HomeMy WebLinkAboutResolution 2015-127 N.C.S. 08/03/2015Resolution No. 2015 -127 N.C.S.
of the City of Petaluma, California
RESOLUTION TO APPROVE AN UPDATED AND AMENDED FORM CITY OF
PETALUMA POLICE DEPARTMENT TOW SERVICE FRANCHISE AGREEMENT
WHEREAS, the City has entered into agreements ( "Tow Service Franchise
Agreements ") that grant non - exclusive franchises to provide towing and storage services in the
City of Petaluma ( "City ") as part of the Police Department's towing program; and
WHEREAS, Petaluma Municipal Code Chapter 11.94 provides authority for granting of
non - exclusive tow franchises and execution of Tow Franchise Agreements between the City and
private tow companies operating in the City in accordance with and subject to the requirements
of Chapter 11. 94, California Vehicle Code section 12110, subdivision (b), and sections 46, 51,
and 75 of the Petaluma Charter; and
WHEREAS, Petaluma Municipal Code Section 11.94.020 authorizes the City Manager
to execute form Tow Franchise Agreements; and
WHEREAS, on March 5, 2012, the City Council introduced an ordinance amending
Petaluma Municipal Code section 11.94.040 to permit amendment of the Tow Franchise
Agreement form and the setting of maximum rates which franchisees may charge for tow
services by resolution; and
WHEREAS, in accordance with the Charter of the City of Petaluma, Section 51, on
April 16, 2012, the City Council adopted an ordinance amending Petaluma Municipal Code
section 11.94.040 to permit amendment of the Tow Service Franchise Agreement form; and
WHEREAS, Petaluma Police Department staff are preparing to solicit applications for
award of new tow service non - exclusive franchises in accordance with section 11.94.050 of the
Petaluma Municipal Code;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma
as follows:
1. The City of Petaluma Police Department Tow Service Franchise Agreement attached
hereto as Exhibit A is approved for use as the City's authorized non - exclusive tow
franchise agreement form in accordance with section 11.94.040 of the Petaluma
Municipal Code.
Resolution No. 2015 -127 N.C.S. Page 1
REFERENCE:
AYES:
NOES:
ABSENT:
ABSTAIN
ATTEST:
2. The City Manager is authorized and directed to execute and award future non-
exclusive tow franchises using the City of Petaluma Police Department Tow Service
Franchise Agreement attached hereto as Exhibit A in accordance with Petaluma
Municipal Code section 11.94.020.
3. This resolution shall take effect immediately.
Under the power and authority conferred upon this Council by the Charter of said City.
I hereby certify the foregoing Resolution was introduced and adopted by the loy�ed as to
Council of the City of Petaluma at a Regular meeting on the 3`d day of August, m:
2015, by the following vote:
Albertson, Barrett, Mayor Glass, Healy, King, Vice Mayor Miller
None
Kearney
None
City Clerk
Mayor
Resolution No, 2015 -127 N.C.S. Page 2
Exhibit A
CITY OF PETALUMA POLICE DEPARTMENT
TOW SERVICE FRANCHISE AGREEMENT
This City of Petaluma Police Department Tow Service Franchise Agreement ( "Agreement ") is
entered into, effective as of , 2015, between the CITY OF PETALUMA,
a municipal corporation and a charter city ( "City "), and ,
( "Contractor "), (collectively, the "Parties "). City or Contractor are sometimes referred to herein
as a "Party."
RECITALS
WHEREAS, Contractor has applied to provide towing and storage service in connection with
the City's Rotation Tow Lists;
WHEREAS, Contractor has the necessary expertise, equipment and skill to provide tow services
in response to calls generated from the City's Rotation Tow Lists as set forth in this Agreement;
WHEREAS, the City is authorized to award a franchise for such towing services pursuant to
California Vehicle Code section 12110, as may be amended from time to time, and pursuant to
Section 75 of the City Charter;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
SECTION 1 - DEFINITIONS
"Bundling" means the practice of removing several vehicles from an area, as in the conducting of
a special project or sweep, and storing them as a group, generally near the area they were
removed from, until they can be transported to the Contractor's storage area.
"Communications Center" means the Petaluma Police Department's Communications Center.
"City- generated tows" means the towing of vehicles in response to calls generated from the
Rotation Tow Lists included under Section 2B of this Agreement.
"City Manager" means the City Manager of the City of Petaluma, or his or her designee.
