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HomeMy WebLinkAboutStaff Report 08/09 12/03/2001r-E o 3 20x5 a CITE' OF PETALUMA, CALIFORNi c 0 3 2009 MEMORANDUM City Attorney's Offlee, 11 English Street, Petaluma, CA 94932 (707) 778-4362 Far (707) 778-4420 E-mail. utrornej�q;tipetulumaeauc DATE: December 3, 2001 TO: Mayor and Members of the Petaluma City Council FROM: Clare M. Gibson SUBJECT: Tow Service Agreement, Revision to Fourth Amendment On Friday, November 30, after the copies of the Fourth Amendment to the Tow Service Agreement had already been distributed to the Council, one of the tow operators called the Police Department because one paragraph in the Fourth Amendment did not appear to completely and accurately set forth the terms that the tow operators and representatives of the Police Department had agreed upon. The Police Department agreed, and requested that this paragraph be revised. Accordingly, Section 5.c on pages 2-3 of the Fourth Amendment (amending Section II.C. of Addendum B, on "Assessment Fee Amount") was revised to more clearly set forth the agreed upon terms. First, it was clarified that the Assessment Fee applies only to vehicles stored pursuant to Addendum B (which concerns 30 -day impounds and forfeitures). Second, it was clarified that the alternative method for calculating the Assessment Fee applies when the tow operator accepts title in lieu of storage fees as well as when the tow operator a&qees to accept reduced fees based on economic hardship. A copy of the revised Fourth Amendment is attached for your review. The tow operators have agreed to sign the Fourth Amendment, as revised, this afternoon. CMG/taz cc: Fred Stouder Chief Patrick Parks THIS DOCUMENT AND THE CONTENTS HEREIN ARE CONFIDENTIAL AND PRIVILEGED BY THE ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES. THIS DOCUMENT OR THE CONTENTS HEREIN SHALL NOT BE DISCLOSED. I:\WPD\mnnw_sr\052-Pctaluma\023-Municipal\Mise\Memos\TSA, 4th Amend -CMG to Council.wpd Pctalumn Index SR -01 g 1 11 FOURTH AMENDMENT OF TOW SERVICE AGREEMENT i' INCLUDING ADDENDA A AND B 1. This Fourth Amendment to the Tow Service Agreement including Addenda A and B ("this Amendment") is made as of December 3, 2001. between the City of Petaluma and Betsy Kunzman-Mueller, dba American Tow Service ("American Tow Service"). 2. The City of Petahuna and American Tow Service entered into a Tow Service Agreement, including Addenda A and B, for participation on the City of Petalu ma's rotation tow list(s), effective November 15, 2000 (the Original Agreement), and subsequently amended on June 1, 2001 ("First Amendment"), on Judy 1, 2001 ("Second Amendment") and on November 14, 2001 ("Third Amendment"). The Original Agreement, First Amendment, Second Amendment and Third Amendment are incorporated by reference herein (collectively, the "Second Amended Agreement"), and attached hereto as Exhibit A, B, C and D, respectively. 3. The purpose of this Amendment is to improve the cost-effectiveness of the Third Amended Agreement for both parties and to extend the term of the Third Amended Agreement to June 30, 2002. 4. Section IILE of Addendum B provides that no modification of the Tow Service Agreement is effective unless signed in writing by the parties. 5. The parties wish to amend the Third Amended Agreement as set forth herein: a. Section LF of Addendum B provides as follows: Disposition of Impounded/Forfeited Vehicles When city determines that all paperwork has been completed for a lien sale or sale -in -lieu of lien sale ("sale) for any particular impounded/forfeited vehicle or vehicles, City shall so notify Contractor, and unless such notice directs Contractor otherwise, contractor shall then promptly deliver such vehicles) to the auction hoose designated by City under Paragraph VI below. The parties wish to delete Section I.F in its entirety. b. Section LG of Addendum B currently provides as follows: Retention of Impounded Vehicles Notwithstanding paragraph F above, Contractor may select no more than two (2) vehicles per month out of those vehicles impounded under Vehicle Code Section 14602.6, for a maximum of 24 vehicles per year to withhold from the sale procedure set forth below upon payment to the City of the administrative tow fee authorized under Section 22850.5CVC for each such vehicle withheld from the sale procedure. Notwithstanding the above, Contractor may dispose of any vehicle agreed by City to be a low - value vehicle as described in Section 22851.6CVC through a dismantler or scrap iron processor. The parties wish to delete Section I.G in its entirety. C. Section ILC of Addendum B currently provides as follows: Assessment Fee Amount The Assessment Fee shall be equal to thirty-three and a third (33 1/3) percent of gross income charged by the Contractor for vehicle storage after the fifth day of storage. Gross