HomeMy WebLinkAboutOrdinance 2153 N.C.S. 07/07/2003~"
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6 Introduced by
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8 Vice Mayor O'Brien
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ORDINANCE NO. 2153 N.C.S.
Seconded by
Council Member Torliatt
12 AN ORDINANCE OF THE COUNCIL OF THE CITY OF PETALUMA
13 AUTHORIZING THE CITY MANAGER TO EXECUTE NON-EXCLUSIVE
14 TOW FRANCHISE AGREEMENTS WITH QUALIFIED TOW OPERATORS AND
15 ESTABLISHING INITIAL TOW FRANCHISE FEE
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18 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
19 FOLLOWS:
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21 WHEREAS, the City's Police Department maintains Rotation Tow Lists which are used
22 for dispatching private tow operators to provide police-related towing and storage as part of the
23 Police Department's towing program; and,
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25 WHEREAS, the City incurs costs in connection with its towing program; and,
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27 WHEREAS, California Vehicle Code Section 12110(b) provides that a public entity may
28 require a fee in connection with the award of a franchise for towing vehicles on behalf of that
29 public entity, provided the fee does not e xceed t he amount necessary to reimburse the public
30 entity for its actual and reasonable costs incurred in connection with the towing program; and,
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32 WHEREAS, inclusion on the City's Rotation Tow Lists confers a benefit on the private
33 tow operators because the registered owners of the vehicles towed pursuant to the towing
34 program must pay the tow operators for the tow and storage fees incurred; and,
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Ordinance 2153 N.C.S. Page 1
1 WHEREAS, t he C ity C ouncil w fishes t o grant a n on-exclusive f ranchise t o q ualifying
2 contractors for use of its streets and property in consideration of payment of a franchise fee duly
3 authorized by the California Vehicle Code; and,
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5 WHEREAS, a franchise fee of $75.00 per vehicle towed pursuant to the STOP Vehicle
6 Forfeiture/30-Day Impound List and $20.00 per vehicle towed pursuant to the Regular Rotation
7 List does not exceed the amount necessary to reimburse the City for its actual and reasonable
8 costs incurred in connection with its towing program.
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10 NOW, THEREFORE, BE IT RESOLVED that the City Manager is hereby authorized
11 to execute non-exclusive tow franchise agreements with qualifying tow operators using the City
12 of Petaluma Police Department Tow List Franchise Agreement ("Tow Franchise Agreement"), a
13 copy of which is attached hereto and incorporated herein as Exhibit 1.
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15 BE IT FURTHER RESOLVED that the initial franchise fee shall be $75.00 per vehicle
16 towed pursuant to the STOP Vehicle Forfeiture/30-Day Impound List and $20.00 per vehicle for
17 the Regular Rotation List.
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19 BE IT FURTHER .RESOLVED that said Tow Franchise Agreement and franchise fee
20 may subsequently be modified or amended by resolution of this Council.
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22 BE IT FURTHER RESOLVED that the Council may establish and amend by resolution
23 the maximum rates which may be c harged by the franchise tow operators, as reflected in the
24 towing and storage charges attached as Exhibit A to the Tow Franchise Agreement.
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26 If any section, subsection, sentence, clause or phrase or word of this ordinance is for any
27 reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent
28 jurisdiction, such decision shall not affect the validity of the remaining portions of this
29 ordinance. The City Council of the City of Petaluma hereby declares that it would have passed
30 and adopted this ordinance and each and all provisions thereof irrespective of the fact that any
31 one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid.
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Ordinance 2153 N.C.S. Page 2
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This ordinance shall become effective thirty (30) days after the date of its adoption by the
Petaluma City Council.
The City Clerk is hereby directed to post this ordinance for the period and in the manner
required by the City Charter.
INTRODUCED and ordered posted~„d this 16th day of June, 2003.
ADOPTED this 7th day of July, 2003 by the following vote:
AYES: Canevaro, Mayor Glass, Harris, Moynihan, Vice Mayor O'Brien, Torliatt
NOES: None
ABSENT: Healy
Mayor
ATTEST:
J
Cit~ Cler
Ordinance 2153 N.C.S.
Page 3
EXIIIBIT 1
CITE' OF PETALUIVIA POLICE I)EPAItT1VIENT
I20TATION TOW LIST FRANCHISE AGIZEElVIENT
This Agreement is entered into on , 2003 between the CITY OF PETALUMA, a
municipal corporation and a charter city ("City"), and
("Contractor") (collectively
"Parties").
