. Time is and shall be of the essence of this Agreement and of each term and provision hereof.

25. Captions and Headings. The section headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement.

IN WITNESS WHEREOF, the Parties to this Agreement have executed this Agreement as of the day and year first above written.

WEST VALLEY CITY

Mayor

City Manager

ATTEST:

City Recorder

PROVIDER

By:

Its:

On this ___________ day of ________________________, 20__________, personally appeared before me _____________________________________________ [name of person(s)], whose identity is personally known to me or proved to me on the basis of satisfactory evidence, and who affirmed that he/she is the ___________________________________ [title], of ____________________________ and that this Tow Rotation Agreement was signed by him/her in behalf of said entity by authority of its Articles of Organization or Incorporation or of a Resolution of its Members or Directors, and he/she acknowledged to me that said entity executed the same.

Notary Public

EXHIBIT A

REQUEST FOR QUALIFICATIONS