income includes all revenues collected from persons or companies for vehicle storage per Section 14602.6 and 14607.6 of the California Vehicle Code. The parties wish to amend Section II.0 by deleting the current text and amending Section ILC to provide as follows: Assessment Fee Arnount The Assessment Fee shall be thirty-three and one-third (33 1/3) percent of vehicle storage fee collected by the Contractor for each vehicle stored pursuant to this Addendurn B, excluding the fees collected for the first five (5) days of storage. Notwithstanding any other provision of this Agreement, the Contractor may elect to reduce the total amount it collects for the tow fee, lien processing fee and storage fee for a vehicle based on economic hardship to the registered owner. In the event the amount due for storage fees exceeds the value of the imporuided vehicle, the Contractor may, at the request of the registered owner, elect to accept transfer of title of the vehicle in lieu of payment of storage fees. If a Contractor elects to reduce the amount of storage fees it collects from a registered owner, or to accept transfer of title of a low value vehicle in lieu of full payment of accrued storage fees, the Assessment Fee shall be thirty-three and one-third (33 1/3) percent of the amount collected after deducting the Contractor's tow charge and a lien processing fee of $35. Contractor is responsible for timely providing the City with information regarding the amount of storage fees collected and regarding the disposition of impounded vehicles, including the amomit of lien sale if ( applicable, on a form to be provided by the City. d. Section II.D of Addendum B currently provides as follows: Assessment Fee Collection All fees shall be collected by the City of Petaluma prior to City's issuance of a Vehicle Release Form. The tow fee and the storage fee (less the Assessment Fee retained by the City of Petaluma) shall be remitted to contractor monthly. Contractor acknowledges that all fees due Contractor may not be collected by City under the procedures agreed to herein for various reasons, including but not limited to those circumstances where owners of towed vehicles do not seek release of their vehicles, an ad judicatory [sic] body refuses to order the payment required hereunder, or the sale price of an auctioned vehicle does not exceed the total amount of the lien. Acknowledging these facts Contractor waives any claim against City for any shortfall in moneys remitted to contractor caused thereby. The parties wish to amend Section ILD of Addendunn B by deleting the current text and by amending Section ILD to provide as follows: Assessment Fee Collection The City will bill Contractor for the Assessment Fee due to the City from the Contractor pursuant to Section ILC of this Agreement. The Contractor shall remit the fees due to the City within thirty (30) days of billing. Any dispute concerning the billed amount shall be brought to the attention of the Traffic Supervisor immediately. e. Section ILE of Addendum B currently provides as follows: Disbursement of Fees Fees collected under this agreement will be payable, and disbursed, in the following order: 1. Contractor - Tow charge and first five (5) days of storage 2. City - Administrative Tow Fee (Per CVC 22850.5) 3. City - Lien Sale Processing Fee 4. The remaining balance, if any, will be disbursed between the City and Contractor at the ratio of 2/3 to Contractor, and 1/3 to City. 3 The parties wish to amend Section II.E of Addendtun B by deleting the current text and by amending Section ILE to provide as follows: Statutory Notices and Documentation The Contractor shall be responsible for properly completing all notices and documentation required by law for impounded vehicles. The Contractor shall also be responsible for disposition of any unclaimed vehicles through lien sale, auction, or release to an auto dismantler in accordance with all applicable requirements of State law. F. The original Agreement provided at page 56, and at page 5 of Addendum B, that the term of the original Agreement expires on June 30, 2001. The First Amendment extended the term of the original Agreement from Jime 30, 2001 to November 14, 2001. The Third Amendment extended the term of the Second Amended Agreement from November 14, 2001 to December 3, 2001. The parties wish to amend the Third Amended Agreement by extending the tenor of the Third Amended Agreement from December 3, 2001 to June 30, 2002. 6. All provisions of the Third Amended Agreement, except as modified by this Amendment, shall remain in full force and effect and are reaffirmed. Other than as stated in this Amendment, this Amendment shall not operate as a waiver of any condition or obligation imposed on the parties under the Third Amended Agreement. 