"Class 'A' Tow Truck" means a tow truck as defined in Section 9 of the current version of the
California Highway Patrol ( "CHP ") Tow Service Agreement as it may be subsequently modified
or renumbered ( "CHP Tow Service Agreement" or "CHP 234 "), a copy of which is available for
reference at the Petaluma Police Department.
"Class 'B' Tow Truck" means a tow truck as defined in Section 9 of the CHP Tow Service
Agreement.
Resolution No. 2015 -127 N.C.S. Page 3
"Class 'C' Tow Truck" means a tow truck as defined in Section 9 of the CHP Tow Service
Agreement.
"Class 'D' Tow Truck" means a tow truck as defined in Section 9 of the CHP Tow Service
Agreement.
"Police Department" means the Police Department of the City of Petaluma.
"Police Special Services" means a response to a call generated from the Police Special Services
Rotation Tow List.
"Service Calls" means calls generated from the Regular Rotation Tow List for vehicle assistance,
including lockouts, jump starts, tire changes and fueling.
"Sweeps" means police operations expected to result in a need to tow four (4) cars or more or
special operations for which Contractor will be required to leave the city limits of Petaluma if a
tow is requested.
SECTION 2 — TERM
The term of this Agreement is from
2015, to
2020, inclusive, subject to early termination pursuant to section 6.
SECTION 3 — SCOPE OF SERVICES
A. Contractor agrees to provide, in response to calls generated from the City's
Rotation Tow lists (as set forth herein, in subsection B), towing and storage of
vehicles, and related services as set forth herein. The City places no maximum on
the number of City - generated tows that Contractor may be required to provide in
any time period. There shall be no obligation upon City to provide Contractor
with a minimum number of City - generated tows during any time period.
B. Rotation Tow Lists.
Calls generated from the Police Special Services Rotation Tow List
include, but are not limited to, vehicles impounded for evidence or
criminal investigation, or tow services for City vehicles. Tow services for
City vehicles include, but are not limited to, towing, jump- starts, and flat
tire repair. Contractor will be available for Special Service Rotation calls
24 hours a day, 7 days a week.
2. Calls generated from the Regular Rotation Tow List include, but are not
limited to, storage of vehicles, disabled vehicles, traffic hazards, traffic
collisions, vehicles parked over 72 hours, Service Calls, or other tow
services not covered under any other list. Contractor will be available for
Regular Rotation calls 24 hours a day, 7 days a week.
Resolution No. 2015 -127 N.C.S. Page 4
3. Calls generated from the Abandoned and Junk Vehicle Rotation Tow List
include, but are not limited to, vehicles towed pursuant to California
Vehicle Code section 22669(d). Contractor will be available for
Abandoned and Junk Rotation calls Monday through Friday, 8:00 a.m, to
5:00 p. m., except holidays or under special circumstances.
4. Calls generated from the Serious Traffic Offender Program ( "STOP ")
Vehicle Forfeiture /30 Day Impound Rotation List are limited to vehicles
impounded pursuant to the California Vehicle Code for a 30 -day impound.
Contractor will be available for STOP -30 Day Impound Rotation calls 24
hours a day, 7 days a week.
C. Requests for Service and Response Standards.
Contractor will be notified of a request for rotation tow services via
telephone from the Communications Center. Communications personnel
will attempt telephone contact one time, allowing the phone to ring at
least six (6) complete rings. If after the sixth ring there is no answer, the
next Contractor on the list will be called.
2. If Contractor fails to answer the telephone, or answers but declines to
provide the requested services, the next Contractor on the list will be
called. If the next Contractor called is available, that call will not
constitute that responding contractor's next call on the Rotation Tow List.
Instead, the responding Contractor will be indicated on the list over
Contractor's name. The responding Contractor will then maintain its
original position on the list as next on rotation. Responding to a Service
Call will not alter a contractor's position on the Regular Rotation Tow
List.
3. Contractor inquiries to the Communications Center shall be limited to
urgent and justified circumstances, and not inquiries as to Contractor's
place on any Rotation Tow List. However, if Contractor will be
unavailable for an extended period of time, Contractor shall contact the
Communications Center in advance to provide information regarding the
time during which Contractor will be unavailable.
4. Contractor shall arrive at the site at which the vehicle to be towed is
located within thirty (30) minutes of receiving a telephone request from
the Communications Center. Contractor will advise the Communications
Center if, at the time of receiving a request for services from the
Communications Center, Contractor anticipates it will be unable to
respond within thirty (30) minutes.
