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HomeMy WebLinkAboutResolution No. 23-8159 - Approving Franchise Agmt for Towing and Storage w Titan Trans.WHEREAS, the City of Downey desires to enter into a three-year agreement with Titm Transportation, Inc. for towing and storage services; and WHEREAS, a Public Hearing is set for March 28, 2023 to consider objections and grant franchise agreements; and, =E T&-3 I Jill 14 44: YEN 4 IMLOT, SECTION 1. Approve the Agreement with Titan Transportation, Inc. for towing and storage services for a three-year period commencing March 28, 2023 through March 27, 2026, in the form and substance attached and incorporated herein by this reference as Exhibit A, with minor, non -substantive changes to be made by the City Attorney. m *0 0 Is] kq UUMMMIUMMizim. ff. M-lummaw, M., immSian-. 7mr-711 APPROVED AND ADOPTED this 28 th day of March, 2023. CLAUDIA M. FROMETA, Mayor I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at a Regular meeting thereof held on the 28 th day of March, 2023, by the following vote, to wit: ATES: Councibm&embe_r_��_ �R_osaFxomela NOES: Council Members: None. ABSENT: Council Members: Trujillo ABSTAIN: Council Members: None. 7M.1171 M.M. iiii J Mftfam��M BETWEEN THE CITY OF DOWNEY AND FOCIM-1 A rl' A. Pursuant to California Vehicle Code section 22660, City has the authority to grant a franchise to a tow truck operator for towing and storage services required for the abatement and removal as public nuisances, of abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof from private or public property within the boundaries of City. B. California Vehicle Code section 1211 0(b) allows City to require a fee in connection with the award of a franchise for towing vehicles on its behalf provided that the fee does not exceed the amount necessary to reimburse the City for its actual and reasonable costs incurred in connection with the towing program. C. Chapter 12 of Article VI of the Downey Municipal Code establishes a Towing Service Franchise Program which authorizes the City Council to grant, at its discretion, a nonexclusive franchise to one or more tow truck operators to provide towing and storage services to the City and to charge a franchise fee pursuant to a franchise agreement. D. For the purpose of insuring the continued protection and preservation of the public health, welfare and convenience of the City, City desires to grant Franchisee a nonexclusive franchise agreement for towing services as defined herein within the City. E. Franchisee desires to provide such towing services upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the promises and of the covenants and conditions hereinafter contained, City and Franchisee mutually agree as follows: 1. INCORPORATION OF RECITALS. The Recitals set forth above constitute a material part hereof, and are hereby incorporated by reference herein as though fully set forth herein, 2. GRANT OF FRANCHISE. City hereby grants a Franchise to Franchisee to provide Towing Services, as defined in Section 3. Franchisee shall have throughout the term of this Agreement the nonexclusive right to engage in the business of providing Towing Services requested by City within the boundaries of City as the same now exist, and within any territory City hereafter annexes, except to the extent that towing services within such territory annexed would be unlawful or violate the legal rights of another person. 65186-0021 1\40937549 2 3. S" -PE OF TOWING SERVICES. Duringe term of this Agreement, Franchisee shall providethe followingTowing e ices ("Towing Services") toCity: A Removing illegallyparked B. Towing inoperative vehicles as a result of • C. Towing vehicles as a result of mechanical breakdowns; D. Storing or impounding vehicles for investigations, evidence, or violation of the law or for any other lawfulpurpose; E. Remove vehicle debris from accident scene-, G. Change vehicle tires; H. Maintaining tow records of stored and impounded vehicles; I. Provide secured storage lot for stored and impounded vehicles-, J. Provide service to start rain car battery or other vehicle malfunctions; 4. EFFECTIVE DATE OF AGREEMENT. unless sooner terminated pursuant to the terms of this Agreement. tit _ i . _ ,Y # _ • . # _ i accicients, ZOOM, r ' # . r . i • " #'' Impu 011i ` i'> 11 subject to being non -consensually towed and stored at the direction of the City. Towing Services i The Chief of Police, or his/her designee, has the final authority to determine disputes as to the ability or authority of Franchisee to perform Tow Services for the City. If it is determined that Towing Services are not needed and are canceled by City, acting by and through the Downey Police Department,r to, and including arrival at the scene, there shall be no charges assessed to City by •request. OFFICE.7. LQCATION OF TOWING AND -STORAGE YARD FACILITIES ANO BUMNESS office within the City limits necessary to meet the requirements of this Agreement. Franchisee further agrees to furnish proof to the Chief of Police or his/her designee of possession of towing perform the obligations set forth in this Agreement. The towing and storage yard facilities and Franchisee represents that it has or will establish towing and storage yard facilities and a business business office must meet the zoning and building requirements of the City of Downey. Failure I obtain and maintain towing and storage yard facilities and a business office within the City limi during the term of this Agreement or to secure towing and storage yard facilities within the Cil limits will result in the automatic suspension of Franchisee's Towing Services until Franchisee ca demonstrate to the Chief of Police or his/her designee that such towing and storage yard facilitic and a business office are established with the City limits. 8. COMPLIANCE WITH LAWS. Franchisee must at all times throughout the term of this Agreement, comply with the terms of th Agreement, all state and federal laws, and all current and subsequently enacted towing ordinance rules or regulations enacted by City that are applicable to Franchisee. 9. BUSINESS LICENSE. Franchisee shall possess a valid City Business License prior to providing Towing Services undo this Agreement. 10. RESPONSE TIME. During the term of this A.reement, Franchisee shall arrive at the site at which the vehicle to t towed is located within fifteen (15) minutes of A verbal request for service by a member of tI Downey Police Department, or other authorized City personnel. Franchisee shall be available f( requests for service by the Downey Police Department or other authorized City personnel, 24 houi per day, 7 days per week, 365 days per year, including holidays and weekends. No exceptions. Franchisee's dispatcher shall notify the Downey Police Department Dispatch when it canni r tj immediately respond to a City -initiated request for Towing Services, shall state the reason for I delay, and provide the Downey Police Department Dispatch with an estimated time of arrival. 