7. In the event of any conflict, inconsistency or incongruity between any provision of this Amenchment and any provision of the Third Amended Agreement, the provisions of this Amendment shall govern and control. 8. This Amendment, together with the Third Amended Agreement, constitute the entire agreement between the parties to the Third Amended Agreement pertaining to the subject matter of this Amendment, and any and all other written or oral agreements existing between the parties before the date of this Amendment with respect to the subject matter of this Amendment are expressly canceled. NOW, THEREFORE, in consideration of the mutual obligations in the Third Amended Agreement, the parties to this Arnendrnent agree as follows: The tenors of the Third Amended Agreement shall be amended as set forth herein and the tern of the Third Amended Agreement shall be extended to June 30, 2002. 4 This Amendment shall be effective as of December 3, 2001. CITY OF PETALUMA AMERICAN TOW SERVICE By Fred Stouder, City Manager Approved as to Form: Clare M. Gibson, Assistant City Attorney FOURTH AMENDMENT OF TOW SERVICE AGREEMENT ( INCLUDING ADDENDA A AND B 1. This Fourth Amendment to the Tow Service Agreement including Addenda A and B ("flus Amendment") is made as of December 3, 2001, between the City of Petaluma and Dion's Downtown Autobody, LLC. 2. The City of Petaluma and Dion's Downtown Autobody, LLC, entered into a Tow Service A -cement, including Addenda A and B, for participation on the City of Petaluma's rotation tow list(s), effective November 15, 2000 (the Original Agreement), and subsequently amended on .Tune 1, 2001 ("First Amendment"), on July 1, 2001 ("Second Amendment") and on November 14, 2001 ("Third Amendment"). The Original Agreement, First Amendment, Second Amendment and Third Amendment are incorporated by reference herein (collectively, the "Second Amended Agreement"), and attached hereto as Exhibit A, B, C and D, respectively. 3. The purpose of this Amendment is to improve the cost-effectiveness of the Third Amended Agreement for both parties and to extend the tenn of the Third Amended Agreement to June 30, 2002. 4. Section III.E of Addendum B provides that no modification of the Tow Service Agreement is effective unless signed in writing by the parties. 5. The parties wish to amend the Third Amended Agreement as set forth herein: a. Section LF of Addendum B provides as follows: Disposition of Impounded/Forfeited Vehicles When city determines that all paperwork has been completed for a lien sale or sale -in -lieu of lien sale ("sale) for any particular impounded/forfeited vehicle or vehicles, City shall so notify Contractor, and unless such notice directs Contractor otherwise, contractor shall then promptly deliver such vehicle(s) to the auction house designated by City under Paragraph VI below. The parties wish to delete Section LF in its entirety. b. Section LG of Addendum B currently provides as follows: Retention of Impounded Vehicles Notwithstanding paragraph F above, Contractor may select no more than two (2) vehicles per month out of those vehicles impounded under Vehicle Code Section 14602.6, for a maximum of 24 vehicles per year to withhold from the sale procedure set forth below upon payment to the City of the administrative tow fee authorized under Section 22850.5CVC for each such vehicle withheld from the sale procedure. Notwithstanding the above, Contractor may dispose of any vehicle agreed by City to be a low - value vehicle as described in Section 22851.6CVC through a dismantler or scrap iron processor. The parties wish to delete Section I.G in its entirety. C. Section ILC of Addendum B currently provides as follows: Assessment Fee Amount The Assessment Fee shall be equal to thirty-three and a thud (33 15) percent of gross income charged by the Contractor for vehicle storage after the fifth day of storage. Gross income includes all revenues collected from persons or companies for vehicle storage per Section 14602.6 and 14607.6 of the California Vehicle Code. The parties wish to amend Section ILC by deleting the current text and amending Section ILC to provide as follows: Assessment Fee Amount The Assessment Fee shall be thirty-three and one-third (33 1/3) percent of vehicle storage fee collected by the Contractor for each vehicle stored pursuant to this Addendmn B, excluding the fees collected for the first five (5) days of storage. Notwithstanding any other provision of this Agreement, the Contractor may elect to reduce the total amount it collects for the tow fee, lien processing fee and storage fee for a vehicle based on economic hardship to the registered owner. In the event the amount due for storage fees exceeds the value of the impounded vehicle, the Contractor may, at the request of the registered owner, elect to accept transfer of title of the vehicle in lieu of payment of storage fees. If a Contractor elects