Attachment 4 Draft Contract# 2027-UPD-01390.pdf

Vehicle Towing Service

2027-UPD-01390

THIS CONTRACT is entered into between Montana State University, (Department: University Police), herein referred to as "University”, and [[ Name (Primary Second Party) ]], hereinafter referred to as the "Contractor".

Contractor Information:

Name: [[ Name (Primary Second Party) ]] Address: [[ Street Line 1 (Primary Second Party) ]]

[[ City/Town (Primary Second Party) ]], [[ State/Province (Primary Second Party) ]], [[ Postal Code (Primary Second Party) ]] Phone #: [[ Phone Number (Primary Second Party) ]]

MSU Information:

Name: Montana State University Address: 920 Technology Blvd

PO Box 172600 Bozeman, Montana 59717-2600

Phone #: 406-994-5428

1. PURPOSE

The purpose of this Contract is to secure qualified vehicle towing and recovery services to support the timely and lawful removal, transportation, storage, and disposition of vehicles as needed by the University. The contract is intended to ensure responsive service, operational efficiency, public safety, and compliance with all applicable regulatory requirements while providing best value to the University.

2. EFFECTIVE DATE, DURATION, AND RENEWAL

2.1 Contract Term. The contract’s initial term is upon execution, through September 30, 2028, unless terminated earlier as provided in this contract. In no event is this contract binding on the University unless all required University’s authorized representatives have signed it. The legal counsel signature approving legal content of the contract and the procurement director signature approving the form of the contract do not constitute an authorized signature.

2.2 Contract Renewal. University may renew this contract under its then-existing terms and conditions (subject to potential cost adjustments described below in section 3) in one-year intervals, or any interval that is advantageous to University. This contract, including any renewals, may not exceed a total of seven years.

3. COST ADJUSTMENTS

3.1 Cost Increase by Mutual Agreement. After the contract’s initial term and if University agrees to a renewal, the parties may agree upon a cost increase. University is not obligated to agree upon a renewal or a cost increase. Any cost increases must be based on demonstrated industry-wide or regional increases in Contractor's costs. Publications such as the Federal Bureau of Labor Statistics and the Consumer Price Index (CPI) for all Urban Consumers may be used to determine the increased value.

4. SERVICES AND/OR SUPPLIES

Contractor shall provide the University the following: the University on-call, as-needed towing services.

5. WARRANTIES

5.1 Warranty of Services. Contractor warrants that the services provided conform to the contract requirements, including all descriptions, specifications and attachments made a part of this contract.

University’s acceptance of services provided by Contractor shall not relieve Contractor from its obligations under this warranty. In addition to its other remedies under this contract, at law, or in equity, University may, at Contractor's expense, require prompt correction of any services failing to meet Contractor's warranty herein.

Services corrected by Contractor shall be subject to all the provisions of this contract in the manner and to the same extent as services originally furnished.

6. CONSIDERATION/PAYMENT

6.1 Payment Schedule. In consideration of the services to be provided, the University shall pay

Contractor according to the following schedule: TBD

6.2 Withholding of Payment. In addition to its other remedies under this contract, at law, or in equity, University may withhold payments to Contractor if Contractor has breached this contract. Such withholding may not be greater than, in the aggregate, 15% of the total value of the subject statement of work or applicable contract.

6.3 Payment Terms. All payment terms will be computed from the date of acceptance of supplies or services OR receipt of a properly executed invoice, whichever is later. Unless otherwise noted in the solicitation document, the University has 30 days to pay invoices, as allowed by 17-8-242, MCA. Contractor shall provide banking information at the time of contract execution in order to facilitate the University’s electronic funds transfer payments.

6.4 Reference to Contract. Any resultant purchase order number(s) MUST appear on related invoices, packing lists, packages, and correspondence pertaining to the contract if purchase orders are issued.

If a contract or purchase order number is not provided, the University is not obligated to pay the invoice.

6.5 Reserved.

7. COOPERATIVE PURCHASING

Under Montana law, public procurement units, as defined in section 18-4-401, MCA, have the option of participating in cooperative purchasing agreements for the procurement of supplies or services. Therefore, if agreeable to the bidder/offeror, during the term of this contract, other units of the Montana University System may choose to contract for similar goods/services so long as the prices, terms, and conditions are equal to or more favorable than those in this contract. However, Montana State University Procurement makes no guarantee of any additional Montana University System participation.

8. RESERVED

9. NON-EXCLUSIVE CONTRACT

The intent of this contract is to provide University departments with an expedited means of procuring supplies and/or services. This contract is for the convenience of University departments and is considered by University Procurement Services to be a "Non-exclusive" use contract. Therefore, agencies may obtain this product/service from sources other than the contract holder(s) as long as they comply with Title 18, MCA, and their delegation agreement. University Procurement Services does not guarantee any usage.