11. STAFFING. Franchisee sh,?,Il maintain at least two ( 2,Lqualified tow truck drivers to respond to requests for service by the Downey Police Department or other authorized personnel at all times. 12. PERSqNNEL TRAINING - QUALIFICATIONS. of the responsibilities set forth in this Agreement. To ensure the proper qualifications of Franchisee's tow truck drivers, Franchisee agrees to the following terms: A. Driver Information. Franchisee shall provide the name, date of birth, current photo and valid California driver's license number of all drivers employed by Franchisee in writing to the Downey Police Department Field Operations Captain. Franchisee shall notify the Downey Police Department Field Operations Captain, or his/her designee, in writing of any new drivers or any change in employment status of a current driver within five (5) days of their date of hire or change in employment status. B. Pull Notice Ptggram. Franchisee shall participate in the Employer Pull Notice Program through the Department of Motor Vehicles. Franchisee shall notify the Downey Police Department Field Operations Captain, or his/her designee of any Pull Notices received for any of Franchisee's current drivers. 65186.0021 1\40937549.2 C. Tow Truck. Driver OualificationLVRe uirexqents. s/R--q_ _ (1) Tow truck drivers employed by Franchisee shall be at least 18 years ol possess the required class driver's license to operate a tow vehicl Franchisee must have drivers available to operate any and all tow vehicl specified in this Agreement. All drivers must be sufficiently capable trained to ensure safe and proper discharge of their Towing Services i safe and courteous manner. (2) All tow truck drivers shall comply with the requirements set forth California Vehicle Code Sections' 27700 and 24605. All tow truck drive shall meet all requirements specified in Sections 2430.5 and 12520 of t - California Vehicle Code. (3) During the term of this Agreement, Franchisee and/or tow truck drive shall provide the Downey Police Department Field Operations Captain, his/her designee, with information in writing concerning any drivi citations received by the tow truck driver(s) in the immediate prior three years and all information regarding any criminal convictions. (4) Franchisee's tow truck drivers shall present a neat ' clean and profession - appearance. Tow truck drivers shall wear uniform type pants (or shor during warm weather) and shirts that identify the tow service company their name (first or last). I (5) The Chief of Police, or his/her designee, in his or her sole discretion, m require that Franchisee's tow truck drivers: I (b) Undergo background checks by the California Department of Motor Vehicles and any other agency deemed appropriate to determine the safety practices of the tow truck drivers; (6) Franchisee shall not utilize a tow truck driver to render services pursuant this Agreement if any of the following conditions exist: i (a) A tow truck driver who is subject to epilepsy, fainting or loss of consciousness by reason of chronic medical condition; (b) A tow truck driver whose driving record indicates five (5) violations of traffic laws involving moving vehicles within two (2) years preceding the date of the effective date of this Agreement; (c) A tow truck driver who has furnished false information in any document submitted to City in connection with this Agreement or who has omitted to furnish all information requested by City in connection with this Agreement; (d) A tow truck driver who has been convicted of driving while under the influence of intoxicating liquor or narcotic drugs, or both, within three (3) years of the effective date of this Agreement; or 4 651 W00211040937549,2 (e) A tow truck driver who has been convicted of a felony, any crime involving moral turpitude, or any crime(s) specified in this Agreement within two (2) years preceding the effective date of this Agreement. (7) Notwithstanding compliance with the foregoing provisions, the City may prohibit certain tow truck drivers from providing Towing Services to the City or the Downey Police Department in its sole discretion. Such directives shall be made by the Chief of Police, or his/her designee, in writing to Franchisee. 13. COMMUNICATIONS. Franchisee shall install and maintain radio transmission and reception equipment allowing for two- way communication with each authorized tow vehicle. 14. BUSINESS HOURS - AVAILABILITY BY TELEPArME. There shall be a Franchisee employee or agent available in person during normal business hours at Franchisee's office to handle requests for service and release of impounded/stored vehicles. Normal business hours shall be Monday to Friday, inclusive, from 7:00 a.m. to 5:30 p.m_ inclusive, except state holidays. Franchisee shall have an attendant on duty after hours ti accommodate the release of vehicles after normal business hours. 15. IMPOUNDED VEHICLES. A tow truck driver shall give to the driver or owner of a vehicle to be stored, impounded or towed away, a business card, and a receipt with the Franchisee's name, address and phone number. The Franchisee's information shall be provided to the Downey Police Department in the event that the driver is unavailable or incapacitated. A vehicle impounded pursuant to the authority granted by local, state or federal law will be documented by Downey Police Department personnel. Franchisee shall obtain authorization from the Downey Police Department before any vehicle ordered towed, stored or impounded by the Downey Police Department can be released by Franchisee. 16. RKLEAWOF 31MLE AFTER ffORAGE / IMPOUND. release form, Franchisee shall not release the vehicle, but instead refer the person to the Downey Police Department for further processing. The final decision for release of a vehicle shall come from the on -duty Watch Commander, or his/her designee. Franchisee shall adhere to the decision of the on -duty Watch Commander or his/her designee. Franchisee ffirther agrees that it will release any stored or impounded vehicle to the person release fti�m witkiA, at a minimum, 45 minutes of presentation by a person of this documentation or upon receiving written instructions to release a vehicle by the Downey Police Department Watch Commander, or his/her designee. Franchisee further agrees that all storage or impound fees cease to accrue immediately upon presentation of such documentation, regardless of the ultimate time of release of the stored or impounded vehicle. 