to reduce the amount of storage fees it collects from a registered owner, or to accept transfer of title of a low value vehicle in lieu of full payment of accrued storage fees, the Assessment Fee shall be thirty-three and one-third (33 1/3) percent of the amount collected after deducting the Contractor's tow charge and a lien processing fee of $35. Contractor is responsible for timely providing the City with information regarding the amount of storage fees collected and regarding the disposition of impounded vehicles, including the amount of lien sale if I applicable, on a form to be provided by the City. d. Section ILD of Addendum B currently provides as follows: Assessment Fee Collection All fees shall be collected by the City of Petaluma prior to City's issuance of a Vehicle Release Form. The tow fee and the storage fee (less the Assessment Fee retained by the City of Petaluma) shall be remitted to contractor monthly. Contractor acknowledges that all fees due Contractor may not be collected by City under the procedures agreed to herein for various reasons, including but not limited to those circumstances where owners of towed vehicles do not seek release of their vehicles, an ad judicatory [sic] body refuses to order the payment required hereunder, or the sale price of an auctioned vehicle does not exceed the total amount of the lien. Acknowledging these facts Contractor waives any claim against City for any shortfall in moneys remitted to contractor caused thereby. The parties wish to aimend Section ILD of Addendum B by deleting the current text and by amending Section ILD to provide as follows: Assessment Fee Collection The City will bill Contractor for the Assessment Fee due to the City from the Contractor pursuant to Section ILC of this Agreement. The Contractor shall remit the fees due to the City within thirty (30) days of billing. Any dispute concerning the billed aimouit shall be brought to the attention of the Traffic Supervisor immediately. e. Section ILB of Addendum B currently provides as follows: Disbursement of Fees Fees collected under this agreement will be payable, and disbursed, in the following order: 1. Contractor - Tow charge and first five (5) days of storage 2. City - Administrative Tow Fee (Per CVC 22850.5) 3. City - Lien Sale Processing Fee 4. The remaining balance, if any, will be disbursed between the City and Contractor at the ratio of 2/3 to Contractor, and 1/3 to City. 3 The parties wish to amend Section ILE of Addendum B by deleting the current text and by amending Section ILE to provide as follows: Statutory Notices and Documentation The Contractor shall be responsible for properly completing all notices and documentation required by law for impounded vehicles. The Contractor shall also be responsible for disposition of any unclaimed vehicles through lien sale, auction, or release to an auto dismantler in accordance with all applicable requirements of State law. f. The original Agreement provided at page 56, and at page 5 of Addendtun B, that the tens of the original Agreement expires on June 30, 2001. The First Amendment extended the term of the original Agreement from June 30, 2001 to November 14, 2001. The Third Amendment extended the term of the Second Amended Agreement from November 14, 2001 to December 3.2001. The parties wish to amend the Third Amended Agreement by extending the term of the Third Amended Agreement from December 3, 2001 to June 30, 2002. 6. All provisions of the Third Amended Agreement, except as modified by this Amendment, shall remain in full force and effect and are reaffirmed. Other than as stated in this Amendment, this Amendment shall not operate as a waiver of any condition or obligation imposed on the parties under the Third Amended Agreement. 7. In the event of any conflict, inconsistency or incongruity between any provision of this Amendment and any provision of the Third Amended Agreement, the provisions of this Amendment shall govern and control. 3. This Amendment, together with the Third Amended Agreement, constitute the entire agreement between the parties to the Third Amended Agreement pertaining to the subject matter of this Amendment, and any and all other written or oral agreements existing between the parties before the date of this Amendment with respect to the subject matter of this Amendment are expressly canceled. NOW, THEREFORE, in consideration of the mutual obligations in the Third Amended Agreement, the parties to this Amendment agree as follows: The ternis of the Third Amended Agreement shall be amended as set forth herein and the teen of the Third Amended Agreement shall be extended to Jrme 30, 2002. This Amendment shall be effective as of December 3, 2001. CITY OF PETALUMA DION'S DOWNTOWN AUTOBODY, LLC By Fred Stouder, City Manager Approved as to Form: Clare M. Gibson, Assistant City Attorney