5. If Contractor fails to arrive at the site at which the vehicle to be towed is
located within thirty (30) minutes, or if Contractor passes on a tow without
good cause as determined by the City, the City shall have the right to have
Resolution No. 2015 -127 N.C.S. Page 5
the vehicle towed by another Contractor. Repeated failure to meet the
response standards set forth above shall constitute a material breach of this
Agreement.
D. Standards of Service.
1. Certain standards of service required of Contractor are incorporated in this
Agreement by reference to the most current version of the California Highway
Patrol ( "CHP ") Tow Service Agreement (CHP Form 234), a copy of which is
available for reference at the Petaluma Police Department and at
http: / /www.chp.ca.gov /programs /rotation.html or such successor CHP Rotation
Tow Program website as may be implemented by the CHP. References in such
standards to the CHP, CHP tow program operations and /or CHP personnel are
intended to refer to the City of Petaluma and its Police Department, Petaluma
Police Department tow program operations and City of Petaluma personnel.
2. The following CHP Tow Service Agreement sections are incorporated
herein by reference as though fully set forth. In the event of subsequent
modification to the CHP Tow Service Agreement that modifies the section
numbers or titles of incorporated standards, the subsequent standards covering the
same subject matter shall apply:
a. Section 3. "TOW OPERATORS."
b. Section 4. "TOW OPERATOR'S BUSINESS."
(i) In addition to the standards contained in Section 4 of the
CHP Tow Service Agreement, the following documents, printed
in a minimum of 12 -point type, shall be posted by Contractor at
each storage facility in a conspicuous location, easily visible to the
public:
(1) Name and address of Contractor's insurance broker
handling the insurance coverage required pursuant to this
Agreement;
(2) A notice explaining the procedure by which
unclaimed vehicles are sold at public auction, including the
locations of such auctions and publications in which such
auctions are advertised, and stating that all in attendance at
such auction shall have an equal opportunity to bid.
C. Section 6. "RESPONSE TO CALLS." The CHP standards and
procedures contained in this Section are supplementary to Section
2.C. of this Agreement. When in conflict, Section 2.C. of this
Agreement shall govern.
d. Section 8. "TOW TRUCI{ DRIVERS ".
Resolution No. 2015 -127 N.C.S. Page 6
e. Section 10, "GENERAL EQUIPMENT SPECIFICATIONS."
f. Section 11. "INSPECTIONS."
g. Section 12, "RATES," subsections 12.13, 12.17 through 12.1, and
12.K through 12.0 only.
h. Section 16. "DEMEANOR AND CONDUCT."
Contractor shall provide City annually on July 15th a completed current
version of the TOW OPERATOR/DRIVER INFORMATION (CHP
234F) form for each tow truck driver employed by or under contract with
Contractor, and shall provide City with an updated form within twenty
four (24) hours of any change in driver status. Forms provided annually
shall be the current version of form CHP234F or other Tow
Operator /Driver Information Form as adopted by the California Highway
Patrol and normally available at
http: / /www.chp.ca.gov /programs /rotation.html or successor CUP
Rotation Tow Program website. The driver's current home address, if
different from DMV records, shall be listed on the form along with a
home telephone number.
4. All of Contractor's officers, agents, or employees who engage in
performance of this Agreement with City on behalf of Contractor shall be
neat in appearance and courteous to the public and to City employees.
5. Contractor shall supply its tow truck drivers with shirts upon which the
name of the driver has been stitched on the left pocket or a pin -on name
tag to be affixed to the left hand pocket. The shirt or name tag must be
worn by the driver at all times when the driver is towing vehicles or
interacting with the public or City pursuant to this Agreement.
6. Contractor shall take prompt and appropriate steps to resolve any third
party complaints arising from or related to services provided pursuant to
this Agreement. Contractor shall provide each such complainant with a
Customer Complaint form (provided by City), and shall fully cooperate
with City's investigation of and attempts to resolve complaints.
8. Neither City personnel nor Contractor nor Contractor's employees shall be
offered or accept gratuities pursuant to CVC section 12110(a). No tow
operator or its employees shall accept any gratuities from a repair shop for
the delivery of a vehicle not owned by the repair shop or the tow operator
for the purpose of storage or repair pursuant to CVC section 12110(c).
Resolution No. 2015 -127 N.C.S. Page 7
9. In the event Contractor discovers that a vehicle which has been towed has
a Vehicle Identification Number (VIN) which is different than the VIN
showing on the CHP Form 180, the Contractor will notify the Police
Department Traffic Division within twenty -four (24) hours of the time of
such discovery.
10. Multiple vehicle tows (bundling) are permitted only during traffic
collisions or removal of multiple vehicles from a single private property
location.