65196,002 11 \40937549.2 No personal property shall be removed from the stored or impounded vehicle without prior written authorization from the Watch Commander. For purposes of this Agreement "personal property" means items in the stored or impounded vehicle that are not affixed to the vehicle. During the term of this Agreement, Franchisee shall, at a minimum, comply with the followir-M requirements and standards with respect to its vehicle storage yard facilities: I A. Location of Stormae Facility: During the term of this Agreement, Franchisee's storage yard facilities and business office must be located within the jurisdictional limits of the City of Downey. Stored vehicles should be at a single location in the City of Downey. If a secondary storage location is required by Franchisee, it must also be located within the City of Downey. The Franchisee's business office and storage yard facilities existing as of the date of this Agreement shall not be changed to a new location in the City without the prior written consent of the Chief of Police or his/her designee. B. Storga Facility RcqqikqM�: Franchisee shall provide adequate secur ty measures for the protection of vehicles and property at all storage yard facilities. The Downey Police Department Field Operations Captain, or his/her designee, shall determine the adequacy of Franchisee's security measures and may grant additional consideration for state -of -the -art security measures, including, but not limited to, security cameras and motion sensors. At a minimum, all storage facilities shall comply with the following requirements: (1) All vehicles stored or impounded by Franchisee at the direction of the Downey Police Department or other authorized City personnel must be stored in storage yard facilities that are enclosed by a substantial wire fence or wall enclosures. The storage yard facilities must have locks for all gates, doors, or other means of access. Such fence or wall enclosures shall be not less than six (6) feet in height and shall be provided with not less than one gate, door, or other means of access of adequate width and height. The bottom edge of the fence or wall enclosure structure shall not be more than two (2) inches above the finished parking surface of the enclosed area. The top edge of the fence or wall enclosure, including all gates, doors, or other means of access shall be equipped with not less than two (2) barbed wires installed in such manner as to discourage access over the top of the fence or wall enclosure. In cases where wire mesh is attached to the roof, barbed wire will not be required. Wire mesh installation erected inside of building need not be provided with barbed wire. All fence or wall enclosures shall be maintained and repaired throughout the term of this Agreement. Any damage to such fence or wall enclosures shall be repaired within twenty-four (24) hours to ensure proper protection for the stored or impounded vehicles. ill iiiiii wig f?, ili Uctures, iAi6WW_ 0 M i A 6 65186 0021 1\40937549.2 by the Downey Police Department Field Operations Captain, or his/her designee. (2) The storage yard facilities shall have capacity to store a minimum of 100 vehicles. (3) The security measures provided for the storage yard facility shall adequate to preclude theft, vandalism or damage by activity while Franchisee's lot. The storage yard facility and lot shall be configured in su a way that no vehicles shall be left parked or stored on the public streets any time. C. During the term of this Agreement, all storage yard facilities must be available for inspection upon request by the Downey Police Department. D. All necessary vehicle storage yard facilities needed to meet the minimum requirements of this section shall be the sole responsibility of Franchisee. All necessary approvals for such storage yard facilities shall comply with the applicable provisions of the Downey Municipal Code, and/or the appropriate State or County codes. Compliance with this subsection shall not be deemed to create any duty by the City to award a permit to Franchisee. E. The Downey Police Department may inspect Franchisee's storage yard facilities used under this Agreement at any time during normal business hours. Franchisee must have equipment for and have personnel proficient in unlocking lockv- vehicles when requested by the Downey Police Department. F. Throughout the term of this Agreement, Franchisee shall maintain in gM4 condition the real property and improvements thereon, of the storage yard facilities used in the performance of the service required by this Agreement. MMIERMICIIIII Franchisee shall provide indoor storage Tacilities or sheltering cover 7or a WOMM"TURN-11" vehicles sufficient to protect vehicles from the elements (i.e., wind, heat, dust, adverse weather and other forms of contamination). The Downey Police Department Field Operations Captain, or his/her designee, shall determine the adequacy of the indoor storage facilities or sheltering cover. 6Wdio-t& Agreement at any time during normal business hours. Franchisee must have equipment for and have personnel proficient in unlocking locked vehicles when requested by the Downey Police Department. T damage to any evidence, such as fingerprints or stains. Vehicles taken into custody that involve evidence shall be stored in an area protected against entry by unauthorized persons. 20. EQLJIj!L4ENT STANDARDS. During the term of this Agreement, Franchisee shall comply with the following equipmen, standards: 7 65186,002 I 1 \40937549.2 A. At its sole expense, Franchisee shall secure the following vehicles that conform to the California Highway Patrol's Classification (CHP Class) forte gross vehicle weight ratings GVWR) of a truck chassis t. (1) A minimum of one (1) fiatbed car carriers (Class A or Class B); is (2) A minimum of three (3) light -medium duty tow trucks, consisting of: (a) At least two (2) light duty (Class A); is (b) At least one (1) medium duty (Class B); is (3) Preferably, at least one (1): (a) Heavy duty (Class Q; or (b) Super heavy duty (Class D); plus (4) Preferably, at least one (1) tow truck that is equipped to lift and carry a disabled person in a wheel chair. (5) All trucks must have two-way radio communication equipment, B. Franchisee further agrees that all Franchisee's to vehicles shall have basic equipment for the towing of vehicles. Basic equipment shall include: • Fire Extinguisher • Broom • Shovel • Reflective Triangles • Flares • Trash Can(s) with Absorbent Material • Office, to Truck Radio System • Winch CMotorcycles that are stored, impounded, or towed at the direction of the Downey Police Department or other authorized City personnel shall be towed by a trailer that is designed to carry motorcycles or by a flatbed truck in an upright position. W.. Any and all equipment used and maintained by Franchisee must be made available for inspection by the Downey Police Department upon request. The Downey Police Department may conduct random vehicle and equipment inspections to ensure compliance with this Agreement. E, All equipment and vehicles to be used during the term of this Agreement shall be inspected by the California Highway Patrol at least one time per year. All vehicles and equipment shall display a current inspection sticker (or satisfactory proof 'OVWk kanggjg�o CHP Class 10,000 - 19,500 A 19,501- 33,000 B 33,001 — 49,999 C 50,000 or more D 8 65186,0021 1\40937549,2 thereof) issued by the California Highway Patrol prior to its use pursuant to this Agreement. F. Throughout the term of this Agreement, Franchisee shall maintain in good condition all vehicles, facilities, equipment and material used in the performance of the service required by this Agreement. After being requested to respond to the scene by the Downey Police Department or other authorized City personnel, Franchisee operator shall: A. Neither move the vehicle nor attach to any vehicle until instructed to do so by member of the Downey Police Department. B. Shall clean up and remove any and all debris from the accident scene as require by the Downey Police Department and the California Vehicle Code. C. Provide towed vehicle owners, when present at the scene, with a business car other information, indicating the name of the Franchisee and address where tl vehicle will be stored, the telephone number and hours of operation. 22. RECORDS AND REPORTING. Franchisee shall maintain records relating to vehicles towed, stored or impounded for a period n4 to exceed five (5) years. Each month, Franchisee shall fumish to the Chief of Police or his/h4 designee in writing as well as via email, a report of all vehicles that have been towed by Franchis( under the terms of this Agreement for the previous calendar month. Such report shall indicate ti storage location of each vehicle, and shall include the vehicle make, license number and vehic. identification number. Such report shall also indicate whether a vehicle has been stored for thiri (30) days or for a longer period. The report shall also list the number of vehicles towed, stored, ( impounded at the request of City that have been sold through lien sale. The written report requirc under this Section shall be due no later than ten (10) days after the end of the previous calendL month. Franchisee owner must also notify the California Highway Patrol (CH.P) as required t Section 10652 of the California Vehicle Code. 23. R�SMCTION OF �M!gORO& FACILIMS. EQUIPMM AND 2913ER�- All records required to be kept by Franchisee owner shall be available for inspection by representatives of the Downey Police Department and the California Highway Patrol. In addition, Fra,tic.'tisee sWl rigswabli, i . imi, ii insiection if all drivers, vehicles, egipment Will to, ana storage YUM 1=111LICS Uj-U11W--JFFUW11rj runuMPTpaninum. rMUCHISM WIWI Highway Patrol inspection certifications for each of its towing vehicles to the Downey Police Department. If Franchisee cannot produce an annual California Highway Patrol certification, the Downey Police Department reserves the right to require that all towing vehicles be inspected by an automotive professional certified by the State of California Bureau of Automotive Repair, selected by the Downey Police Department. All vehicle inspection fees shall be borne solely by Franchisee and shall be due and payable upon presentation of the vehicles for inspection. Any tow vehicle that fails an inspection shall not be used to provide Towing Service in the City until it is F-Ak ff, Wirec;_tection. All tow vehicles shall be ov erated and maintained in comyliance with all applicable state and federal laws and regulations. 9 65186.00211 140937549-2 A. Qjk _g&s Apply. The towing rates and storage fees initiated incurred by City under this Agreement cannot exceed the towing rates and storage fees established each year by the California Highway Patrol (CHP) in accordance with the CRP/Santa Fe Springs Station -Fee Schedule for Public Tows. Franchisee's rates may be reviewed annually on June Ist to confirm that they match the CHP/Santa Fe Springs. Station -Fee Schedule for Public Tows. Franchisee must notify the Chief of Police or his/her designee in writing of any tow rate and storage fee increases to match the CHP/Santa Fe Springs Station -Fee Schedule for Public Tows. The Downey Police Department will verify any increases. Any disputes will be reconciled through a meeting between the Chief of Police or his/her designee and Franchisee owner. If the rate and fee increases are verified, the new rates will take effect on July I st. Franchisee agrees that Chief of Police's, or his/her designee's, determination concerning tow rates and storage fees shall be final. B. Short StqEqgq�. Vehicles stored eight hours or less shall be charged no more than one-day's storage fees. Each day thereafter shall be calculated by the calendar C. Pgstipg of&N$. Franchisee must maintain a sign listing the rates, fees and charges of all towing and storage services offered. Such sign shall be conspicuously placed in the office or other places where customer financial transactions take place. A copy of the rate schedule shall be maintained inside each tow vehicle and presented upon request by a vehicle owner or driver for any vehicle towed or stored by Npsibjq,_�. In the event that a vehicle is stored or impounded at the direction of the Downey Police Department or other authorized City personnel, and it is subsequently determined that the City is responsible for the cost of such storage and/or towing, Franchisee agrees not to assess the City for costs of tow and/or storage of the vehicle. E. Stoiraac of Vehic-los in Criminal Matters. Franchisee agrees to tow and store vehicles that will be used as, or contain, evidence of crimes for the Downey Po ice Department without charge to City. Franchisee's inability to perform this function constitutes a material breach of this Agreement and shall provide the basis for either suspension or revocation of this Agreement, in the discretion of the City. However, Franchisee shall not be required to tow and store vehicles that will