10. RESERVED

11. RESERVED

12. ACCESS AND RETENTION OF RECORDS

12.1 Access to Records. Contractor shall provide the University, State, Legislative Auditor, or their authorized agents access to any records necessary to determine contract compliance. The University may terminate this contract under section 25, without incurring liability, for the Contractor’s refusal to allow access as required by this section. (18-1-118, MCA.)

12.2 Retention Period. Contractor shall create and retain all records supporting the services described in this contract for a period of eight (8) years after either the completion date of this contract or termination of the contract.

13. ASSIGNMENT, TRANSFER, AND SUBCONTRACTING

Contractor may not assign, transfer, or subcontract any portion of this contract without the University's prior written consent. (18-4-141, MCA.) Contractor is responsible to the University for the acts and omissions of all subcontractors or agents and of persons directly or indirectly employed by such subcontractors, and for the acts and omissions of persons employed directly by Contractor. No contractual relationships exist between any subcontractor and the University under this contract.

14. DEFENSE, INDEMNIFICATION / HOLD HARMLESS

Contractor shall defend, indemnify and hold harmless the University, its officials, agents, and employees, while acting within the scope of their duties as such, from and against all claims, demands, causes of action, liabilities, damages, judgments, expenses or fees, including the reasonable cost of defense thereof and attorney fees, arising or awarded in favor of Contractor's or its subcontractor’s employees or agents or third parties for bodily or personal injuries, death, damage to property, or financial or other loss resulting or allegedly resulting in whole or part from (i) the services performed or products provided or (ii) other acts or omissions of Contractor and/or its agents, employees, representatives, assigns, subcontractors, except the sole negligence of the University.

15. RESERVED

16. REQUIRED INSURANCE

16.1 General Requirements. Contractor shall maintain for the duration of this contract, at its cost and expense, insurance against claims for injuries to persons or damages to property, including contractual liability, which may arise from or in connection with the performance of the work by Contractor, agents, employees, representatives, assigns, or subcontractors. This insurance shall cover such claims as may be caused by any negligent act or omission.

16.2 Primary Insurance. Contractor's insurance coverage shall be primary insurance with respect to the University, its officers, officials, employees, and volunteers and shall apply separately to each project or location. Any insurance or self-insurance maintained by the University, its officers, officials, employees, or volunteers shall be excess of Contractor's insurance and shall not contribute with it.

16.3 Specific Requirements for Commercial General Liability. Contractor shall purchase and maintain occurrence coverage with combined single limits for bodily injury, personal injury, and property damage of $1,000,000 per occurrence and $2,000,000 aggregate per year to cover such claims as may be caused by any act, omission, or negligence of Contractor or its officers, agents, representatives, assigns, or subcontractors.

The University, its officers, officials, employees, and volunteers are to be covered and listed as additional insureds via the certificate of insurance under ‘description of operations’ and by endorsement to the policy for liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor, products, and completed operations, and the premises owned, leased, occupied, or used. Reference should be made to same on the COI, but the actual separate endorsement must be provided.

16.4 Specific Requirements for Automobile Liability. Contractor shall purchase and maintain coverage with split limits of $500,000 per person (personal injury), $1,000,000 per accident occurrence (personal injury), and $100,000 per accident occurrence (property damage), OR combined single limits of $1,000,000 per occurrence to cover such claims as may be caused by any act, omission, or negligence of Contractor or its officers, agents, representatives, assigns, or subcontractors.

University, its officers, officials, employees, and volunteers are to be covered and listed as additional insureds via the certificate of insurance under ‘description of operations’ and by endorsement to the policy for automobiles leased, owned, or borrowed by Contractor. Reference should be made to same on the COI, but the actual separate endorsement must be provided.

16.5 Reserved.

16.6 Reserved.

16.7 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be declared to and approved by the University. At the request of the University either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the University, its officers, officials, employees, or volunteers; or (2) at the expense of Contractor, Contractor shall procure a bond guaranteeing payment of losses and related investigations, claims administration, and defense expenses.

16.8 Certificate of Insurance/Endorsements. A certificate of insurance from an insurer with a

Best's rating of no less than A- indicating compliance with the required coverages, has been received by contractsinsurance@montana.edu. Contractor must notify the University immediately of any material change in insurance coverage, such as changes in limits, coverages, change in status of policy, etc. The University reserves the right to require complete copies of insurance policies at all times. This insurance must be valid for the entire contract term and any renewal. Upon expiration and/or renewal, a current Certificate of insurance must be sent to contractsinsurance@montana.edu.