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 121.10, as maybe amended from time to time, and pursuant to
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 I -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 which has a manufacturer's GVWR of at least 10,000
lbs.
"Class'B' Tow Truck" means a tow truck which has a manufacturer's GVWR of at least 19,501
lbs.
"Class 'C' Tow Truck" means a tow truck which has a manufacturer's GV WR of at least 33,000
lbs. and is equipped with air brakes capable of providing and maintaining continuous air to a
towed vehicle.
Exhibit 1 Ordinance 2153 N.C.S. Page 1 of 17
"Class 'D' Tow Truck" means a tow truck which has a manufacture's GVWR of at least 50,000
lbs. and is equipped with air brakes and capable of providing and maintaining continuous air to a
towed vehicle.
"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.
"Quarter Year" means each of the four (4) three (3) month periods ending March 31, June 30,
September 30, and December 31 respectively.
"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 - SC®PE ®F 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 maybe 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.
3. Calls generated from the Abandoned and .Tunk 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
Exhibit 1 Ordinance 2153 N.C.S. Page 2 of 17
.Abandoned and Junk Rotation calls Monday through Friday, 8:OOam to
S:OOpm, except holidays or under special circumstances.
4. Calls generated from the STOP Vehicle Forfeiture/30 Day Impound
Rotation List are limited to vehicles impounded pursuant to the California
Vehicle Code fora 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.
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 twenty-five (25) 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 twenty-five (25) minutes.
If Contractor fails to arrive at the site at which the vehicle to be towed is
located within twenty-five (25) minutes, or if Contractor passes on a tow
without good cause as determined by the City, the City shall have the right
to have the vehicle towed by another Contractor. Repeated failure to meet
the response standards set forth above shall constitute a material breach of
this Agreement.
Exhibit 1 Ordinance 2153 N.C.S. Page 3 of 17
D. Standards of Service.
Contractor warrants that all of its tow truck drivers are. qualified,
competent, properly trained and licensed to provide services pursuant to
this Agreement.
2. Contractor shall provide City with a list of all tow truck drivers employed
by or under contract with Contractor, and shall provide City with an
updated list within seven (7) days of any change in driver status. The list
shall include the following information for each driver:
a. Name;
b. Date of birth;
c. California Driver's License number and classification;
d. Medical certificate;
e. Job title or description;
f. Current home address and telephone number; and
g. Types of trucks driver is trained and licensed to operate.
3. 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.
4. 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.
While providing services pursuant to this Agreement, Contractor and
Contractor's employees or subcontractors shall not engage in misconduct,
including, but not limited to the following acts of misconduct:
a. Rude or offensive behavior;
b. Selective service or refusal to provide service;
Racial discrimination;
Exhibit 1 Ordinance 2153 N.C.S. Page 4 of 17
d. Sexual harassment or sexual discrimination;
e. Unsafe or unlawful driving; and
£ Exhibiting any objective symptoms of alcohol or drug use,
including, but not limited to, arriving at a tow scene with alcohol
on the breath.
Any tow truck driver who arrives at a tow scene with alcohol on his or her
breath shall submit to a preliminary alcohol screening test upon demand of
the Police Department.
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.
7. 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:
a. Name and address of Contractor's insurance broker handling the
insurance coverage required pursuant to this Agreement;
b. Schedule of all approved towing, storage and additional charges as
specified in this Agreement; and
c. 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.
8. In the event Contractor discovers that a vehicle which has been towed has
a Vehicle Identification Number (VIN) which is different that 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.
9. Bundling shall be permitted only on Sweeps.
10. Failure to comply with any of the Standards of Service set forth in this
Subsection maybe treated as a material breach of this Agreement.
Exhibit 1 Ordinance 2153 N.C.S.. Page 5 of 17
E. Required Equipment.
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. Of these, at least two shall be Class 'A' trucks, and at least
one shall be a Class 'B' truck. The trucks must be staffed appropriately and
stored at locations sufficient to allow for the mandatory 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 comply with all California Vehicle Code requirements
pertaining to the operation and maintenance of its tow trucks and
operation of its business.
All of Contractor's tow trucks shall be identifiable with signs in
compliance with Vehicle Code Section 27907, with the additional
requirement that such signs be displayed on the right and left doors of
each tow truck.
4. All tow trucks shall be equipped at all times with the Required Equipment
listed in Section 3 of Attachment C of the current California Highway
Patrol Tow Service Agreement (CHP 234), a copy of which is on file at
the Police Department.