be used as, or contain, evidence of crimes if criminal charges are pending against Franchisee, or one of its owners, principals or employees. F. After Hour Vehicle Releases. Franchisee normal business hours shall be Mond to Friday, inclusive, from 7:00 a.m. to 5:30 p.m., inclusive, except state holiday However, when in the opinion of the Chief of Police or his/her designee, unusu circumstances warrant the release of an impounded vehicle or vehicles outside the normal business hours, the Franchisee shall provide personnel at a call stati where they may be contacted for such emergency release or releases during 8 hours. Such after -hour releases shall be charged at 50 percent (50%) of the curre tow rate for release pursuant to California Vehicle Code section 22658(n)(2)(131) G. Towing of City Whicles. Franchisee further agrees to tow and store, for a period not exceeding five days, all City vehicles free of charge. Moreover, Franchisee agrees not to charge for the changing of flat tires, service to start drained car battery or other vehicle malfunctions and lockout service on City vehicles. 25. FRANCHISE FEES. In order City to recover its actual costs in administering its Towing Service Franchise Program and to administer this Agreement and for the privilege of being a nonexclusive Franchisee for City - requested Towing Services, Franchisee shall pay Franchise Fees to City which shall be shall be due and payable as follows: A. Franchisee agrees to pay City a Franchise Fee in an amount equal to 20% of Franchisee's Gross Revenues attributable to the towing, storage and impound services provided by Franchisee to City pursuant to this Agreement for those vehicles towed, stored or impounded when a storage form (CHP 180) has been completed and a Department case number has been assigned. For purposes of this Agreement, the term "Gross Revenues" means all cash, credits, revenues, property of any kind or nature or other consideration as determined according to generally accepted accounting principles consistently applied, derived directly or indirectly by Franchisee, its affiliates, subsidiaries, parents, and any other person or entity in which Franchisee has a financial interest or which has a financial interest in Franchisee's tow truck business, arising from or attributable to the towing and storage services provided, except that credit card processing fees, also known as "discount merchant fees," and which includes all fees in connection with a credit card transaction, in an amount not to exceed three (3)% per transaction, shall not be included in the calculation of "Gross Revenues," as defined herein. No other fees or costs in connection with operating expenses are to be deducted from "Gross Revenues." B. The Franchise Fees shall be paid by Franchisee on at a quarterly basis to the City of Downey Finance Department on January 15th, April 15th, July 15th and October 15th. If Franchisee chooses to pay Franchise Fees other than on the described quarterly basis, the proposed payment schedule must be approved by the Field Operations Captain or by his/her designee. C. The report mentioned in Section 22 shall accompany the quarterly Franchise Fee payments from Franchisee. D. The Franchise Fee may be adjusted annually by City Council resolution starting July 1, 2016 to reflect the City and the Downey Police Department's current costs for operating the Towing Service Franchise Program. Any such adjustment shall be applicable to Franchisee upon ten (10) days written notice of the adoption of such resolution, E. The City retains the right to impose alternative forms of fees, to the extent permitted by law, in the event that the fees provided for in the towing services agreements are no longer assessable due to a subsequent change in federal, state or local law. 11 65186 0021 1\40937549,2 26. AUDITS. A. Franchisee must make available to the Downey Police Department, the City or their designated representative(s), upon three (3) day's written notice, its accounting records and books for inspection and audit. The Downey Police Department, the City or City's designated representative(s) agree to maintain the confidentiality of such accounting records and books. Franchisee shall submit quarterly documentation detailing its operations on behalf of the City in both written and electronic formats that are acceptable to the Downey Police Department. Such documentation shall include the following information: the date, time, location, case number (if any), vehicle description (including make, model and vehicle license number) and a brief description of the circumstances surrounding the tow (traffic collision, Department impound B. Franchisee shall maintain these records for a period of five (5) years. Such records shall be available at all times during regular business hours and shall be subject to audit by the City of Downey or an outside auditing firm contracting with the City. Failure to make available for audit all gross receipts within two business days shall constitute cause for termination of this Agreement by the City. C. If the results of any audit show a Franchise Fee underpayment of greater than five (5) percent, Franchisee will pay a penalty of the amount of the underpayment plus 50 percent of the underpayment to the City within 15 days of issuance of the audit results. Any underpayment and any resulting penalty shall accrue interest at the rate of ten percent per annum, compounded daily from the date the underpayment should have initially been paid to the City. D. In the event the results of any audit are disputed by Franchisee or City, the City may, at its sole discretion, elect to a resolve the dispute by submitting the matter to independent auditors for review. The City and Franchisee shall each select an independent auditor at their own cost. The two auditors shall agree upon the results of the audit and submit their recommendations to the City and Franchisee. If the two independent auditors cannot agree upon the results of the audit, a third auditor will be selected by the two independent auditors to make a final determination. The cost of the third auditor shall be bome equally by both City and Franchisee. The determination of the third independent auditor shall be final. E. By accepting and signing this Agreement, Franchisee irrevocably waives the defenses of any statute of limitation, laches, waiver or other equitable doctrine of similar import or effect in any action brought by the City to recover any fees, interest or penalties due under this Agreement. F. By accepting and signing this Agreement, Franchisee agrees that if it challenges the right of the