16.9 Reserved.

17. COMPLIANCE WITH WORKERS' COMPENSATION ACT

mailto:contractsinsurance@montana.edu

Contractor shall comply with the provisions of the Montana Workers' Compensation Act while performing work for the State of Montana in accordance with 39-71-401, 39-71-405, and 39-71-417, MCA. Proof of compliance must be in the form of workers' compensation insurance, via actual policy or stated on Certificate of Insurance, an independent contractor's exemption, or documentation of corporate officer status. Neither Contractor nor its employees are University employees. This insurance/exemption must be valid for the entire contract term and any renewal. Upon expiration, a renewal document must be sent to contractsinsurance@montana.edu.

18. COMPLIANCE WITH LAWS

Contractor shall, in performance of work under this Contract, fully comply with all applicable federal, state, or local laws, rules, regulations, and executive orders including but not limited to, the Montana Human Rights Act, the Equal Pay Act of 1963, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Contractor is the employer for the purpose of providing healthcare benefits and paying any applicable penalties, fees and taxes under the Patient Protection and Affordable Care Act [P.l. 111-148, 124 Stat. 119]. Any subletting or subcontracting by Contractor subjects’ subcontractors to the same provisions. In accordance with 49-3-207, MCA, and Executive Order No. 04-2016 Contractor agrees that the hiring of persons to perform this Contract will be made on the basis of merit and qualifications and there will be no discrimination based on race, color, sex, pregnancy, childbirth or medical conditions related to pregnancy or childbirth, political or religious affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual orientation, gender identity or expression, national origin, ancestry, age, disability, military service or veteran status, or marital status by the persons performing this Contract.

19. NONDISCRIMINATION AGAINST FIREARMS ENTITIES/TRADE ASSOCIATIONS

Contractor shall not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association, and Contractor shall not discriminate during the term of the contract against a firearm entity or firearm trade association. This section shall be construed in accordance with 30-20-301, MCA.

20. DISABILITY ACCOMMODATIONS

The University 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.

21. TECHNOLOGY ACCESS FOR BLIND OR VISUALLY IMPAIRED

Contractor 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. (18-5-603, MCA.) Contact the State Procurement Bureau at (406) 444-2575 for more information concerning nonvisual access standards.

22. REGISTRATION WITH THE 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 35-1-1026 and 35-8-1001, MCA. 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, call the Office of the Secretary of State at (406) 444-3665, or visit their website at http://sos.mt.gov.

23. RESERVED

24. RESERVED

24.1 Reserved.

25. RESERVED

26. CONTRACT TERMINATION

26.1 Termination for Cause. University may, by written notice to Contractor, immediately terminate this contract in whole or in part for Contractor’s failure to materially perform any of the services, duties, terms or conditions contained in this contract.

26.2 Termination for Cause with Notice to Cure Requirement. Contractor may terminate this contract for the University’s failure to perform any of its duties under this contract after giving the University written notice of the failure. The written notice must demand performance of the stated failure within a specified period of time of not less than 30 days. If the demanded performance is not completed within the specified period, the termination is effective at the end of the specified period.

26.3 Reduction of Funding. The University must by law terminate this contract if funds are not appropriated or otherwise made available to support the University’s continuation of performance of this contract in a subsequent fiscal period. (18-4-313(4), MCA.) If state or federal government funds are not appropriated or otherwise made available through the state budgeting process to support continued performance of this contract (whether at an initial contract payment level or any contract increases to that initial level) in subsequent fiscal periods, the University shall terminate this contract as required by law. The University shall provide Contractor the date the University’s termination shall take effect. The University shall not be liable to Contractor for any payment that would have been payable had the contract not been terminated under this provision. As stated above, the University shall be liable to Contractor only for the payment, or prorated portion of that payment, owed to Contractor up to the date the University’s termination takes effect.

This is Contractor's sole remedy. The University shall not be liable to Contractor for any other payments or damages arising from termination under this section, including but not limited to general, special, or consequential damages such as lost profits or revenues.

26.4 Public Health Situation. Either party may terminate this Agreement with prior written notice if the party determines a cancellation is in the best interest of public health or because any public health situation or government order, guideline, or action related to public health makes performance of the Agreement impossible, reasonably impracticable, or frustrates the purpose of the Agreement.

27. EVENT OF BREACH – REMEDIES

http://sos.mt.gov/

27.1 Event of Breach by Contractor. Any one or more of the following Contractor acts or omissions constitute an event of material breach under this contract:

• products or services furnished fail to conform to any requirement;

• failure to submit any report required by this contract;

• failure to perform any of the other terms and conditions of this contract, including but not limited to beginning work under this contract without prior University approval and breaching section Technical or Contractual Problems obligations; or

• voluntary or involuntary bankruptcy or receivership.