11. Failure to comply with any of the standards of service set forth in this
Subsection may be treated as a material breach of this Agreement.
E. Required Tow Trucks and Equipment.
1. Contractor shall maintain a minimum of three tow trucks with wheel lifts
or two trucks with wheel lifts and one car carrier to be available for City -
generated tows. The trucks must be staffed appropriately and stored at
locations sufficient to allow for the mandatory maximum response time.
The trucks must have a means of communicating with the Contractor's
dispatch center, preferably via 2 -way radio. At least one truck must be
equipped with the means of towing ball -type trailers.
2. Contractor shall equip, operate and maintain tow trucks covered under this
Agreement in accordance with the provisions in the CVC, Title 13 of the
California Code of Regulations, the specifications in this Agreement,
including but not limited to Section 10 of the CHP Tow Service
Agreement and in a manner consistent with industry standards and
practice.
All of Contractor's tow trucks shall be identified with signs in compliance
with CVC section 27907, with the additional requirement that such signs
be displayed on the right and left doors of each tow truck.
F. Storage Facilities.
1. All vehicles stored pursuant to this Agreement must be stored within a one
mile radius of Petaluma city limits. Contractors shall maintain a storage lot
or lots for purposes of storing vehicles towed pursuant to this Agreement
which meets the following requirements:
a. The lot shall include a level area large enough to store at least
thirty (30) automobiles with at least two (2) feet of clearance
between the sides of all vehicles, and at least one -foot of clearance
Resolution No. 2015 -127 N.C.S. Page 8
between the front or rear end of any vehicle and the front or rear
end of another vehicle.
b. The lot shall be enclosed by fencing that complies with all
applicable City ordinances and regulations including applicable
zoning regulations and permits;
C. The lot shall be available twenty -four (24) hours a day, seven (7)
days a week including holidays for storage of vehicles towed
pursuant to this Agreement; and
d. The lot shall be maintained so as to be reasonably secure from
intrusion by unwanted persons and adequately lighted.
2. Contractor shall also maintain covered storage on at least one of its storage
lots capable of storing at least one (1) vehicle.
Contractor shall maintain an office at its primary storage lot, staffed
twenty -four (24) hours a day, seven (7) days a week including holidays by
at least one employee, or have an employee available who can arrive at the
office within thirty (30) minutes of a City or citizen request. Contractor
shall provide a phone number that is answered twenty -four (24) hours a
day and shall display that number in a prominent place.
4. An employee of Contractor shall be properly trained to conduct business
transactions relating to towing, storage and release of vehicles /property.
Contractor shall maintain a security system sufficient to protect the office
and the vehicles stored pursuant to this Agreement.
6. Contractor shall be responsible for the safekeeping and prevention of
vandalism of all vehicles and contents which are stored or impounded by
the City until such vehicle has been released to its owner, or disposed of
through legal process. Contractor shall comply with police regulations
regarding the inventory or removal of property found in police- stored or
impounded vehicles.
7. Upon approval by the City, Contractor or its employee shall release
personal property from a vehicle which has been stored /impounded by the
City at the request of the vehicle's registered owner or agent (personal
property is considered to be items which are not affixed to the vehicle,
including but not limited to papers, cell phones, pull -out electronic
equipment, clothes, luggage, tools, etc.).
a. The requirement to obtain approval of the City prior to release of
removed property may be excused by the City if it is determined by the
City that proper safeguards and procedures are put in place and used by
Resolution No, 2015 -127 N.C.S. Page 9
the Contractor. This requirement may not be waived when a vehicle has
been impounded for evidence and investigation.
b. A receipt shall be provided for the removed property, with a copy
placed in the stored vehicle. This receipt procedure shall also apply to the
removal of property by Contractor and /or its employee to a secured area
within the business.
Pursuant to California Vehicle Code ( "CVC ") section 22851(b) and
22651.07(c)(1), no fee shall be charged for the release of a vehicle or
personal property during normal business hours. Normal business hours
are 8:00 a.m. to 5:00 p.m. Monday through Friday, excepting weekends
and state holidays.
a. Pursuant to CVC section 22851(b), the maximum charge
for a non - business hour release shall be one -half the hourly
tow rate, or less, charged for initially towing the vehicle.
b. Pursuant to CVC section 22851(b),No lien shall attach to
any personal property in or on the vehicle
9. Pursuant to CVC section 10650(a), the operator shall keep a written record
of every vehicle stored for a period longer than 12 hours.
10. All of Contractor's storage facilities shall have valid land use and other
regulatory permits, as may be required by law.
11. All of Contractor's storage facilities shall be operated and maintained in
compliance with all applicable environmental laws and regulations.
H. Vehicle Releases.
1. Stored or impounded vehicles shall not be released unless Contractor is
presented with a written release authorized by the City. Upon receiving
such a release during normal business hours, Contractor shall grant the
release and at no additional compensation, provide all services and
equipment necessary to release the vehicle or property taken from the
vehicle owner pursuant to this Agreement.
2. Contractor shall complete a Vehicle Impound Disposition Sheet (provided
by City) for each vehicle released from impound, and shall maintain the
completed Vehicle Impound Disposition Sheets.
Resolution No. 2015 -127 N.C.S. Page 10
In the event an owner of an impounded vehicle surrenders title to the
vehicle to Contractor, Contractor shall be entitled to immediately dispose
of the vehicle.
L Lien Sales.
Contractor will comply with the lien sale provisions set forth in Vehicle Code
Section 22851, and Civil Code Sections 3068.1 to 3074, inclusive. Contractor is
responsible for forwarding any excess lien sale proceeds in accordance with state
law.
SECTION 4 - TOWING AND STORAGE CHARGES
A. The maximum rates which Contractor may charge for the towing and storage of a
vehicle pursuant to this Agreement are set forth in Exhibit A, attached hereto and
incorporated herein by reference. During the term of this agreement, the City
Council may amend the maximum rates Contractor may charge for the towing and
storage of vehicles pursuant to this Agreement in accordance with Section
11.94.040 of the Petaluma Municipal Code. Such amended rates shall be made
applicable to this agreement by amendment approved by the City Manager in
accordance with Section 11.94.020 of the Petaluma Municipal Code.
B. Contractor shall not charge for moving a vehicle from one of Contractor's lots to
another.
C. Contractor shall not conspire, attempt to conspire, or commit any other act of
collusion with any towing Contractor or applicant for the purpose of secretly or
otherwise establishing an understanding regarding rates or conditions to a Tow
Franchise Agreement that would bring about any unfair condition which would be
prejudicial to the City, the motoring public or other franchise operators.
D. City will compensate Contractor at the rate of $50.00 per vehicle for each
abandoned vehicle towed pursuant to California Vehicle Code Section 22669,
from the Abandoned and Junk Rotation Tow List.
SECTION 5 — FRANCHISE FEE
A. Contractor shall pay the City a franchise fee as follows:
$75.00 per vehicle towed pursuant to the STOP Vehicle Forfeiture /30 Day
Impound List; and
$20.00 per vehicle for all other tows pursuant to this Agreement, except
for tows pursuant to the Police Special Set-vices Rotation Tow List, the
Resolution No. 2015 -127 N.C. S. Page 11
Abandoned and Junk Vehicle Rotation Tow List and those vehicles towed
pursuant to Vehicle Code Sections 22651(k) and 22651 (o).
B. Payment Requirements.
Franchise bills will be provided to Contractor(s) within 10 business days
of the end of each month. Franchise fee payments shall be due and
payable on the fifteenth (15th) of every month. The payment is to be
delivered to the Finance Department with a copy of the invoice sent by the
Police Department.
2. Franchise fee payments pursuant to this Agreement shall be in addition to
any other license fees, business license tax, or other fees or taxes required
by the City.
3. Each franchise fee payment shall be accompanied by a statement, verified
by Contractor, showing in such form and detail as the City's Finance
Director may require the facts material to determining the amount of the
monthly franchise fee.
C. Records. Contractor shall at all times maintain accurate and complete records of
each City - generated tow, which shall contain the following information:
1. Name and address, if available, of the person whose vehicle was towed;
2. Vehicle identification number, license plate number, make, year, and
model of towed vehicle;
3. Date and time request for tow was received;
4. Identify reason for tow by applicable Rotation Tow List, e.g., Police
Special Services, Regular, Abandoned and Junk Vehicle, or STOP Vehicle
Forfeiture /30 Day Impound;
Date and time of vehicle release;
Name of person to whom vehicle was released; and
All of Contractor's fees and charges for tow, including, but not limited to,
fees for towing, storage, gate fees, repair, and lien sale proceeds including
the date such fees, charges or proceeds were received.
D. Contractor shall provide City with the information required to be recorded under
subsection C, above, upon request along with the monthly franchise fee payment.
E. During the term of this Agreement the City Council may amend the franchise
fees applicable to this Agreement in accordance with Section 11.94.030 of the
Petaluma Municipal Code. Such amended franchise fees shall be made applicable
Resolution No. 2015 -127 N.C.S. Page 12
to this Agreement by amendments approved by the City Manager in accordance
with Section 11.94.020 of the Petaluma Municipal Code.
SECTION 6 - TERMINATION
The City shall have the right to terminate this Agreement without cause, upon thirty (30) days
written notice of termination. City may immediately terminate or suspend this Agreement for
cause upon written notice to Contractor. Cause for termination includes, but is not limited to, any
material breach of this Agreement; failure to comply with applicable laws and regulations; and
unacceptable, repeated and /or unresolved third party complaints. In the event of termination,
Contractor shall deliver to the City within thirty (30) days of the date of termination copies of all
reports, documents, and other work performed by Contractor under this Agreement. Contractor
shall pay City any outstanding franchise fee within 30 (thirty) days of the effective date of
termination.
SECTION 7 — LIVING WAGE ORDINANCE
Contractor shall comply fully with the requirements of Petaluma Municipal Code, Chapter 8.36,
Living Wage (the "Living Wage Ordinance "), as the same may be amended from time to time.
Upon the City's request Contractor shall promptly provide to the City documents and
information verifying Contractor's compliance with the requirements of the Living Wage
Ordinance, and shall within fifteen (15) calendar days of the Effective Date of this Agreement,
notify each of its affected employees as to the amount of wages and time off that are required to
be provided to them pursuant to the Living Wage Ordinance. Contractor's noncompliance with
the Living Wage Ordinance shall constitute cause for City's termination of this Agreement
pursuant to Section 5 hereof. In the event that Contractor believes it is not subject to the Living
Wage Ordinance pursuant to Petaluma Municipal Code Section 8.36.040.0 or any other
subsection, Contractor shall provide factual documentation acceptable to the City to establish
that Contactor is not subject to the Living Wage Ordinance,
SECTION 8 - INDEMNIFICATION
To the maximum extent permitted by law, Contractor shall, at its own expense, indemnify,
defend with counsel acceptable to the City, (which acceptance will not be unreasonably
withheld), and hold harmless City and its officers, officials, employees, agents and volunteers
( "Indemnitees ") from and against any and all liability, loss, damage, claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and
fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and
costs and fees of litigation) (collectively, "Liability ") of every nature, whether actual, alleged or
threatened, arising out of or in connection with the Contractor's work performed under this
Agreement or its failure to comply with any of its obligations contained in this Agreement or the
terms of this Agreement, regardless of any fault or alleged fault of the Indemnitees.
The Contractor's obligation to indemnify, defend and hold harmless under this provision shall
not be excused because of the Contractor's inability to evaluate Liability, or because the
Contractor evaluates Liability and determines that the Contractor is not or may not be liable.
The Contractor must respond within 30 calendar days to any tender for defense and indemnity by
Resolution No. 2015 -127 N.C.S. Page 13
the City, unless the time for responding has been extended by an authorized representative of the
City in writing. If the Contractor fails to accept tender of defense and indemnity within 30
calendar days, in addition to any other remedies authorized by law, so much of the money due or
that may become due the Contractor under this Agreement as shall reasonably be considered
necessary by the City, may be retained by the City until disposition has been made of the matter
subject to tender, or until the Contractor accepts the tender, whichever occurs first. In the event
that the City must file responsive documents in a matter tendered to Contractor prior to
Contractor's acceptance of tender, Contractor agrees to fully reimburse all costs, including but
not limited to attorney's fees and costs and fees of litigation, incurred by the City in filing such
responsive documents.
Contractor waives any and all rights to express or implied indemnity against the Indemnitees
concerning any Liability of the Contractor arising out of or in connection with the Services or
Contractor's failure to comply with any of the terms of this Agreement.
SECTION 9 - INSURANCE REQUIREMENTS
A. Contractor and any subcontractor shall not commence work under this Agreement
until Contractor and any subcontractor shall have obtained all insurance required
under this section and such insurance shall have been approved by the City
Attorney as to form and carrier and the City's Risk Manager as to sufficiency. All
requirements herein provided shall appear either in the body of the insurance
policies or as endorsements and shall specifically bind the insurance carrier.
B. Contractor shall maintain the following minimum levels of insurance for the
duration of this Agreement from an insurance carrier with a current A.M. Best's
rating of no less than A:VII:
I. Minimum Level of Financial Responsibility (as required by California
Vehicle Code §34631.5) - Bodily injury and property damage with a
combined single limit of not less than $1,000,000.00.
2. Uninsured Motorist - Legal State of California minimum, combined single
limit.
On -Hook Coverage - Insuring the vehicle in tow with limits based on the
size of the tow truck as follows:
a. Class A tow truck ..... ........................$50,000
b. Class B tow truck .... .......................$100,000
C. Class C tow truck .... .......................$200,000
d. Class D tow truck .... .......................$250,000
4. Garage Liability - Includes premises and operations. Coverage for bodily
injury and property damage with a combined single limit of not less than
$500,000.
Resolution No. 2015 -127 N.C.S. Page 14
5. Garage Keeper's Liability - Shall be the same minimum as on -hook
coverage for vehicles in the care, custody, and control of the operator in
the storage yard.
6. Workers' Compensation Insurance — Legal State of California minimum
requirements.
C. Any deductibles or self - insured retentions must be declared to and approved by
the City. At the option of the City, either the insurer shall reduce or eliminate such
deductibles or self - insured retentions as respects the City, its officers, officials,
employees, and volunteers; or the Contractor shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense
expenses.
D. The required policies are to contain, or be endorsed to contain the following
provisions:
I. The City, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds as respects: liability arising out of activities
performed by or on behalf of the Contractor; products and completed
operations of the Contractor; premises owned, occupied or used by the
Contractor; or automobiles owned, leased, hired or borrowed by the
Contractor. The coverage shall contain no special limitations on the scope
of protection afforded to the City, its officers, officials, employees, agents
or volunteers.
2. For any claims related to this Agreement, the Contractor's insurance
coverage shall be primary insurance as respects the City, its officers,
officials, employees, agents and volunteers. Any insurance or self -
insurance maintained by the City, its officers, officials, employees, agents
or volunteers shall be excess of the Contractor's insurance and shall not
contribute with it.
3. Any failure to comply with reporting or other provisions of the policies
including breaches of warranties shall not affect coverage provided to the
City, its officers, officials, employees, agents or volunteers.
4. The Contractor's insurance shall apply separately to each insured against
whom claim is made or suit is brought except, with respect to the limits of
the insurer's liability.
5. Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the
City.
Resolution No. 2015 -127 N.C.S. Page 15
Subrogation Waiver. Consultant agrees to waive subrogation rights
against City of Petaluma regardless of the applicability of any insurance
proceeds, and to require all Consultants, subcontractors or others involved
in any way with the services to do likewise.
7. Cross - Liability. The Liability policy shall include a cross - liability or
severability of interest endorsement.
SECTION 10 - OWNERSHIP OF MATERIALS
All reports, documents or other materials developed or discovered by Contractor in the
performance of this Agreement or any other person engaged directly or indirectly by Contractor
to perform Contractor's services are the City's property without restriction or limitation upon
their use; Contractor may use such reports, documents and other materials related to the conduct
of its business.
SECTION 11— GENERAL PROVISIONS
A. Non - exclusive franchise. The City reserves the right to enter into a non - exclusive
franchise agreement with an additional tow service provider at any time that the
City, in its sole discretion, determines this would be in the best interest of the
City.
B. Integration. This Agreement and all Exhibits attached hereto and incorporated by
reference herein, contain all of the agreements, representations and
understandings of the Parties, and supersede and replace any previous
understandings, commitments, or agreements, whether oral or written.
C. Severability. Should any provision or part of this Agreement be found to be
invalid or unenforceable, only that particular provision or part shall be
inoperative, and all remaining provisions and parts of this Agreement shall
continue in full force and effect and remain binding on the parties.
D. Waiver, The Contractor agrees that the City's waiver of any breach or violation
of any provision of this Agreement shall not be deemed to be a waiver of any
other provision or a waiver of any subsequent breach or violation of the same or
any other provision. The City's acceptance of the performance of any of
Contractor's services will not be a waiver of any provision of this Agreement.
E. Independent Contractor. It is understood and agreed that in the performance of
this Agreement, Contractor (including its employees and agents) is acting in the
capacity of an independent contractor, and not as an agent or employee of the
City. Contractor has full control over the means and methods of performing said
services, and is solely responsible for its acts and omissions, including the acts
and omissions of its employees and agents.
Resolution No. 2015 -127 N.C.S. Page 16
F. Compliance with Laws. Contractor shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state and local governments,
including without limitation, any and all laws specified elsewhere in this
Agreement. Non - compliance shall constitute a material breach of this Agreement.
G. Conflict of Interest. Contractor shall avoid all conflicts of interest or the
appearance of conflicts of interest in performance of this Agreement.