City to collect the Franchise Fees set forth in this Agreement, any relief requested by Franchisee and awarded to it by virtue of such challenge shall be prospective only from and after the date of the filing of the initial pleading seeking such relief in a court of competent jurisdiction. Franchisee hereby waives any and all claims or rights to collect back from the City, or obtain credit against future payment obligations, any amounts collected by the City prior to the filing of the initial pleading seeking such relief. In the event Franchisee's challenge to any 12 65196,0021 1A09375492 9:1-A shall continue to make all Franchise Fee ♦ in accordance with this Agreement pending an appeal • the City. In the event the court • appeal, or trial court if the City elects not to appeal, determines that the City is not entitled to collect any or all of the Franchise Fees, the City shall refund to Franchisee those portions of the Franchise Fee which the court deems the City was not entitled to Ulifett-WI&irwel:6 inuie ey.clusive • interest • such amount. The Franchisee shall • payment by a valid bank credit card • cash for towing and storage charges. The Franchisee shall have sufficient funds on the premises to accommodate and make owner, legal owner or the agent claiming the vehicle in accordance with California Vehicle Code • 2265 31 :11 M 10 UMENO VARM&MV1 advertising material which indicates that his/her business is an official towing service or police storage facility of the City of Downey or the Downey Police Department. C9. PWPD DUTY TO DEFEND. •` ♦ To the fullest extent permitted by law, Franchisee agrees to indemnify, defend, protect, hold harmless, and assume all liability of the City, its elected officials, officers, employees, agents and volunteers (collectively "Indemnified Parties") from and against all claimsJncluding- without limitation claims for bodilg u "j, death, damage to property or workers' compensation benefits), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and costs, and all other professional, expert or consultant's fees) of every •. and nature whatsoever (individually, a "claim"; collectively, "claims"), whether under state or federal law, which may arise from or are in any manner related to this Agreement, regardless of any active or passive negligence or strict liability- of the Indemnified Parties, and further agrees to indemnify the Indemnified Parties, regardless of whether the Claim or Claims is/are asserted by an elected official, officer, employee, agent or volunteer of the City. Franchisee understands and acknowledges that the indemnification obligation hereunder, includes, but is not limited to, a "Type I" indemnity under Califomiq� law and extends to and includes all claims arising from the active or passive fiegligence of the Indemnified Parties. Franchisee further •; and acknowledges that the indemncation obligation hereunder extends to workers' compensation claims made by any elected officials. officers. eMj2loXees. agents or volunteers of the Citv which mav arise from 13 6 5186.00211140937549,2 or are in any manner related to the provision of towing services by Franchisee pursuant to this Agreement. B. D"t to Defend by any Indemnified Party or the payment or advance of defense costs by any Party's rights to indemnification hereunder. Franchisee's duties to indemnify, defend and hold harmless pursuant to this Agreement shall survive the either the expiration or earlier termination of this Agreement until such time as any legal ified hereunder are fully and finally barred by all applicable statutes of limitation or statutes of repose. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Franchisee's duties to indemnify, defend or hold harmless pursuant to this Agreement. 30. LIABILITY INSURANCE. A. Franchisee shall, at its own cost and expense, maintain policies of insurance affording protection against third party bodily injury liability and property damage liability occasioned by reason of the provision towing services, impoundment and storage of vehicles. The minimum insurance established for the following categories are: (1) General Liability Insurance — Franchisee agrees to maintain a comprehensive general liability insurance policy with a combined single limit for bodily injury and property damage of not less than Two Million Dollars ($2,000,000.00). (2) Commercial Business Automobile Liability (as required by Section 16500.5 California Vehicle Code) - Bodily injury and property damage with a combined single limit of not less than Three Two Million Dollars ($2,000,000.00). The policy shall also include owner, non -owner, and hired auto coverage. (3) Uninsured Motorist — Legal minimum, combined single limits. (4) Garage Liability — Includes premises and operations. Coverage for bodily injury and property damage with a combined single limit of not less than Five Hundred Thousand Dollars ($500,000.00). (5) Garage Keeper's legal liability insurance coverage with limits of not less than Six Hundred Thousand Dollars ($600,000.00) for loss or injury to or destruction of any stored vehicles as a result of Fire, Theft, Explosion, Riot and Civil Commotion or Vandalism and Malicious Mischief. 14 65186.0021 1\40937549,2 B. Franchisee shall obtain and maintain at all times in full force and effect during the term of this Agreement all insurance policies and coverage listed above, which shall not' be canceled prior to the termination of this Agreement. The insurance provided under this Section shall include an endorsement page(s) naming "the City of Downey, its elected and appointed officials, officers, employees, agents, and volunteers as additional insured. Franchisee agrees to deliver a copy of all insurance policies, endorsements, and certificates to the Downey Police Department, which are subject to the approval of the City Attorney as to form, prior to the commencement of the Towing Services. C. Franchisee agrees that its insurance shall be primary insurance with respe ct to any claims, losses, or liability arising from the provision of towing services by Franchisee pursuant to this Agreement, and that the insurance carried by the City of Downey shall be excess and not contributory with the insurance provided by Franchisee. Franchisee further agrees to provide an endorsement to its insurance policies with such language. D. Franchisee agrees to notify City in writing at least thirty (30) days prior to any cancellation or reduction in coverage in Franchisee's insurance coverage for any insurance providing coverage for the services relating to this Agreement. Franchisee ftirther agrees that it will provide the City with prompt and timely notice of any claim made or suit instituted arising from or any way related to the provision of towing services pursuant to this Agreement. Defense coverage must be in addition to policy limits. If umbrella coverage is used, it must include drop down coverage if underlying coverage does not apply, and the umbrella policy must have the same starting and ending date as the primary policy. E. Franchisee shall have the sole right to select its insurance carrier(s), provided such carrier lawfully transacts business in the State of California. However, all insurance required by this Agreement must be issued by companies admitted to do business in California, with an A.M. Best's rating of A:VII or better, unless these requirements are waived by the City Attorney of the City due to unique circumstances. In the event the City Attorney determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, Franchisee agrees that the minimum limits of any insurance policies and/or performance bond required by this Agreement may be changed accordingly upon receipt of written notice from the City Attorney; provided that Franchisee will have the right to appeal a determination of increased coverage by the City Attorney to the City Council of the City within ten (10) days of receipt of notice from the City Attorney. K Franchisee shall not perform any services pursuant to this Agreement unless and until all insurance policies and coverage set forth herein are obtained and copies of said policies, endorsements and certificates are provided to the City in accordance with the provisions specified above. 15 65186,0021 1\40937549.2 Franchisee's employees shall be covered by Worker's Compensation insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California, and any other insurance requirements that may be required under federal, state, and/or local law. 32. ASSIGNMENT. 1 11 U 1 011111 make a written request to the Chief of Police for a transfer or assignment of the Agreement. The written request, along with a deposit fee of one thousand dollars ($1,000.00) to cover the City's reasonable investigation costs, and review of the proposed sale agreement or other document at least one hundred twenty (120) calendar days before the requested effective transfer or assignment date. The City shall investigate the proposed transferee or assignee and determine whether the transferee or assignee is qualified to serve as a tow truck operator pursuant to the C�06&6ff Police Department determines that the proposed transferee or assignee is qualified to be a tow truck operator, it will recommend that the City Council approve the transfer or assignment. Such decision shall be in the sole and absolute discretion of the City Council. Upon completion of the administrative and legal costs associated with the City's review of Franchisee's request for a transfer or assignment of the Agreement, and refund of a portion of the initial $1,000 deposit or request additional funds as appropriate. Any attempt to sell, transfer, lease, assign or otherwise - without the nrior written consent of the Citv Council shall be null and 33. RISK OF DAMAGE. Franchisee murnis all R-11MW uj r ranumsee, its ernpioye"RI", s. ATTI Tia Sli Maims, aerrianas or iiaDiff77M%-I' out of or encountered in connection with this Agreement shall be borne by Franchisee. 34. OFFICIAL POLICE TOW SERVICE/ DOWNEY POLICE DEPARTMENT COMMUNICATIONS. The Field Operations Captain, or his/her designee, shall conduct meetings to discuss issues of concern with respect to performance by Franchisee under the Agreement, These meetings shall be mandatory for the operator, or his/her designee. The Downey Police Department shall give the operator five (5) days advance written notice of these meetings. 16 65186.0021 1\40937549.2 The Downey Police Department will investigate alleged violations of this Agreement and/or violations of Federal, State or local laws in the provision of Towing Services pursuant to this Agreement. Franchisee will be notified of the findings in writing within thirty (30) days of completion of the investigation. to ensure that it is complying with the terms of this Agreement, and that its pafiru&rg dwir i&k-siiL Services to City residents and members of the public. The Franchisee shall be notified of the results in writing within 14 days of such an "integrity check." Franchisee will be billed for the actual costs incurred for such an event(s) in its imwvfmfAlg�,,x-occasion-Fr&nchisce agrees to vart for U�vj to two such "integrity checks" annually. Tffe-ffe-ffTIMIT—rari—ons Captain snaYr-u07MTY--- r,r&R&!xz4 -FmmIL-k�X43-f with the Field Operations Captain having discretion for serious violations of the Agreement, such as criminal offenses. WRITTEN WARNING 2nd Violation within 12 consecutive months WRITTEN WARNING 3rd Violation within 12 consecutive months 30 day SUSPENSION 4th Violation within 12 consecutive months 60 day SUSPENSION serves Franchisee with a notice of suspension, Franchisee may request a hearing within seven (7) calendar days by submitting a request in writing to the Chief of Police. The hearing shall be held as soon as practicable. The hearing shall be conducted by the Chief of Police, or his/her designee. Franchisee shall be entitled to present all relevant information, evidence and circumstances in support of its position. Franchisee shall be notified in writing of the Chief of Police, or his/her 4-1mi s of the date of the hearing. Franchisee may appeal the Chief of Police's or the Chiefs designee's decision concerning a suspension for a hearing de novo before the City Manager, or his/her designee. Franchisee must serve a written notice of appeal on the City pursuant to the notice provisions set forth herein within ten (10) calendar days of the date upon which the Chief of Police, or his/her designee's, decision becomes effective. 17 6 518 6. 00211\40937549.2 Franchisee's notice of appeal must set forth the grounds for its appeal in clear and concise language, which shall include a summary of the claimed factual or decisional error. If Franchisee fails to request a hearing or appeal within the speced deadlines, or fails to appear at a scheduled hearing or appeal, the action taken by the Chief of Police, or his/her designee, shall be final and the suspension shall take effect upon written notification to Franchisee by the Chief of Police. The City Manager, or his/her designee, shall conduct the hearing on the ,?-dministrative appeal. The hearing shall be held as soon as practicable, but in no event later than thirty (30) days from the notice of appeal therefore unless both Partiep i if time for e harim The Citv Manai2er. grn wntin o xte son LIJ all tui or-) as C-o M VA I U-1-Mb me of 1 4.. 8 FRI I U-AQJ I N; IN OQ9W4 FIM i I I r-OB I I I N I M A suspension generally shall not take effect until the hearing and administrative appeal processes have been exhausted. However, the Chief of Police, or his/her desi nee shall have the Whirii -i4iA;i"-tmtef-fedixe:,,mmed:iate wommA conduct by Franchisee or its agents is deemed to constitute a danger to the public heal feto or welfire or constituiks a -gross violation of the terms and conditions of this Agreement- C. Citizen Comp_1aints The Downey Police Department shall be authorized to receive written complaints from citizens regarding Franchisee, and/or Franchisee's principals, officers, employees and agents pertaining to alleged violations of this Agreement and/or Federal, State or local laws. Any such complaint may be investigated by the Downey Police Department and may form the basis for disciplinary action as set forth in this Section or termination of this Agreement. Either party may terminate this Agreement at any time, without cause, upon providing 30 days' written notice to the other party. Upon receipt of the notice of except as may be specifically approved by the City. Franchisee will be entitled to compensation for all services rendered prior to the effectiveness of the notice of termination and for additional services specifically authorized by the City. The City 'Wif, �=rmvmwbv-�l rendered, . ..... ...... .. .... Maim to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of a contract or subcontract; (ii) under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, _j, jr a-ij I Al W, MW lit"ORM11 V-j I I 1 0 SOWN9110M VARL, I Ingbigma 18 65186M21 140937549.2 as a public consultant or contractor; (iii) under state or federal antitrust statutes Mai "I OPI deems proper. In the event that the City terminates the Agreement for cause, Franchisee shall be entitled to the hearing and appeal rights applicable to disciplinary procedures above. However, termination for cause pursuant to this set forth abo,,e. acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials —governmental restrictions 4overnmental reeglationi-19-overnmental controls, udicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party's r�,erfbrmance will be excused for a period equal to the period of such cause for failure to perform. M A. No officer or employee of the City may have any financial interest, direct indirect, in this Agreement, nor may any officer or employee participate in decision relating to the Agreement that effects the officer or employee's financi interest or the financial interest of any corporation, partnership or association i II which the officer or employee is, directly or indirectly interested, in violation I any law, rule or regulation. B. No person may offer, give, or agree to give any officer or employee o o e Ci� f S7 lie officer or employee of the City, nor may any officer or employee of th, ici demand, accept, or agree to accept from another person, a gratuity or an offer in r ci employment in connection with any decision, approval, disapprov recommendation, preparation or any part of a program requirement or a purcha request, influencing the content of any specification or procurement standar rendering of advice, investigation, auditing, or in any other advisory capacity in way pertaining to any program requirement, contract or subcontract, or to a] solicitation or proposal. Any notice required to be given under this Agreement shall be given by placing such notice in the United States mail, postage prepaid, addressed as follows: Franchisee: City: 19 65186.0021 1\40937549.2 Titan Transportation, Inc. Downey Police Department Attn: Omar Camacho, President Attn: Chief of Police 8282 Phlox Street 10911 Brookshire Avenue Downey, CA 90241 fax 562-923-3509 Downey, CA 90241 Interim City Attorney for City of Downey Attn: Lauren Langer I I I I I Brookshire Avenue Downey, CA 90241 (fax) 562-923-6388 P I 1"-V= qumwnfm tzj'�--J The City and Franchisee warrant that the individuals who have signed this Agreement have the legal power, right and authority to enter into this Agreement so as to bind each respective party to perform the conditions contemplated herein. 41. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or 42. &UOKNE)j7 FEES AND LORS. MUSUIld DIC UM•MUJ S 10 S UML TUMF U*Mh 111CLIT01, In UIUL LADVIDITT other relief to which it may be entitled. 43. GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Anv lawsuit brou ht to enforce this Agreement shall be brou in the aMmnriate court in Los Angeles County, State of California. 44. WAIVER �ofany other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be deemed a waiver and no waiver shall be binding unless executed in writing by the party making the waiver. 45. DAYS. Any to in this Agreement referencing time, days, or period for performance shall be deemed to be calendar days and not work days. 20 651860021 1\40937549 2 46. ENTIRE AGREEMENT, oral or written statements or agreements between the City and Franchisee, No supplement, the City and Franchisee. Franchisee represents that it has conducted all due diligence and investigation prior to entering into this Agreement, and has not relied upon any representations that are not set forth herein as an inducement to enter into this Agreement. 47. BINDING QN ASSIGNS. Each and all of the terms, covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the City and Franchisee. 48. CAPTIONS. The captions of the various sections, articles and/or paragraphs of this Agreement are for the convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement or of any part or parts of this Agreement. 49. CONSTRUCTION. �n all c, fair meaning and not strictly for or against any party, it being agreed that the City and Franchisee or their respective agents have all participated in the preparation of this Agreement. 50. COOPERATION BY PARTIES. The City and Franchisee shall fully cooperate with one another in attaining the purposes of this Agreement and, in connection therewith, shall take any such additional further acts and steps ani sign any such additional documents as may be necessary, appropriate and convenient as related Iereto. 21 65186.0021 1\40937549.2 IN WITNESS WHEREOF, the city and Franchisee have caused this Agreement to b(i executed by their respective officers hereunto duly authorized. w CITY OF DOWNEY TITAN By: By: a Frometa, Omar Camacho, President Dated:Dated: '-2ari �Iicia bu�rie, ACC—,Ny �Clerk APPROVED AS TO ORCONC-11M Lauren Langer Les e R. y City Attorney Chief of Poll 22 65186,0021 1\40937549 2