27.2 Event of Breach by University. The University’s failure to perform any material terms or conditions of this contract constitutes an event of breach.

27.3 Actions in Event of Breach.

Upon the Contractor’s material breach, the University may:

• terminate this contract under the Contract Termination section; or

• treat this contract as materially breached and pursue any of its remedies under this contract, at law, or in equity.

Upon the University’s material breach, the Contractor may:

• terminate this contract after giving the University written notice of the stated failure. The written notice must demand performance of the stated failure within a specified period of time of not less than 30 days. If the demanded performance is not completed within the specified period, the termination is effective at the end of the specified period; or

• treat this contract as materially breached and, except as the remedy is limited in this contract, pursue any of its remedies under this contract, at law, or in equity.

28. FORCE MAJEURE

Neither party is responsible for failure to fulfill its obligations due to causes beyond its reasonable control that make the contract impossible, impracticable, or frustrate the purpose of the contract, including but not limited to: acts or omissions of government or military authority; acts of God; government or court orders, guidelines, regulations, or actions related to communicable diseases, epidemics, pandemics, or other dangers to public health; materials shortages; transportation delays; fires; floods; labor disturbances; riots; wars; terrorist acts; or any other causes, directly or indirectly beyond the reasonable control of the nonperforming party, so long as such party uses its best efforts to remedy such failure or delays if reasonable to do so. A party affected by a force majeure condition shall provide written notice to the other party within a reasonable time of the onset of the condition. A force majeure condition excuses a party’s obligations under this contract, unless the parties mutually agree that the obligation is merely suspended because of the condition.

29. WAIVER OF BREACH

Either party’s failure to enforce any contract provisions after any event of breach is not a waiver of its right to enforce the provisions and exercise appropriate remedies if the breach occurs again. Neither party may assert the defense of waiver in these situations.

30. CONFORMANCE WITH CONTRACT

No alteration of the terms, conditions, delivery, price, quality, quantities, or specifications of the contract shall be granted without MSU Procurement Services prior written consent. Product or services provided that do not conform to the contract terms, conditions, and specifications may be rejected and returned at Contractor’s expense.

31. LIAISONS AND SERVICE OF NOTICES

31.1 Contract Liaisons. All project management and coordination on the University's behalf must be through a single point of contact designated as the University's liaison. Contractor shall designate a liaison that will provide the single point of contact for management and coordination of Contractor's work. All work performed under this contract must be coordinated between the University's liaison and Contractor's liaison.

Kristine Mashaw is the University’s liaison.

102 Huffman Building Bozeman, MT 59717 406-994-5428 kristine.mashaw@montana.edu

TBD is Contractor’s liaison.

TBD

TBD

31.2 Notifications. The University's liaison and Contractor's liaison may be changed by written notice to the other party. Written notices, requests, or complaints must first be directed to the liaison. Notice may be provided by personal service, mail, or facsimile. If notice is provided by personal service or facsimile, the notice is effective upon receipt; if notice is provided by mail, the notice is effective within three business days of mailing. A signed and dated acknowledgement of the notice is required of both parties.

31.3 Identification/Substitution of Personnel. The personnel identified or described in

Contractor's proposal shall perform the services provided for the University under this contract. Contractor agrees that any personnel substituted during the term of this contract must be able to conduct the required work to industry standards and be equally or better qualified than the personnel originally assigned. The University reserves the right to approve Contractor personnel assigned to work under this contract and any changes or substitutions to such personnel. The University's approval of a substitution will not be unreasonably withheld. This approval or disapproval shall not relieve Contractor to perform and be responsible for its obligations under this contract. The University reserves the right to require Contractor personnel replacement. If Contractor personnel become unavailable, Contractor shall provide an equally qualified replacement in time to avoid delays to the work plan.