H. Nondiscrimination. Contractor shall not discriminate in the provision of service
or in the employment of persons engaged in the performance of this Agreement
on account of race, color, national origin, ancestry, religion, gender, marital
status, sexual orientation, age, physical or mental disability in violation of any
applicable local, state or federal laws.
I. Confidential Information. All data, documents, discussions or other information
developed or received by or for Contractor in performance of this Agreement are
confidential and must not disclosed to any person except as authorized by the
City, or as required by law.
J. Assignability. The parties agree that the expertise and experience of Contractor
are material considerations for this Agreement. Unless specifically authorized by
this Agreement, Contractor may not assign the performance of any obligation or
interest under this Agreement without the prior written consent of the City. Any
attempt by Contractor to assign this Agreement, in violation of this Section, will
be voidable at the City's sole option.
K. Subcontractors. Contractor must obtain the City's prior written consent for
subcontracting any services pursuant to this Agreement. Contractor shall ensure
that Contractor's subcontractor(s) comply with this Agreement by requiring any or
all of Contractor's subcontractor(s) to sign an agreement with Contractor requiring
compliance with this Agreement.
L. Governing Law and Venue. This Agreement shall be construed and its
performance enforced under California law. Any litigation between the parties
arising from this Agreement shall be venued in the Superior Court of California in
the County of Sonoma.
M. Notices.
1. All notices and other communications required or permitted to be given
under this Agreement must be in writing and must be personally served, or
mailed, postage prepaid via U.S. Mail, or sent via courier service,
addressed to the respective parties as follows:
Resolution No. 2015 -127 N.C.S. Page 17
To City: City Clerk
City of Petaluma
P. O. Box 61
Petaluma, CA 94593
AND
Traffic Division Sergeant
Petaluma Police Department
969 Petaluma Blvd. North
Petaluma, Ca. 95942
To Contractor:
2. Notice will be effective on the date personally delivered or if sent by
courier service, on the date of receipt. If mailed, notice will be effective
three (3) days after deposit in the mail.
The parties may change their respective addresses in accordance with the
provisions of this section, by written notification to the other party at the
address(es) above.
N. Headings. The headings of the sections and exhibits of this Agreement are
inserted for convenience only. They do not constitute part of this Agreement and
are not to be used in its construction.
SECTION 12 — ACKNOWLEDGEMENT, CERTIFICATION AND WAIVER
By executing this Agreement, Contractor agrees to all of the terms and conditions set forth
herein, and acknowledges that this Agreement and each of the terms and conditions herein,
including the franchise fee, constitutes a proper exercise of the City's police power under the
City's Charter and pursuant to California law, including, but not limited to, the provisions of the
California Vehicle Code. Contractor further acknowledges that Contractor has had the
opportunity to have this Agreement reviewed by Contractor's legal counsel, and that Contractor
has freely entered into this Agreement. Contractor hereby waives any right to challenge any part
of this Agreement or the procedures by which this Agreement, including the franchise fee, is
adopted and implemented by City.
Resolution No. 2015 -127 N.C.S. Page 18
By executing this Agreement Contractor further certifies that all tow drivers operating under this
Agreement are qualified and competent and meet the qualifications and standards of service for
drivers contained herein. Contractor's initials, affixed below, indicate that Contractor has read,
understood and agreed to this provision of the Agreement.
Contractor's initials:
WHEREFORE, City hereby awards Contractor a non - exclusive franchise to provide towing and
storage services, pursuant to California Vehicle Code section 12110 and the Petaluma City
Charter, in accordance with the terms and conditions set forth herein.
CITY OF PETALUMA CONTRACTOR
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
APPROVED:
Department Director
APPROVED:
Risk Manager
APPROVED:
Finance Director
By:
Signature
Name
Title
[Owner or authorized capacity]
Address
City State Zip
Taxpayer I.D. Number
Petaluma Business Tax Certificate Number
Resolution No. 2015 -127 N.C.S. Page 19
EXHIBIT A
TOWING AND STORAGE CHARGES
The maximum rates which Contractor may charge for the towing and storage of a vehicle
pursuant to this Agreement are as follows:
Tow..........................
Storage (Outside) ...............
Storage (Inside) .................
Release Fee /Gate Fee ..... ..... _
Service Call. .(per hour) .........
Police Special Services ..........
$150.00
$ 40.00 /da
$ 40.00 /da
$ 75.00
$150.00
$ 50.00
These maximum rates are subject to change during the term of this Agreement to reflect
increases in rates as provided by the California Highway Patrol's rate structure for Sonoma
County.
Resolution No. 2015 -127 N.C.S. Page 20