F. Storage Facilities.
All vehicles stored pursuant to this Agreement must be stored within
Petaluma city limits. Contractor 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
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;
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
Exhibit 1 Ordinance 2153 N.C.S. Page 6 of 17
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 sheltered storage on at least one of its
storage lots capable of storing at least five (5) vehicles.
3. 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 twenty-five (25) 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. Contractor shall maintain a security system sufficient to protect the office
and the vehicles stored pursuant to this Agreement.
Contractor shall be responsible for the protection of each City-impounded
vehicle in its possession until such vehicle has been released to its owner,
or disposed of through legal process, and shall be responsible for
safeguarding all articles left in the impounded vehicle. Contractor shall
comply with police regulations regarding the inventory or removal of
property found in police-stored or impounded vehicles.
6. All of Contractor's storage facilities shall have valid land use and other
regulatory permits, as maybe required by law.
7. All of Contractor's storage facilities shall be operated and maintained in
compliance with all applicable environmental laws and regulations.
G. Inspections/Compliance.
City reserves the right to inspect all of Contractor's tow trucks and storage
facilities used pursuant to this Agreement to ensure compliance with this
Agreement and all applicable laws and regulations. Contractor shall fully
cooperate with such inspections, which shall take place during normal
business hours without prior notice.
2. Evidence of Contractor's failure to maintain its tow trucks and storage
facilities in compliance with this Agreement and all applicable laws and
regulations shall be cause for immediate suspension or termination of this
Agreement at the City's discretion.
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
Exhibit 1 Ordinance 2153 N.C.S. Page 7 of 17
release and provide for, at no additional compensation, all services and
equipment necessary to release the vehicle or property taken from the
vehicle owner pursuant to this Agreement.
2. Contractor may charge the vehicle owner a "Gate fee" as set forth in this
Agreement, for release requests received on weekends and City holidays,
or after 5:00 p.m. but before 8:00 a.m. on business days.
3. Contractor shall complete a Vehicle Impound Disposition Sheet (provided
by City) for each vehicle released from impound, and shall submit the
completed Vehicle Impound Disposition Sheets to the Police Department
at the end of each calendar month.
4. 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.
I. 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 3 -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. Contractor shall not charge for moving a vehicle from one of Contractor's lots to
another. Contractor shall not conspire, or attempt to conspire, or commit any other act of
collusion with any towing contractor for purposes of unfairly setting charges.
B. Abandoned Vehicles
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 4 -FRANCHISE FEE
A. Fee. 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
Exhibit 1 Ordinance 2153 N.C.S. Page 8 of 17
2. $20.00 per vehicle for all other tows pursuant to this Agreement, except
for tows pursuant to the Police Special Services Rotation Tow List and the
Abandoned and Junk Vehicle Rotation Tow List.
B. Payment Requirements.
Franchise fee payments shall be due and payable quarterly, within thirty
(30) days of the last date of each Quarter Year.
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.
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
quarterly 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:
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;
5. Date and time of vehicle release;
6. Name of person to whom vehicle was released; and
7. 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 quarterly franchise fee payment.
Exhibit 1 Ordinance 2153 N.C.S. Page 9 of 17
SECTION 5 -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 6 - INDEMIFICATION
Contractor shall defend with counsel. acceptable to the City, indemnify and hold harmless to the
full extent permitted bylaw, the City, its City Council, officers, employees volunteers and agents
from and against any and all claims, losses, liabilities, or costs (including, without limitation,
costs and fees of litigation) of every nature arising out of or in connection with Contractor's
work performed under this Agreement or its failure to comply with any of its obligations
contained in this Agreement, except such loss or damage which was caused by the sole
negligence or willful misconduct of City.
SECTION 7 -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:
1. 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 $750,000 for Class A tow trucks.
The combined limits for Classes B, C, and D shall not be less than
$1,000,000. These minimum standards are to include non-owned and hired
auto coverage.
2. Uninsured Motorist -Legal State of California minimum, combined single
limit.
Exhibit 1 Ordinance 2.153 N.C.S. Page 10 of 17
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.... ..................,...........$25,000
B. Class B tow truck .................................$50,000
C. Class C tow truck ...............................$100,000
D. ClassD tow truck ...............................$100,000
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.
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:
The City, its officers, officials, employees, agents and volunteers are to be
covered as 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.
Exhibit 1 Ordinance 2153 N.C.S. Page 11 of 17
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.
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.
SECTION 8 -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.
A. Contractor shall keep complete records and accounts of all gross annual receipts,
and the basis on which such gross annual receipts are derived from operations
pursuant to the Agreement. Such records and accounts shall be maintained for a
period of at least three (3) years, In the event of a claim or request by the City the
contractor will keep the related records until such claim of the City shall have
been fully ascertained and paid. In all cases, the Contractor will keep relevant
records for a longer period when required by law. The records and accounts,
required herein shall be kept separate from any other operations conducted by
Contractor.
B. Contractor's records and accounts shall include, but not be limited to: bank books,
duplicate bank deposit slips, bank statements, and checks; true copies of all tax
reports and returns made to the United .States of America, the State of California,
the County of Sonoma, the City of Petaluma, and any board, agency, or
commission thereof pursuant to law; and all such other papers, documents, and
files as are required in the ordinary course of such business, or which demonstrate
performance pursuant to the Agreement.
G Any records and accounts required to be maintained pursuant to this Agreement
shall be made available for inspection or audit at any time during regular business
hours upon written request by the City Attorney, the City Auditor or the City
Manager. Copies of such documents shall be provided City for inspection at City
Hall when it is practical to do so; except that the City shall examine true copies of
any tax reports and returns at Contractor's place of business. Otherwise, unless an
Exhibit 1 Ordinance 2153 N.C.S. Page 12 of 17
alternative is mutually agreed upon, the records shall be available at Contractor's
address indicated for receipt of notices in the Agreement.
D. If the City should have an audit made for any payment period, and the City-
generated tows and associated franchise payments due to the City cumulatively
shown by Contractor's statements for any such period should be found to be
understated by more than three percent (3%), the Contractor shall pay to the City
the full cost of such audit.
E. Where the City has reason to believe that such records and accounts maybe lost
or discarded due to dissolution, disbandment, abandonment, or termination of
Contractor's business, the City may, by written request by any of the above-
named officers, require that custody of the records be transferred to the City and
that the records and documents be maintained in City Hall. Access to such
documents shall be granted to any party authorized by Contractor, its
representatives, or its successor-in-interest.
SECTION 9 -GENERAL PROVISIONS
A. Effective Date. This Agreement is effective as of , 2003.
B. Term. The term of this Agreement is from , 2003 to
2005, inclusive, subject to early termination pursuant to
section 5. The parties agree to meet and confer in good faith after this
Agreement has been implemented for at least ninety (90) days, in order to
mutually evaluate the franchise fee amounts.
C. Non-exclusive franchise. The City reserves the right to enter into anon-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.
D. Inte rag tion• 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.
E. 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.
F. 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.
Exhibit 1 Ordinance 2153 N.C.S. Page 13 of 17
G. 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.
H. 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.
I. Conflict of Interest. Contractor shall avoid all conflicts of interest or the
appearance of conflicts of interest in performance of this Agreement.
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.
K. 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.
L. 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.
M. 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.
N. 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.
Exhibit 1 Ordinance 2153 N.C.S. Page 14 of 17
O. Notices.
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:
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: [Contractor Contact Name]
[Company Name]
[Address]
[City, State ZIP Code]
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.
3. The parties may change their respective addresses in accordance with the
provisions of this section.
P. 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 10 -ACKNOWLEDGEMENT 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
Exhibit 1 Ordinance 2153 N.C.S. Page 15 of 17
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. 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 anon-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
By
City Manager Name
ATTEST:
Title
City Clerk
Address
APPROVED AS TO FORM:
City State Zip
City Attorney
Taxpayer I.D. Number
APPROVED:
Petaluma Business Tax Certificate Number
Department Director
APPROVED:
Risk Manager
APPROVED:
Finance Director
#181840-3
6/6/03
Exhibit 1 Ordinance 2153 N.C.S. Page 16 of 17
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) ................. $_
Gate Fee ...................... $
Service Call ................... $
Police Special Services .......... $
/hour
When a vehicle owner presents an authorized release and requests release of a vehicle within
twenty-four (24) hours from the time the vehicle was towed, the Contractor may not charge the
vehicle owner for more than one day's storage in addition to any other applicable charges.
Evidence of overcharging customers shall be cause for immediate suspension or termination of
this Agreement at the City's discretion. Evidence of overcharging shall include, but not be
limited to, attempts to charge for equipment or services which were neither requested nor
required, such as charging for dispatching more than one tow truck in response to a call, when
only one tow truck has been requested or required.
Exhibit 1 Ordinance 2153 N.C.S. Page 17 of 17