32. MEETINGS

32.1 Technical or Contractual Problems. Contractor shall meet with the University's personnel, or designated representatives, to resolve technical or contractual problems occurring during the contract term or to discuss the progress made by Contractor and the University in the performance of their respective obligations, at no additional cost to the University. The University may request the meetings as problems arise and will be coordinated by the University. The University shall provide Contractor a minimum of three full working days’ notice of meeting date, time, and location. Face-to-face meetings are desired; however, at Contractor's option and expense, a conference call meeting may be substituted. Contractor’s consistent failure to participate in problem resolution meetings, Contractor missing or rescheduling two consecutive meetings, or Contractor’s failure to make a good faith effort to resolve problems may result in termination of the contract.

mailto:kristine.mashaw@montana.edu

32.2 Progress Meetings. During the term of this contract, the University’s Project Manager shall plan and schedule progress meetings with Contractor to discuss Contractor’s and the University’s progress in the performance of their respective obligations. These progress meetings will include the University Project Manager, the Contractor Project Manager, and any other additional personnel involved in the performance of this contract as required. At each meeting, Contractor shall provide the University with a written status report that identifies any problem or circumstance encountered by Contractor, or of which Contractor gained knowledge during the period since the last such status report, which may prevent Contractor from completing any of its obligations or may generate charges in excess of those previously agreed to by the parties. This may include the failure or inadequacy of the University to perform its obligation under this contract. Contractor shall identify the amount of excess charges, if any, and the cause of any identified problem or circumstance and the steps taken to remedy the same.

32.3 Failure to Notify. If Contractor fails to specify in writing any problem or circumstance that materially affects the costs of its delivery of services or products, including a material breach by the University, about which Contractor knew or reasonably should have known with respect to the period during the term covered by Contractor's status report, Contractor shall not be entitled to rely upon such problem or circumstance as a purported justification for an increase in the price for the agreed upon scope.

32.4 University's Failure or Delay. For a problem or circumstance identified in Contractor's status report in which Contractor claims was the result of the University's failure or delay in discharging any University obligation, the University shall review same and determine if such problem or circumstance was in fact the result of such failure or delay. If the University agrees as to the cause of such problem or circumstance, then the parties shall extend any deadlines or due dates affected thereby and provide for any additional charges by Contractor. This is Contractor’s sole remedy. If the University does not agree as to the cause of such problem or circumstance, the parties shall each attempt to resolve the problem or circumstance in a manner satisfactory to both parties.

33. TRANSITION ASSISTANCE

If this contract is not renewed at the end of this term, if the contract is otherwise terminated before project completion, or if particular work on a project is terminated for any reason, Contractor shall provide transition assistance for a reasonable, mutually agreed period of time after the expiration or termination of this contract or particular work under this contract. The purpose of this assistance is to allow for the expired or terminated portion of the services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such services to the University or its designees. The parties agree that such transition assistance is governed by the terms and conditions of this contract, except for those terms or conditions that do not reasonably apply to such transition assistance. The University shall pay Contractor for any resources utilized in performing such transition assistance at the most contract current rates. If the University terminates a project or this contract for cause, then the University may offset the cost of paying Contractor for the additional resources Contractor utilized in providing transition assistance with any damages the University may have sustained as a result of Contractor’s breach.

34. CHOICE OF LAW AND VENUE

This Contract is governed by the laws of Montana. The parties agree that, in the event of litigation concerning this Contract, venue shall be in the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin. State of Montana and each party shall pay its own costs and attorney fees. (See section 18-1-401, MCA.)

35. TAX EXEMPTION

State of Montana is exempt from Federal Excise Taxes (#81-0302402) except as otherwise provided in the federal Patient Protection and Affordable Care Act [P.l. 111-148, 124 Stat. 119].

36. AUTHORITY

This contract is issued under authority of Title 18, Montana Code Annotated, and the Administrative Rules of Montana, Title 2, chapter 5.

37. SEVERABILITY CLAUSE

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 and materially dependent.

38. SCOPE, ENTIRE AGREEMENT, AND AMENDMENT

38.1 Contract. This contract consists of pages as numbered below and any Attachments as required, Solicitation #[[ Provide the Solicitation Number ]], as amended, and Contractor's response, as amended. In the case of dispute or ambiguity arising between or among the documents, the order of precedence of document interpretation is the same.

38.2 Entire Agreement. These documents are the entire agreement of the parties. They supersede all prior agreements, representations, and understandings. Any amendment or modification must be in a written agreement signed by the parties.

39. WAIVER

The University's waiver of any Contractor obligation or responsibility in a specific situation is not a waiver in a future similar situation or is not a waiver of any other Contractor obligation or responsibility.

40. DEBARMENT

The contractor certifies, by signing this Contract that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (Contract) by any governmental department or agency. If the contractor cannot certify this statement, attach a written explanation for review by the University.

41. EXECUTION

The parties through their authorized agents have executed this contract on the dates set out below.

MONTANA STATE UNIVERSITY [[ NAME (PRIMARY SECOND PARTY) ]]

BY: BY:

Name: Name:

Title:

Date:

Title:

Date:

MSU Legal Counsel Date (Required for purchases over $25,000)

Procurement & Contract Services Date (Required for purchases over $25,000)

Reviewed by: Date:

Name: